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Exhibit 4.4
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SAFELITE GLASS CORP.
9 7/8% Series C Senior Subordinated Notes due 2006
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INDENTURE
Dated as of December 18, 1998
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STATE STREET BANK AND TRUST COMPANY,
Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1) .......................... 7.10
(a)(2) .......................... 7.10
(a)(3) .......................... N.A.
(a)(4) .......................... N.A.
(b) .......................... 7.8; 7.10
(c) .......................... N.A.
311(a) .......................... 7.11
(b) .......................... 7.11
(c) .......................... N.A.
312(a) .......................... 2.5
(b) .......................... N.A.
(c) .......................... N.A.
313(a) .......................... 7.6
(b)(1) .......................... N.A.
(b)(2) .......................... 7.6
(c) .......................... 7.6
(d) .......................... 7.6
314(a) .......................... 4.18
4.19; 13.2
(b) .......................... N.A.
(c)(1) .......................... 13.4
(c)(2) .......................... 13.4
(c)(3) .......................... N.A.
(d) .......................... N.A.
(e) .......................... 13.5
(f) .......................... 4.19
315(a) .......................... 7.1
(b) .......................... 7.5; 13.2
(c) .......................... 7.1
(d) .......................... 7.1
(e) .......................... 6.11
316(a)(last sentence) .......................... 13.6
(a)(1)(A) .......................... 6.5
(a)(1)(B) .......................... 6.4
(a)(2) .......................... N.A.
(b) .......................... 6.7
317(a)(1) .......................... 6.8
(a)(2) .......................... 6.9
(b) .......................... 2.4
318(a) .......................... 13.1
N.A. means Not Applicable.
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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INDEX
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Affiliate Transaction ................................................. 59
Agent Members ......................................................... 35
Authenticating Agent .................................................. 37
Blockage Notice ....................................................... 87
Change of Control Offer ............................................... 60
Change of Control Payment Date ........................................ 60
Company ............................................................... 1
Covenant Defeasance ................................................... 79
Exchange Global Note .................................................. 31
Exchange Notes ........................................................ 1
Four Quarter Period ................................................... 5
Global Securities ..................................................... 31
Group ................................................................. 4
IAIs .................................................................. 30
incur ................................................................. 53
Initial Notes ......................................................... 1
Institutional Accredited Investor Note ................................ 30
Legal Defeasance ...................................................... 78
Legal Holiday ......................................................... 103
Net Proceeds Offer Amount ............................................. 57
Net Proceeds Offer Payment Date ....................................... 57
Net Proceeds Offer Trigger Date ....................................... 56, 58
Note Register ......................................................... 38
pay the Securities .................................................... 87, 97
Paying Agent .......................................................... 38
Payment Blockage Period ............................................... 87
Permitted Investments ................................................. 13
Private Placement Legend .............................................. 32
QIBs .................................................................. 29
Reference Date ........................................................ 54
Registrar ............................................................. 38
Regulation S .......................................................... 29
Regulation S Legend ................................................... 33
Regulation S Note ..................................................... 30
Regulation S Temporary Global Note .................................... 30
Required Premiums ..................................................... 16
Resale Restriction Termination Date ................................... 39
Restricted Payment .................................................... 53
Rule 144A ............................................................. 29
Rule 144A Global Note ................................................. 30
Rule 144A Note ........................................................ 30
Securities ............................................................ 1
Stock Permitted Investments ........................................... 18
Transactions Date ..................................................... 5
Trustee ............................................................... 1
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE ............................ 1
SECTION 1.1. DEFINITIONS ............................................. 1
SECTION 1.2. OTHER DEFINITIONS ....................................... 28
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT ....... 28
SECTION 1.4. RULES OF CONSTRUCTION ................................... 29
ARTICLE II
THE SECURITIES ........................................................ 29
SECTION 2.1. FORM, DATING AND TERMS ................................. 29
SECTION 2.2. EXECUTION AND AUTHENTICATION ........................... 37
SECTION 2.3. REGISTRAR AND PAYING AGENT ............................. 38
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST .................... 38
SECTION 2.5. SECURITYHOLDER LISTS ................................... 39
SECTION 2.6. TRANSFER AND EXCHANGE .................................. 39
SECTION 2.7. FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS TO INSTITUTIONAL ACCREDITED
INVESTORS ........................................................... 43
SECTION 2.8. FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S .................. 45
SECTION 2.9. REPLACEMENT SECURITIES ................................. 46
SECTION 2.10. OUTSTANDING SECURITIES ................................. 46
SECTION 2.11. TEMPORARY SECURITIES ................................... 47
SECTION 2.12. CANCELLATION ........................................... 47
SECTION 2.13. DEFAULTED INTEREST ..................................... 47
SECTION 2.14. CUSIP NUMBERS .......................................... 48
ARTICLE III
REDEMPTION ............................................................ 48
SECTION 3.1. NOTICES TO TRUSTEE ..................................... 48
SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED ................. 48
SECTION 3.3. NOTICE OF REDEMPTION ................................... 49
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION ......................... 50
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE ............................ 50
SECTION 3.6. SECURITIES REDEEMED IN PART ............................ 50
SECTION 3.7. SPECIAL REDEMPTION. .................................... 50
SECTION 3.8. ENTIRETY OF COLLATERAL ARRANGEMENT ..................... 52
ARTICLE IV
COVENANTS ............................................................. 52
SECTION 4.1. PAYMENT OF SECURITIES .................................. 52
SECTION 4.2. LIMITATION ON LIENS .................................... 52
SECTION 4.3. LIMITATION ON INCURRENCE OF ADDITIONAL
INDEBTEDNESS ........................................................ 53
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PAGE
SECTION 4.4. LIMITATION ON RESTRICTED PAYMENTS .................... 53
SECTION 4.5. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES ............................................ 55
SECTION 4.6. LIMITATION ON ASSET SALES ............................ 56
SECTION 4.7. LIMITATION ON TRANSACTIONS WITH AFFILIATES............ 58
SECTION 4.8. CHANGE OF CONTROL .................................... 60
SECTION 4.9. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED DEBT 60
SECTION 4.10. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES ........ 61
SECTION 4.11. LIMITATION ON FUTURE GUARANTEES ...................... 61
SECTION 4.12. CONDUCT OF BUSINESS .................................. 61
SECTION 4.13. MAINTENANCE OF OFFICE OR AGENCY ...................... 61
SECTION 4.14. CORPORATE EXISTENCE .................................. 61
SECTION 4.15. PAYMENT OF TAXES AND OTHER CLAIMS .................... 62
SECTION 4.16. MAINTENANCE OF PROPERTIES AND INSURANCE .............. 62
SECTION 4.17. COMPLIANCE WITH LAWS ................................. 63
SECTION 4.18. ADDITIONAL INFORMATION ............................... 63
SECTION 4.19. FURTHER INSTRUMENTS AND ACTS ......................... 63
ARTICLE V
SUCCESSOR COMPANY ................................................... 63
SECTION 5.1. WHEN COMPANY MAY MERGE OR TRANSFER ASSETS ............ 63
ARTICLE VI
DEFAULTS AND REMEDIES ............................................... 65
SECTION 6.1. EVENTS OF DEFAULT .................................... 65
SECTION 6.2. ACCELERATION ......................................... 67
SECTION 6.3. OTHER REMEDIES ....................................... 68
SECTION 6.4. WAIVER OF PAST DEFAULTS .............................. 68
SECTION 6.5. CONTROL BY MAJORITY .................................. 69
SECTION 6.6. LIMITATION ON SUITS .................................. 69
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT ................. 69
SECTION 6.8. COLLECTION SUIT BY TRUSTEE ........................... 70
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM ..................... 70
SECTION 6.10. PRIORITIES ........................................... 70
SECTION 6.11. UNDERTAKING FOR COSTS ................................ 71
ARTICLE VII
TRUSTEE ............................................................. 71
SECTION 7.1. DUTIES OF TRUSTEE .................................... 71
SECTION 7.2. RIGHTS OF TRUSTEE .................................... 72
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE ......................... 73
SECTION 7.4. TRUSTEE'S DISCLAIMER ................................. 73
SECTION 7.5. NOTICE OF DEFAULTS ................................... 73
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS ........................ 73
SECTION 7.7. COMPENSATION AND INDEMNITY ........................... 74
SECTION 7.8. REPLACEMENT OF TRUSTEE ............................... 75
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER .......................... 75
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PAGE
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION ....................... 76
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY ... 76
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE ................................ 76
SECTION 8.1. DISCHARGE OF LIABILITY ON SECURITIES ................ 76
SECTION 8.2. LEGAL DEFEASANCE AND COVENANT DEFEASANCE ............ 78
SECTION 8.3. CONDITIONS TO DEFEASANCE ............................ 79
SECTION 8.4. APPLICATION OF TRUST MONEY .......................... 81
SECTION 8.5. REPAYMENT TO COMPANY OR THE SUBSIDIARY GUARANTORS ... 81
SECTION 8.6. REINSTATEMENT ....................................... 82
ARTICLE IX
AMENDMENTS .......................................................... 82
SECTION 9.1. WITHOUT CONSENT OF HOLDERS .......................... 82
SECTION 9.2. WITH CONSENT OF HOLDERS ............................. 83
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT ................. 85
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS ....... 85
SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES ............... 86
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS .......................... 86
ARTICLE X
SUBORDINATION ....................................................... 86
SECTION 10.1. AGREEMENT TO SUBORDINATE ............................ 86
SECTION 10.2. LIQUIDATION, DISSOLUTION, BANKRUPTCY ................ 86
SECTION 10.3. DEFAULT ON SENIOR INDEBTEDNESS ...................... 87
SECTION 10.4. ACCELERATION OF PAYMENT OF SECURITIES ............... 88
SECTION 10.5. WHEN DISTRIBUTION MUST BE PAID OVER ................. 88
SECTION 10.6. SUBROGATION ......................................... 88
SECTION 10.7. RELATIVE RIGHTS ..................................... 88
SECTION 10.8. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY ........ 89
SECTION 10.9. RIGHTS OF TRUSTEE AND PAYING AGENT .................. 89
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE ............ 89
SECTION 10.11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE ............................................... 89
SECTION 10.12. TRUST MONEYS NOT SUBORDINATED ....................... 89
SECTION 10.13. TRUSTEE ENTITLED TO RELY ............................ 90
SECTION 10.14. TRUSTEE TO EFFECTUATE SUBORDINATION ................. 90
SECTION 10.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS ...................................................... 90
SECTION 10.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS .......................................... 91
ARTICLE XI
SUBSIDIARY GUARANTEE ................................................ 91
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PAGE
SECTION 11.1. SUBSIDIARY GUARANTEE ................................ 91
SECTION 11.2. UNCONDITIONAL GUARANTEE ............................. 91
SECTION 11.3. SUBORDINATION OF GUARANTEE .......................... 92
SECTION 11.4. SEVERABILITY ........................................ 92
SECTION 11.5. RELEASE OF A SUBSIDIARY GUARANTOR ................... 92
SECTION 11.6. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY ...... 93
SECTION 11.7. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON
CERTAIN TERMS ..................................................... 93
SECTION 11.8. CONTRIBUTION ........................................ 94
SECTION 11.9. WAIVER OF SUBROGATION ............................... 95
SECTION 11.10. WAIVER OF STAY, EXTENSION OR USURY LAWS ............. 96
ARTICLE XII
SUBORDINATION OF GUARANTEES ......................................... 96
SECTION 12.1. AGREEMENT TO SUBORDINATE ............................ 96
SECTION 12.2. LIQUIDATION, DISSOLUTION, BANKRUPTCY ................ 96
SECTION 12.3. DEFAULT ON GUARANTOR SENIOR INDEBTEDNESS ............ 97
SECTION 12.4. ACCELERATION OF PAYMENT OF SECURITIES ............... 98
SECTION 12.5. WHEN PAYMENT OR DISTRIBUTION MUST BE PAID OVER ...... 98
SECTION 12.6. SUBROGATION ......................................... 98
SECTION 12.7. RELATIVE RIGHTS ..................................... 99
SECTION 12.8. SUBORDINATION MAY NOT BE IMPAIRED BY SUBSIDIARY
GUARANTOR ......................................................... 99
SECTION 12.9. RIGHTS OF TRUSTEE AND PAYING AGENT .................. 99
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE ............ 99
SECTION 12.11. ARTICLE XII NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE ............................................... 100
SECTION 12.12. TRUST MONEYS NOT SUBORDINATED ....................... 100
SECTION 12.13. TRUSTEE ENTITLED TO RELY ............................ 100
SECTION 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION ................. 101
SECTION 12.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF GUARANTOR SENIOR
INDEBTEDNESS ...................................................... 101
SECTION 12.16. RELIANCE BY HOLDERS OF GUARANTOR SENIOR INDEBTEDNESS
ON SUBORDINATION PROVISIONS ....................................... 101
ARTICLE XIII
MISCELLANEOUS ....................................................... 101
SECTION 13.1. TRUST INDENTURE ACT CONTROLS ........................ 101
SECTION 13.2. NOTICES ............................................. 101
SECTION 13.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS ......... 102
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT .. 102
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION ....... 102
SECTION 13.6. WHEN SECURITIES DISREGARDED ......................... 103
SECTION 13.7. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR ........ 103
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PAGE
SECTION 13.8. LEGAL HOLIDAYS ...................................... 103
SECTION 13.9. GOVERNING LAW ....................................... 103
SECTION 13.10. NO RECOURSE AGAINST OTHERS .......................... 104
SECTION 13.11. SUCCESSORS .......................................... 104
SECTION 13.12. MULTIPLE ORIGINALS .................................. 104
SECTION 13.13. VARIABLE PROVISIONS ................................. 104
SECTION 13.14. QUALIFICATION OF INDENTURE .......................... 104
SECTION 13.15. TABLE OF CONTENTS; HEADINGS ......................... 104
EXHIBITS
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF EXCHANGE NOTE
EXHIBIT C FORM OF SUPPLEMENTAL INDENTURE
EXHIBIT D FORM OF PLEDGE AND SECURITY AGREEMENT
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INDENTURE dated as of December 18, 1998, among SAFELITE GLASS CORP., a Delaware
corporation (as further defined below, the "COMPANY") and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company, as trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of (i) the Company's 9 7/8%
Series C Senior Subordinated Notes due 2006 (the "INITIAL NOTES"), (ii) if and
when issued in exchange for Initial Notes as provided in the Registration Rights
Agreement (as hereinafter defined), the Company's 9 7/8% Series D Senior
Subordinated Notes due 2006 (the "EXCHANGE NOTES") and (iii) if and when issued
as provided in the Registration Rights Agreement, the Private Exchange
Securities (as defined in the Registration Rights Agreement; together with the
Initial Notes and Exchange Notes, the "SECURITIES"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"1996 Issue Date" means December 20, 1996.
"Acquired Indebtedness" means Indebtedness (i) of a Person or any of
its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or (ii) assumed in connection with the acquisition of
assets from such Person, in each case whether or not incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition. Acquired Indebtedness
shall be deemed to have been incurred, with respect to clause (i) of the
preceding sentence, on the date such Person becomes a Restricted Subsidiary of
the Company and, with respect to clause (ii) of the preceding sentence, on the
date of consummation of such acquisition of assets.
"Affiliate" means a Person who directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, the Company. The term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. Notwithstanding the foregoing, no Person (other than the
Company or any Subsidiary of the Company) in whom a Receivables Entity makes an
Investment in connection with a Qualified Receivables Transaction shall be
deemed to be an Affiliate of the Company or any of its Subsidiaries solely by
reason of such Investment.
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"all or substantially all" shall have the meaning given such phrase in
the Revised Model Business Corporation Act.
"Asset Acquisition" means (a) an Investment by the Company or any
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person which
constitute all or substantially all of the assets of such Person, any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to
any Person other than the Company or a Wholly Owned Restricted Subsidiary of the
Company of (a) any Capital Stock of any Restricted Subsidiary of the Company; or
(b) any other property or assets of the Company or any Restricted Subsidiary of
the Company other than in the ordinary course of business; PROVIDED, HOWEVER,
that Asset Sales shall not include (i) a transaction or series of related
transactions for which the Company or its Restricted Subsidiaries receive
aggregate consideration of less than $1 million, (ii) the sale, lease,
conveyance, disposition or other transfer of all or substantially all of the
assets of the Company as permitted under Article V, (iii) the sale or discount,
in each case without recourse, of accounts receivable arising in the ordinary
course of business, but only in connection with the compromise or collection
thereof, (iv) the factoring of accounts receivable arising in the ordinary
course of business pursuant to arrangements customary in the industry, (v) the
licensing of intellectual property, (vi) disposals or replacements of obsolete
equipment in the ordinary course of business, (vii) the sale, lease, conveyance,
disposition or other transfer by the Company or any Restricted Subsidiary of
assets or property to one or more Wholly Owned Restricted Subsidiaries in
connection with Investments permitted under Section 4.4, (viii) sales of
accounts receivable and related assets of the type specified in the definition
of "Qualified Receivables Transaction" to a Receivables Entity for the fair
market value thereof, including cash in an amount at least equal to 75% of the
book value thereof as determined in accordance with GAAP, and (ix) transfers of
accounts receivable and related assets of the type specified in the definition
of "Qualified Receivables Transaction" (or a fractional undivided interest
therein) by a Receivables Entity in a Qualified
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Receivables Transaction. For the purposes of clause (viii), Purchase Money Notes
shall be deemed to be cash.
"Bank Credit Agreement" means the Credit Agreement dated as of the
1996 Issue Date, among the Company, the other borrowers thereto from time to
time, if any, the lenders party thereto from time to time and The Chase
Manhattan Bank, as agent, together with the related documents thereto
(including, without limitation, any guarantee agreements, promissory notes and
collateral documents), in each case as such agreements may be amended,
supplemented or otherwise modified from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid or extended from time to time (whether
with the original agents and lenders or other agents and lenders or otherwise,
and whether provided under the original Bank Credit Agreement or other credit
agreements or otherwise).
"Bank Indebtedness" means any and all amounts, whether outstanding on
the 1996 Issue Date or thereafter incurred, payable under or in respect of the
Bank Credit Agreement and any related notes, collateral documents, letters of
credit and guarantees, including principal, premium (if any), interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Restricted
Subsidiary of the Company whether or not a claim for post-filing interest is
allowed in such proceedings), fees, charges, expenses, reimbursement
obligations, guarantees and all other amounts payable thereunder or in respect
thereof.
"Board of Directors" means, as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"Business Day" means each day which is not a Legal Holiday.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated) of corporate stock, including each class of common stock
and preferred stock of such Person and (ii) with respect to any Person that is
not a corporation, any and all partnership or other equity interests of such
Person.
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"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof;
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either S&P or Moody's; (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances (or, with respect to foreign
banks, similar instruments) maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the United
States of America or any state thereof or the District of Columbia or any U.S.
branch of a foreign bank having at the date of acquisition thereof combined
capital and surplus of not less than $200 million; (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons (other than
the Principal or its Related Parties) for purposes of Section 13(d) of the
Exchange Act (a "GROUP"), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Indenture); (ii) the
approval by the holders of Capital Stock of the Company of any plan or proposal
for the liquidation or dissolution of the Company (whether or not otherwise in
compliance with the provisions of this Indenture); (iii) any Person or Group
(other than the Principal or its Related Parties) shall become the owner,
directly or indirectly, beneficially or of record, of shares representing more
than 50% of the aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company or (iv) the first day on which a
majority of the members of the Board of Directors of the Company are not
Continuing Directors.
"Change of Control Triggering Event" means the occurrence of a Change
of Control and the failure of the Securities to have a Minimum Rating on the
30th day after the occurrence of such Change of Control.
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"Closing" means the date of the closing of the Transactions.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral Agreement" has the meaning set forth in Section 3.7.
"Company" means Safelite Glass Corp. until a successor replaces it
and, thereafter, means the successor and, for purposes of any provision
contained herein and required by the TIA, each other obligor on the indenture
securities.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and its Restricted Subsidiaries paid or accrued in
accordance with GAAP for such period, (B) Consolidated Interest Expense and
(C) Consolidated Non-Cash Charges.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "FOUR QUARTER PERIOD") ending on or prior to the date of
the transactions giving rise to the need to calculate the Consolidated Fixed
Charge Coverage Ratio (the "TRANSACTION DATE") to Consolidated Fixed Charges of
such Person for the Four Quarter Period. In addition to and without limitation
of the foregoing, for purposes of this definition, "Consolidated EBITDA" and
"Consolidated Fixed Charges" shall be calculated after giving effect on a pro
forma basis for the period of such calculation to (i) the incurrence of any
Indebtedness of such Person or any of its Restricted Subsidiaries (and the
application of the proceeds thereof) giving rise to the need to make such
calculation and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof) occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date, as if such incurrence or repayment, as the case
may be (and the application of the proceeds thereof), occurred on the first day
of the Four Quarter Period, (ii) any Asset Sales or Asset Acquisitions
(including, without limitation, any Asset Acquisition giving rise to the need to
make such calculation as a result of such Person or one of its Restricted
Subsidiaries (including any Person who becomes a Restricted Subsidiary as a
result of the Asset Acquisition) incurring, assuming or otherwise being liable
for Acquired Indebtedness and also including any Consolidated EBITDA (including
any pro forma expense and cost reductions that are (x) directly attributable to
such transaction and (y) factually supportable) attributable to the assets which
are the subject of the Asset Acquisition or Asset Sale during the Four Quarter
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Period) occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction Date,
as if such Asset Sale or Asset Acquisition (including the incurrence, assumption
or liability for any such Indebtedness or Acquired Indebtedness) occurred on the
first day of the Four Quarter Period, (iii) with respect to any such Four
Quarter Period commencing prior to the Recapitalization, the Recapitalization
(including any pro forma expense and cost reductions related thereto that are
(x) directly attributable to such transaction and (y) factually supportable)
shall be deemed to have taken place on the first day of such Four Quarter Period
and (iv) any asset sales or asset acquisitions (including any Consolidated
EBITDA (including any pro forma expense and cost reductions that are
(x) directly attributable to such transaction and (y) factually supportable)
attributable to the assets which are the subject of the asset acquisition or
asset sale during the Four Quarter Period) that have been made by any Person
that has become a Restricted Subsidiary of the Company or has been merged with
or into the Company or any Restricted Subsidiary of the Company during the Four
Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date that would have constituted Asset
Sales or Asset Acquisitions had such transactions occurred when such Person was
a Restricted Subsidiary of the Company or subsequent to such Person's merger
into the Company, as if such asset sale or asset acquisition (including the
incurrence, assumption or liability for any Indebtedness or Acquired
Indebtedness in connection therewith) occurred on the first day of the Four
Quarter Period; PROVIDED that to the extent that clause (ii) or (iv) of this
sentence requires that pro forma effect be given to an asset sale or asset
acquisition, such pro forma calculation shall be based upon the four full fiscal
quarters immediately preceding the Transaction Date of the Person, or division
or line of business of the Person, that is acquired or disposed for which
financial information is available. If such Person or any of its Restricted
Subsidiaries directly or indirectly guarantees Indebtedness of a third Person,
the preceding sentence shall give effect to the incurrence of such guaranteed
Indebtedness as if such Person or any Restricted Subsidiary of such Person had
directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date; (2) if interest on any Indebtedness actually incurred on the Transaction
Date may optionally be determined at an interest rate based upon a factor of a
prime or similar rate, a eurocurrency interbank offered rate, or other rates,
then the interest rate in effect on the
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Transaction Date will be deemed to have been in effect during the Four Quarter
Period; and (3) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Swap Obligations, shall be deemed to accrue at
the rate per annum resulting after giving effect to the operation of such
agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of (i) Consolidated Interest Expense
(excluding amortization or write-off of debt issuance costs in connection with
the Transactions) plus (ii) the product of (x) the amount of all dividend
payments on any series of Preferred Stock of such Person (other than dividends
paid in Qualified Capital Stock) times (y) a fraction, the numerator of which is
one and the denominator of which is one minus the then current effective
consolidated Federal, state and local tax rate of such Person expressed as a
decimal.
"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum of, without duplication, (i) the aggregate of all cash and
non-cash interest expense with respect to all outstanding Indebtedness of such
Person and its Restricted Subsidiaries, including the net costs associated with
Interest Swap Obligations, for such period determined on a consolidated basis in
conformity with GAAP, and (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by such Person
and its Restricted Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" of the Company means, for any period, the
aggregate net income (or loss) of the Company and its Restricted Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
PROVIDED that there shall be excluded therefrom (a) gains and losses from Asset
Sales (without regard to the $1 million limitation set forth in the definition
thereof) or abandonments or reserves relating thereto and the related tax
effects according to GAAP and an increase in the valuation allowance relating to
deferred tax assets recorded in the fourth quarter of 1996 attributable to the
Transactions, (b) gains and losses due solely to fluctuations in currency values
and the related tax effects according to GAAP, (c) items classified as
extraordinary, unusual or nonrecurring gains and losses, and the related tax
effects according to GAAP, (d) the net income (or loss) of any Person acquired
in a pooling of interests transaction accrued prior to the date it becomes a
Restricted Subsidiary of the Company or is merged or consolidated with the
Company or any Restricted Subsidiary of the Company, (e) the net income of any
Restricted Subsidiary of the Company to the extent that the declaration of
dividends or similar distributions by that Restricted Subsidiary of that income
is restricted by contract, operation of law or otherwise, (f) only for purposes
of
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clause (iii) (w) of Section 4.4(a), any amounts included pursuant to clause
(iii) (z) of Section 4.4(a), (g) the net loss of any Person other than a
Restricted Subsidiary of the Company, (h) the net income of any Person, other
than a Restricted Subsidiary, except to the extent of cash dividends or
distributions paid to the Company or a Restricted Subsidiary of the Company by
such Person unless, in the case of a Restricted Subsidiary of the Company who
receives such dividends or distributions, such Restricted Subsidiary is subject
to clause (e) above, (i) one time non-cash compensation charges, including any
arising from existing stock options resulting from any merger or
recapitalization transaction, (j) bonus payments that were paid to senior
management of the Company in connection with the Transactions in an aggregate
amount (together with the bonus payments made under clause (k) below) not to
exceed $7.0 million and (k) bonus payments that were paid to senior management
prior to February 28, 1997 in an aggregate amount not to exceed $400,000 and,
together with the amounts paid under clause (j) not to exceed $7.0 million in
the aggregate.
"Consolidated Non-Cash Charges" means, with respect to any Person for
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charges which
require an accrual of or a reserve for cash charges for any future period).
"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 1996 Issue Date, (ii) was nominated for election or
elected to such Board of Directors with, or whose election to such Board of
Directors was approved by, the affirmative vote of a majority of the Continuing
Directors who were members of such Board of Directors at the time of such
nomination or election or (iii) is any designee of the Principal or its
Affiliates or was nominated by the Principal or its Affiliates or any designees
of the Principals or their Affiliates on the Board of Directors.
"Currency Agreement" means any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Default" means an event or condition the occurrence of which is, or
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Definitive Securities" means certificated Securities, including
Institutional Accredited Investor Notes.
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"Depository" means The Depository Trust Company, its nominees and
their respective successors and assigns, or such other depository institution
hereinafter appointed by the Company.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and
(ii) any other Senior Indebtedness which, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof, are committed to lend up to, at least
$25 million and is specifically designated by the Company in the instrument
evidencing or governing such Senior Indebtedness or another writing as
"Designated Senior Indebtedness" for purposes of this Indenture.
"Disqualified Capital Stock" means that portion of any Capital Stock
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any event
(other than an event which would constitute a Change of Control Triggering
Event), matures (excluding any maturity as the result of an optional redemption
by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof (except, in each case, upon the occurrence of a Change of Control
Triggering Event) on or prior to the final maturity date of the Securities.
"Distribution" means a dividend of up to $67.2 million on the
Company's outstanding Class A Common Stock, a dividend of approximately
$4.7 million representing accrued and unpaid dividends on the Company's 8%
Cumulative Preferred Stock and a redemption of the Company's 8% Cumulative
Preferred Stock for an amount equal to approximately $58.2 million, in each case
paid no more than five Business Days prior to the Vistar Merger.
"Equity Offering" means an offering of Qualified Capital Stock of the
Company (other than the Equity Investment).
"Equity Investment" has the meaning set forth in the Offering
Memorandum.
"Existing Notes" means the $100 million aggregate principal amount of
9 7/8% Senior Subordinated Notes due 2006.
"Existing Note Indenture" means the Indenture dated as of December 20,
1996 between the Company and Fleet National Bank, as trustee, as amended by the
First Supplemental Indenture dated as of December 12, 1997, and as the same may
be further amended, supplemented or otherwise modified from time to time.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
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"Exchange Global Note" has the meaning set forth in Section 2.1.
"fair market value" means, unless otherwise specified, with respect to
any asset or property, the price which could be negotiated in an arm's-length,
free market transaction, for cash, between a willing seller and a willing and
able buyer, neither of whom is under undue pressure or compulsion to complete
the transactions. Fair market value shall be determined by the Board of
Directors of the Company acting reasonably and in good faith and shall be
evidenced by a resolution of the Board of Directors of the Company delivered to
the Trustee.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect on the 1996 Issue Date, including, without
limitation, those 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 approved by a significant segment
of the accounting profession.
"Global Security" has the meaning set forth in Section 2.1.
"guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such Indebtedness of the payment thereof or
to protect such obligee against loss in respect thereof (in whole or in part);
PROVIDED, HOWEVER, that the term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee" means the guarantee of Subsidiary Guarantors set forth in
Article XI and any additional guarantee of the Securities executed by any
Subsidiary of the Company as evidenced by a supplemental indenture substantially
in the form of Exhibit C.
"Guarantor Senior Indebtedness" means, with respect to any Subsidiary
Guarantor, (i) any Indebtedness of such Subsidiary Guarantor under the Bank
Credit Agreement or in respect of Bank Indebtedness and (ii) all Indebtedness of
such Subsidiary Guarantor, including in the case of both (i) and (ii) interest
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11
thereon (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to such Subsidiary Guarantor whether
or not a claim for post-filing interest is allowed in such proceedings), whether
outstanding on the 1996 Issue Date or thereafter incurred, unless in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding it is expressly provided that such obligations are not superior in
right of payment to the Guarantee of such Subsidiary Guarantor or a guarantee in
respect of the Existing Notes; PROVIDED, HOWEVER, that Guarantor Senior
Indebtedness shall not include (1) any obligation of such Subsidiary Guarantor
to a Subsidiary of such Subsidiary Guarantor or to any Subsidiary of the
Company, (2) any liability for Federal, state, local or other taxes owed or
owing by such Subsidiary Guarantor, (3) any accounts payable or other liability
to trade creditors arising in the ordinary course of business (including
guarantees thereof or instruments evidencing such liabilities), (4) any
Indebtedness of such Subsidiary Guarantor which is expressly subordinate in
right of payment to any other Indebtedness of such Subsidiary Guarantor, (5) any
obligations with respect to any Capital Stock or (6) that portion of any
indebtedness incurred in violation of Section 4.3 (but, as to any such
obligation, no such violation shall be deemed to exist for purposes of this
clause (6) if the holder(s) of such obligation or their representative and the
Trustee shall have received an Officers' Certificate of such Subsidiary
Guarantor to the effect that the incurrence of such Indebtedness does not (or,
in the case of revolving credit Indebtedness, that the incurrence of the entire
committed amount thereof at the date on which the initial borrowing thereunder
is made would not) violate such provisions of this Indenture).
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" means with respect to any Person, without duplication,
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all Capitalized Lease Obligations of such Person, (iv) all obligations of
such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations and all obligations under any title retention
agreement (but excluding trade accounts payable arising in the ordinary course
of business), (v) all obligations for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction,
(vi) guarantees and other contingent obligations in respect of Indebtedness
referred to in clauses (i) through (v) above and clause (viii) below, (vii) all
obligations of any other Person of the type referred to in clauses (i) through
(vi) which are secured by any lien on any property or asset of such Person but
which obligations are not assumed by such Person, the amount of such obligation
being deemed to be the
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lesser of the fair market value of such property or asset or the amount of the
obligation so secured, (viii) all obligations under currency swap agreements and
interest swap agreements of such Person and (ix) all Disqualified Capital Stock
issued by such Person with the amount of Indebtedness represented by such
Disqualified Capital Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase price, but
excluding accrued dividends, if any. For purposes hereof, (x) the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the fair market
value of such Disqualified Capital Stock, such fair market value shall be
determined reasonably and in good faith by the Board of Directors of the issuer
of such Disqualified Capital Stock and (y) any transfer of accounts receivable
or other assets which constitute a sale for purposes of GAAP shall not
constitute Indebtedness hereunder.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Institutional Accredited Investor Note" has the meaning set forth in
Section 2.1.
"Interest Swap Obligations" means the obligations of any Person,
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount.
"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
or capital contribution to (by means of any transfer of cash or other property
to others or any payment for property or services for the account or use of
others), or any purchase or acquisition by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude extensions of trade credit by the
Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be. For the purposes of Section 4.4, (i)
"Investment" shall include and be valued at the fair market value of the net
assets of any Restricted Subsidiary at the time that such Restricted Subsidiary
is designated an Unrestricted Subsidiary and shall exclude the fair market value
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13
of the net assets of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary and (ii) the
amount of any Investment shall be the original cost of such Investment plus the
cost of all additional Investments by the Company or any of its Restricted
Subsidiaries, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment, reduced by
the payment of dividends or distributions (including tax sharing payments) in
connection with such Investment or any other amounts received in respect of such
Investment; PROVIDED that no such payment of dividends or distributions or
receipt of any such other amounts shall reduce the amount of any Investment if
such payment of dividends or distributions or receipt of any such amounts would
be included in Consolidated Net Income. If the Company or any Restricted
Subsidiary of the Company sells or otherwise disposes of any common stock of any
direct or indirect Restricted Subsidiary of the Company such that, after giving
effect to any such sale or disposition, the Company no longer owns, directly or
indirectly, 100% (or 80% in the case of clause (ix) of the definition of
"PERMITTED INVESTMENTS") of the outstanding common stock of such Restricted
Subsidiary, the Company shall be deemed to have made an Investment on the date
of any such sale or disposition equal to the fair market value of the common
stock of such Restricted Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the Securities.
"Legal Holiday" has the meaning ascribed in Section 13.8.
"Letter of Credit" has the meaning set forth in Section 3.7.
"Lien" means any lien, mortgage, deed of trust, pledge, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Minimum Rating" means either (i) a rating of at least BBB- (or
equivalent successor rating) by S&P or (ii) a rating of at least Baa3 (or
equivalent successor rating) by Moody's.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest)
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received by the Company or any of its Subsidiaries from such Asset Sale net of
(a) out-of-pocket expenses and fees relating to such Asset Sale (including,
without limitation, legal, accounting and investment banking fees and sales
commissions), (b) taxes paid or payable after taking into account any reduction
in consolidated tax liability due to available tax credits or deductions and any
tax sharing arrangements, (c) repayment of Senior Indebtedness that is required
to be repaid in connection with such Asset Sale, (d) any portion of cash
proceeds which the Company determines in good faith should be reserved for
post-closing adjustments, it being understood and agreed that on the day that
all such post-closing adjustments have been determined, the amount (if any) by
which the reserved amount in respect of such Asset Sale exceeds the actual
post-closing adjustments payable by the Company or any of its Subsidiaries shall
constitute Net Cash Proceeds on such date; PROVIDED that, in the case of the
sale by the Company of an asset constituting an Investment (other than a
Permitted Investment), the "Net Cash Proceeds" in respect of such Asset Sale
shall not include the lesser of (x) the cash received with respect to such Asset
Sale and (y) the initial amount of such Investment, less, in the case of clause
(y), all amounts (up to an amount not to exceed the initial amount of such
Investment) received by the Company with respect to such Investment, whether by
dividend, sale, liquidation or repayment, in each case prior to the date of such
Asset Sale.
"Non-Voting Preferred Stock" means the Company's 8% Non-Voting
Preferred Stock, $.01 par value per share, issued by the Company as partial
merger consideration in the Vistar Merger.
"Note Register" means the register of Securities maintained by the
Trustee, pursuant to Section 2.3.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness, without duplication.
"Offering Memorandum" means the Offering Memorandum dated December 15,
1998 relating to the Initial Notes; PROVIDED that after the issuance of Exchange
Notes, all references herein to "Offering Memorandum" shall be deemed references
to the prospectus relating to the Exchange Notes.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or the Secretary of the Company, as applicable.
"Officers' Certificate" means a certificate signed by two Officers.
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"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Indebtedness" means, without duplication, (i) the
Securities, the Guarantees, the Existing Notes and the guarantees thereof,
(ii) Indebtedness incurred pursuant to the Bank Credit Agreement in an aggregate
principal amount (x) prior to completion of the Equity Investment, not to exceed
$450 million and (y) thereafter, at any time outstanding not to exceed $388.6
million (A) less the aggregate amount of Indebtedness of a Receivables Entity in
a Qualified Receivables Transaction, (B) less the amount of all mandatory
principal payments actually made since the Issue Date by the Company in respect
of term loans thereunder (excluding (1) any such payments to the extent
refinanced at the time of payment under a replaced Bank Credit Agreement,
(2) any such payments relating to the Sale of Excluded Assets in an aggregate
amount not to exceed $30 million and (3) any such payments made with the
proceeds of the Securities and the Equity Investment) and (C) in the case of a
revolving facility, reduced by any required permanent repayments since the Issue
Date (which are accompanied by a corresponding permanent commitment reduction)
thereunder, (iii) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the 1996 Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually paid or
permanent reductions thereon since the 1996 Issue Date, (iv) Interest Swap
Obligations of the Company or any of its Restricted Subsidiaries covering
Indebtedness of the Company or any of its Restricted Subsidiaries; PROVIDED that
any Indebtedness to which any such Interest Swap Obligations correspond is
otherwise permitted to be incurred under this Indenture; PROVIDED, FURTHER, that
such Interest Swap Obligations are entered into, in the judgment of the Company,
to protect the Company and its Restricted Subsidiaries from fluctuation in
interest rates on their respective outstanding Indebtedness, (v) Indebtedness
under Currency Agreements, (vi) intercompany Indebtedness owed by the Company to
any Wholly Owned Restricted Subsidiary of the Company or by any Restricted
Subsidiary of the Company to the Company or any Wholly Owned Restricted
Subsidiary of the Company, (vii) Acquired Indebtedness of the Company or any
Restricted Subsidiary of the Company to the extent the Company could have
incurred such Indebtedness in accordance with Section 4.3 on the date such
Indebtedness became Acquired Indebtedness; PROVIDED that, in the case of
Acquired Indebtedness of a Restricted Subsidiary of the Company, such Acquired
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary of the Company,
(viii) guarantees by the Company and its Wholly Owned Restricted Subsidiaries of
each other's Indebtedness; PROVIDED that such Indebtedness is permitted to be
incurred hereunder, including, with respect to guarantees by Wholly Owned
Restricted Subsidiaries of the Company, Section 4.11, (ix) Indebtedness
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arising from the honoring by a bank or other financial institution of a check,
draft or other similar instrument inadvertently drawn against insufficient funds
in the ordinary course of business; PROVIDED that such Indebtedness is
extinguished within five business days of its incurrence, (x) any refinancing,
modification, replacement, renewal, restatement, refunding, deferral, extension,
substitution, supplement, reissuance or resale of existing or future
Indebtedness, including any additional Indebtedness incurred to pay interest or
premiums required by the instruments governing such existing or future
Indebtedness as in effect at the time of issuance thereof ("REQUIRED PREMIUMS")
and fees in connection therewith; PROVIDED that any such event shall not
(1) result in an increase in the aggregate principal amount of Permitted
Indebtedness (except to the extent such increase is a result of a simultaneous
incurrence of additional Indebtedness (A) to pay Required Premiums and related
fees or (B) otherwise permitted to be incurred under this Indenture) of the
Company and its Restricted Subsidiaries and (2) create Indebtedness with a
Weighted Average Life to Maturity at the time such Indebtedness is incurred that
is less than the Weighted Average Life to Maturity at such time of the
Indebtedness being refinanced, modified, replaced, renewed, restated, refunded,
deferred, extended, substituted, supplemented, reissued or resold (except that
this subclause (2) will not apply in the event the Indebtedness being
refinanced, modified, replaced, renewed, restated, refunded, deferred, extended,
substituted, supplemented, reissued or resold was originally incurred in
reliance upon clause (vi) or (xvii) of this definition); PROVIDED that no
Restricted Subsidiary of the Company that is not a Subsidiary Guarantor may
refinance any Indebtedness pursuant to this clause (x) other than its own
Indebtedness, (xi) Indebtedness (including Capitalized Lease Obligations)
incurred by the Company or any of its Restricted Subsidiaries since the 1996
Issue Date to finance the purchase, lease or improvement of property (real or
personal) or equipment (whether through the direct purchase of assets or the
Capital Stock of any Person owning such assets) in an aggregate principal amount
outstanding not to exceed $5 million at the time of any incurrence thereof
(which amount may, but need not, be incurred in whole or in part under the Bank
Credit Agreement), (xii) the incurrence by a Receivables Entity of Indebtedness
in a Qualified Receivables Transaction that is not recourse to the Company or
any Subsidiary of the Company (except for Standard Securitization Undertakings),
(xiii) Indebtedness incurred by the Company or any of its Restricted
Subsidiaries constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business, including, without limitation,
letters of credit in respect of workers' compensation claims or self-insurance,
or other Indebtedness with respect to reimbursement type obligations regarding
workers' compensation claims, (xiv) Indebtedness arising from agreements of the
Company or a Restricted Subsidiary of the Company providing for indemnification,
adjustment of purchase price, earn out or other
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similar obligations, in each case, incurred or assumed in connection with the
disposition of any business, assets or a Restricted Subsidiary of the Company,
other than guarantees of Indebtedness incurred by any Person acquiring all or
any portion of such business, assets or Restricted Subsidiary for the purpose of
financing such acquisition, PROVIDED that the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and its Restricted Subsidiaries in connection
with such disposition, (xv) obligations in respect of performance and surety
bonds and completion guarantees provided by the Company or any Restricted
Subsidiary of the Company in the ordinary course of business, (xvi) Indebtedness
of Vistar constituting Capitalized Lease Obligations in an aggregate principal
amount not to exceed $2 million and other indebtedness of Vistar constituting
unsecured Indebtedness in an aggregate principal amount not to exceed
$8 million, in each case which was assumed by the Company upon consummation of
the Vistar Merger, and (xvii) additional Indebtedness of the Company and its
Restricted Subsidiaries in an aggregate principal amount not to exceed
$10 million at any one time outstanding (which amount may, but need not, be
incurred in whole or in part under the Bank Credit Agreement).
"Permitted Investments" means (i) Investments by the Company or any
Restricted Subsidiary of the Company in any Wholly Owned Restricted Subsidiary
of the Company (whether existing on the 1996 Issue Date or created thereafter)
and Investments in the Company by any Restricted Subsidiary of the Company;
PROVIDED that, in the case of an Investment by the Company or any Restricted
Subsidiary of the Company in any Wholly Owned Restricted Subsidiary of the
Company, such Wholly Owned Restricted Subsidiary is not restricted from making
dividends or similar distributions by contract, operation of law or otherwise;
(ii) cash and Cash Equivalents; (iii) Investments existing on the 1996 Issue
Date and Investments made on the 1996 Issue Date pursuant to the
Recapitalization Agreement; (iv) loans and advances to employees and officers of
the Company and its Restricted Subsidiaries since the 1996 Issue Date not in
excess of $1 million at any one time outstanding; (v) accounts receivable
created or acquired in the ordinary course of business; (vi) Currency Agreements
and Interest Swap Obligations entered into in the ordinary course of the
Company's or its Restricted Subsidiaries' businesses and otherwise in compliance
with this Indenture; (vii) Investments in securities of trade creditors or
customers received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers; (viii)
guarantees by the Company or any of its Restricted Subsidiaries of Indebtedness
otherwise permitted to be incurred by the Company or any of its Restricted
Subsidiaries under this Indenture; (ix) Investments by the Company or any
Restricted Subsidiary of the Company in a Person, if as a result of such
Investment (A) such
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Person becomes a Wholly-Owned Restricted Subsidiary of the Company or (B) such
Person is merged, consolidated or amalgamated with or into, or transfers or
conveys all or substantially all of its assets to, or is liquidated into, the
Company or a Wholly Owned Restricted Subsidiary of the Company; (x) additional
Investments having an aggregate fair market value, taken together with all other
Investments made (or as if made) since the 1996 Issue Date pursuant to this
clause (x) that are at the time outstanding, not exceeding $2 million at the
time of such Investment (with the fair market value of each Investment being
measured at the time made and without giving effect to subsequent changes in
value), plus an amount equal to (A) 100% of the aggregate net cash proceeds
received by the Company from any Person (other than a Subsidiary of the Company)
from the issuance and sale subsequent to the 1996 Issue Date of Qualified
Capital Stock of the Company (including Qualified Capital Stock issued upon the
conversion of convertible Indebtedness or in exchange for outstanding
Indebtedness or as capital contributions to the Company (other than from a
Subsidiary)) and (B) without duplication of any amounts included in clause
(x)(A) above, 100% of the aggregate net cash proceeds of any equity contribution
received by the Company since the 1996 Issue Date from a holder of the Company's
Capital Stock, that in the case of amounts described in clause (x)(A) or (x)(B)
are applied by the Company within 180 days after receipt, to make additional
Permitted Investments under this clause (x) (such additional Permitted
Investments being referred to collectively as "STOCK PERMITTED INVESTMENTS");
(xi) any Investment by the Company or a Wholly Owned Subsidiary of the Company
in a Receivables Entity or any Investment by a Receivables Entity in any other
Person in connection with a Qualified Receivables Transaction; PROVIDED that any
Investment in a Receivables Entity is in the form of a Purchase Money Note or an
equity interest; (xii) Investments received by the Company or its Restricted
Subsidiaries as consideration for asset sales, including Asset Sales; PROVIDED
in the case of an Asset Sale, such Asset Sale is effected in compliance with
Section 4.6. Any net cash proceeds that are used by the Company or any of its
Restricted Subsidiaries to make Stock Permitted Investments pursuant to clause
(x) of this definition shall not be included in subclauses (x) and (y) of clause
(iii) of Section 4.4(a).
"Permitted Liens" means the following types of Liens:
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries shall
have set aside on its books such reserves as may be required pursuant to GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen and other Liens imposed by law
incurred in the ordinary course of
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business for sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by GAAP
shall have been made in respect thereof;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security, including any Lien securing letters of credit
issued in the ordinary course of business consistent with past practice in
connection therewith, or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases, government contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money);
(iv) judgment Liens not giving rise to an Event of Default;
(v) easements, rights-of-way, zoning restrictions and other similar
charges or encumbrances in respect of real property not interfering in any
material respect with the ordinary conduct of the business of the Company or any
of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation;
(vii) purchase money Liens to finance property or assets of the
Company or any Restricted Subsidiary of the Company acquired in the ordinary
course of business; PROVIDED, HOWEVER, that (A) the related purchase money
Indebtedness shall not exceed the cost of such property or assets and shall not
be secured by any property or assets of the Company or any Restricted Subsidiary
of the Company other than the property and assets so acquired and (B) the Lien
securing such Indebtedness shall be created within 90 days of such acquisition;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of bankers'
acceptances issued or created for the account of such Person to facilitate the
purchase, shipment, or storage of such inventory or other goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the Company or
any of its Restricted Subsidiaries, including rights of offset and set-off;
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(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens securing Indebtedness under Currency Agreements;
(xiii) Liens securing Acquired Indebtedness incurred in reliance on
clause (vii) of the definition of Permitted Indebtedness; PROVIDED that such
Liens do not extend to or cover any property or assets of the Company or of any
of its Restricted Subsidiaries other than the property or assets that secured
the Acquired Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or a Restricted Subsidiary of the Company;
(xiv) Liens on assets transferred to a Receivables Entity or on assets
of a Receivables Entity, in either case incurred in connection with a Qualified
Receivables Transaction;
(xv) leases or subleases granted to others that do not materially
interfere with the ordinary course of business of the Company and its Restricted
Subsidiaries;
(xvi) Liens arising from filing Uniform Commercial Code financing
statements regarding leases;
(xvii) Liens on property of a Person existing at the time such Person
is acquired by, or such Person is merged into or consolidated or amalgamated
with, the Company or any Restricted Subsidiary of the Company; PROVIDED that
such Liens were not created in contemplation of such acquisition, merger,
consolidation or amalgamation and do not extend to any assets other than those
of the Person acquired by, or merged into or consolidated or amalgamated with,
the Company or any Restricted Subsidiary of the Company.
(xviii) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods; and
(xix) Liens existing on the 1996 Issue Date, together with any Liens
securing Indebtedness incurred in reliance on clause (x) of the definition of
Permitted Indebtedness in order to refinance the Indebtedness secured by Liens
existing on the 1996 Issue Date; PROVIDED that the Liens securing the
refinancing Indebtedness shall not extend to property other than that pledged
under the Liens securing the Indebtedness being refinanced.
"Person" means an individual, partnership, corporation, unincorporated
organization, trust or joint venture, or a governmental agency or political
subdivision thereof.
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"Pledge Agreement" has the meaning set forth in Section 3.7.
"Pledged Funds" has the meaning set forth in Section 3.7.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"Principal" means Thomas H. Lee Company.
"Private Exchange Securities" shall have the meaning set forth in the
Registration Rights Agreement.
"Productive Assets" means assets (including Capital Stock) of a kind
used or usable in the businesses of the Company and its Restricted Subsidiaries
as, or related to such business, conducted on the date of the relevant Asset
Sale.
"Purchase Money Note" means a promissory note of a Receivables Entity
evidencing a line of credit, which may be irrevocable, from the Company or any
Subsidiary of the Company in connection with a Qualified Receivables Transaction
to a Receivables Entity, which note shall be repaid from cash available to the
Receivables Entity, other than amounts required to be established as reserves
pursuant to agreements, amounts paid to investors in respect of interest,
principal and other amounts owing to such investors and amounts owing to such
investors and amounts paid in connection with the purchase of newly generated
receivables.
"QIB" has the meaning set forth in Section 2.1.
"Qualified Capital Stock" means any stock that is not Disqualified
Capital Stock.
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Company or any of its Subsidiaries
pursuant to which the Company or any or its Subsidiaries may sell, convey or
otherwise transfer to (a) a Receivables Entity (in the case of a transfer by the
Company or any of its Subsidiaries) and (b) any other Person (in the case of a
transfer by a Receivables Entity), or may grant a security interest in, any
accounts receivable (whether now existing or arising in the future) of the
Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are
customarily transferred or in respect of which security interests are
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customarily granted in connection with asset securitization transactions
involving accounts receivable.
"Recapitalization" means the transactions which occurred on the 1996
Issue Date as contemplated by the Recapitalization Agreement.
"Recapitalization Agreement" means the Recapitalization Agreement and
Plan of Merger and Stock Purchase Agreement, dated as of November 8, 1996, among
the Company, Lear Siegler Holdings Corp., Lite Acquisition Corp., LSNWY Corp.,
the LS Selling Stockholders and L.S. Acquisition Corp.
"Receivables Entity" means a Wholly Owned Subsidiary of the Company
(or another Person in which the Company or any Subsidiary of the Company makes
an Investment and to which the Company or any Subsidiary of the Company
transfers accounts receivable and related assets) which engages in no activities
other than in connection with the financing of accounts receivable and which is
designated by the Board of Directors of the Company (as provided below) as a
Receivables Entity (a) no portion of the Indebtedness or any other Obligations
(contingent or otherwise) of which (i) is guaranteed by the Company or any
Subsidiary of the Company (excluding guarantees of Obligations (other than the
principal of, and interest on, Indebtedness) pursuant to Standard Securitization
Undertakings), (ii) is recourse to or obligates the Company or any Subsidiary of
the Company in any way other than pursuant to Standard Securitization
Undertakings or (iii) subjects any property or asset of the Company or any
Subsidiary of the Company, directly or indirectly, contingently or otherwise, to
the satisfaction thereof, other than pursuant to Standard Securitization
Undertakings, (b) with which neither the Company nor any Subsidiary of the
Company has any material contract, agreement, arrangement or understanding other
than on terms no less favorable to the Company or such Subsidiary than those
that might be obtained at the time from Persons that are not Affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable, and (c) to which neither the
Company nor any Subsidiary of the Company has any obligation to maintain or
preserve such entity's financial condition or cause such entity to achieve
certain levels of operating results. Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the resolution of the Board of Directors of the
Company giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
"Redemption Event" shall mean (i) an underwritten initial public
offering of the common stock of the Company or (ii) a Change of Control.
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"Registered Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Registrar" shall have the meaning set forth in Section 2.3.
"Registration Rights Agreement" means the Exchange and Registration
Rights Agreement, dated December 18, 1998, among the Company, Chase Securities
Inc., BT Alex. Brown Incorporated and Salomon Brothers Inc.
"Regulation S Note" has the meaning set forth in Section 2.1.
"Regulation S Global Note" has the meaning set forth in Section 2.1.
"Regulation S Legend" has the meaning set forth in Section 2.1.
"Related Party" means Thomas H. Lee Company and any Affiliate of
Thomas H. Lee Company.
"Release Date" has the meaning set forth in Section 2.1.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Indebtedness; PROVIDED
that if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Indebtedness in respect of any Designated
Senior Indebtedness.
"Restricted Period" means the 40 consecutive days beginning on and
including the later of (A) the day on which the Initial Notes are offered to
persons other than distributors (as defined in Regulation S under the Securities
Act) and (B) the Issue Date.
"Restricted Subsidiary" of any Person means any Subsidiary of such
Person which at the time of determination is not an Unrestricted Subsidiary.
"Restricted Securities Legend" means the Private Placement Legend set
forth in clause (A) of Section 2.1(c) or the Regulation S Legend set forth in
clause (B) of Section 2.1(c), as applicable.
"Rule 144A" has the meaning set forth in Section 2.1.
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"Rule 144A Note" has the meaning set forth in Section 2.1.
"Rule 144A Global Note" has the meaning set forth in Section 2.1.
"Sale of Excluded Assets" means an individual Asset Sale which results
in net proceeds of no less than $10 million and relates exclusively to property,
plant and equipment existing on the 1996 Issue Date, together with improvements,
repairs, modifications and additions thereon in the ordinary course of business.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the 1996 Issue Date
or later acquired, which has been or is to be sold or transferred by the Company
or such Restricted Subsidiary to such Person or to any other Person from whom
funds have been or are to be advanced by such Person on the security of such
Property.
"S&P" means Standard & Poor's Ratings Service, a division of The
McGraw-Hill Companies, Inc. and its successors.
"Secured Indebtedness" means any Indebtedness of the Company secured
by a Lien.
"Securities Custodian" means the custodian with respect to the Global
Security (as appointed by the Depositary), or any successor Person thereto and
shall initially be the Trustee.
"Securities Intermediary" has the meaning set forth in Section 3.7.
"Securityholder" or "Holder" means the Person in whose name a Security
is registered on the Registrar's books.
"Senior Indebtedness" means (i) the Bank Indebtedness and (ii) all
Indebtedness of the Company, including interest thereon (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company or any Restricted Subsidiary of the
Company whether or not a claim for post-filing interest is allowed in such
proceedings), whether outstanding on the 1996 Issue Date or thereafter incurred,
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is expressly provided that such obligations are not
superior in right of payment to the Securities or the Existing Notes; PROVIDED,
HOWEVER, that Senior Indebtedness shall not include (1) any obligation of the
Company to any Subsidiary of the Company,
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(2) any liability for Federal, state, local or other taxes owed or owing by the
Company, (3) any accounts payable or other liability to trade creditors arising
in the ordinary course of business (including guarantees thereof or instruments
evidencing such liabilities), (4) any Indebtedness of the Company which is
expressly subordinate in right of payment to any other Indebtedness of the
Company, including any Senior Subordinated Indebtedness (including, without
limitation, the Existing Notes) and any Subordinated Obligations, (5) any
obligations with respect to any Capital Stock or (6) that portion of any
Indebtedness incurred in violation of Section 4.3 (but, as to any such
obligation, no such violation shall be deemed to exist for purposes of this
clause (6) if the holders(s) of such obligation or their representative and the
Trustee shall have received an Officers' Certificate of the Company to the
effect that the incurrence of such Indebtedness does not (or, in the case of
revolving credit Indebtedness, that the incurrence of the entire committed
amount thereof at the date on which the initial borrowing thereunder is made
would not) violate such provisions of this Indenture).
"Senior Subordinated Indebtedness" means the Securities, the Existing
Notes and any other Indebtedness of the Company that specifically provides that
such Indebtedness is to rank pari passu with the Securities or the Existing
Notes and is not by its express terms subordinate in right of payment to any
Indebtedness of the Company which is not Senior Indebtedness.
"Shelf Registration Statement" has the meaning ascribed thereto in the
Registration Rights Agreement.
"Significant Subsidiary" means, as of any date of determination, for
any Person, each Restricted Subsidiary of such Person which (i) for the most
recent fiscal year of such Person accounted for more than 10% of consolidated
revenues or consolidated net income of such Person or (ii) as at the end of such
fiscal year, was the owner of more than 10% of the consolidated assets of such
Person.
"Special Redemption" has the meaning set forth in Section 3.7.
"Special Redemption Date" has the meaning set forth in Section 3.7.
"Special Redemption Price" has the meaning set forth in Section 3.7.
"Standard Securitization Undertakings" means representations,
warranties, covenants and indemnities entered into by the Company or any
Subsidiary of the Company which are reasonably customary in an accounts
receivable transaction.
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"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision.
"Subordinated Obligation" means any Indebtedness of the Company
(whether outstanding on the 1996 Issue Date or thereafter incurred) which is
expressly subordinate in right of payment to the Securities or the Existing
Notes pursuant to a written agreement.
"Subsidiary" means, with respect to any Person, (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Subsidiary Guarantor" means (i) each of the Company's Subsidiaries
existing on the Issue Date that has guaranteed the Indebtedness under the Bank
Credit Agreement and (ii) each of the Company's Subsidiaries that in the future
executes a supplemental indenture in which such Subsidiary agrees to be bound by
the terms of this Indenture as a Subsidiary Guarantor whether pursuant to the
provisions set forth under Section 4.11 or otherwise.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb) as in effect on the date of this Indenture.
"Transactions" means the recapitalization, merger, stock purchase and
the other transactions contemplated by the Recapitalization Agreement and the
related financings.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer this Indenture, or in the case of a successor trustee, an
officer assigned to the department, division or group performing the corporation
trust work of such successor and assigned to administer this Indenture.
"Unrestricted Subsidiary" of any Person means (i) any Subsidiary of
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; PROVIDED that (x) the
Company
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certifies to the Trustee that such designation complies with Section 4.4 and
(y) each Subsidiary to be so designated and each of its Subsidiaries has not at
the time of designation, and does not thereafter, create, incur, issue, assume,
guarantee or otherwise become directly or indirectly liable with respect to any
Indebtedness pursuant to which the lender has recourse to any of the assets of
the Company or any of its Restricted Subsidiaries. The Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary only if
(x) immediately after giving effect to such designation and treating all
Indebtedness of such Unrestricted Subsidiary as being incurred on such date, the
Company is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.3 and (y) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing provisions.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Vistar" means Vistar, Inc.
"Vistar Merger" means the merger contemplated by the Vistar Merger
Agreement.
"Vistar Merger Agreement" means that certain Merger Agreement, dated
as of October 10, 1997, by and between Vistar and the Company.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any
Restricted Subsidiary of such Person of which all the
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outstanding voting securities (other than directors' qualifying shares or an
immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by such Person or any Wholly Owned Restricted
Subsidiary of such Person.
SECTION 1.2. Other Definitions.
-----------------
Defined in
Term Section
---- -------
"Affiliate Transaction".................................. 4.7
"Agent Member"........................................... 2.1
"Bankruptcy Law"......................................... 6.1
"Blockage Notice"........................................ 10.3
"covenant defeasance option"............................. 8.1(b)
"Custodian".............................................. 6.1
"Definitive Securities".................................. 2.1
"Event of Default"....................................... 6.1
"Global Security"........................................ 2.1(b)
"legal defeasance option"................................ 8.1(b)
"Non-Global Purchaser"................................... 2.1
"Offer" ................................................ 4.6
"pay the Securities"..................................... 10.3
"Paying Agent"........................................... 2.3
"Payment Blockage Period"................................ 10.3
"Registrar".............................................. 2.3
"Restricted Payment"..................................... 4.4
"Rule 144A".............................................. 2.1(b)
"Successor Company"...................................... 5.1
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by the TIA reference to another
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statute or defined by SEC rule have the meanings assigned to them by such
definitions.
SECTION 1.4. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the plural
include the singular;
(6) unsecured Indebtedness shall not be deemed to be subordinate or
junior to Secured Indebtedness merely by virtue of its nature as unsecured
Indebtedness;
(7) the principal amount of any non-interest bearing or other discount
security at any date shall be the principal amount thereof that would be
shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be (i) the
maximum liquidation preference of such Preferred Stock or (ii) the maximum
mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock, whichever is greater.
ARTICLE II
THE SECURITIES
SECTION 2.1. FORM, DATING AND TERMS. (a) The Initial Notes are being
offered and sold by the Company pursuant to a Purchase Agreement, dated December
15, 1998, among the Company, Chase Securities Inc., BT Alex. Brown Incorporated
and Salomon Brothers Inc. The Initial Notes will be resold initially only to
(A) qualified institutional buyers (as defined in Rule 144A under the Securities
Act ("RULE 144A")) in reliance on Rule 144A ("QIBS") and (B) Persons other than
U.S. Persons (as defined in Regulation S under the Securities Act ("REGULATION
S")) in reliance on Regulation S. Such Initial Notes may thereafter be
transferred to among others, QIBs, purchasers in reliance on Regulation S and
IAIs (as defined herein) in accordance with Rule 501 of the Securities Act in
accordance with the procedures described herein.
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Initial Notes offered and sold to qualified institutional buyers in
the United States of America in reliance on Rule 144A (the "RULE 144A NOTE")
will be issued on the Issue Date in the form of a permanent global Security,
without interest coupons, substantially in the form of Exhibit A, which is
hereby incorporated by reference and made a part of this Indenture, including
appropriate legends as set forth in Section 2.1(c) (the "RULE 144A GLOBAL
NOTE"), deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The Rule 144A Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Rule 144A Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold outside the United States of America in
reliance on Regulation S (the "REGULATION S NOTE") will be issued on the Issue
Date in the form of a permanent global Security, without interest coupons,
substantially in the form set forth in Exhibit A, which is hereby incorporated
by reference and made a part of this Indenture, including appropriate legends as
set forth in Section 2.1(c) (a "REGULATION S GLOBAL NOTE"). The Regulation S
Global Note will be deposited with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as hereinafter
provided. The Regulation S Global Note may be represented by more than one
certificate, if so required by the Depositary's rules regarding the maximum
principal amount to be represented by a single certificate. The aggregate
principal amount of the Regulation S Global Note may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Securities resold to institutional "accredited investors" (as defined
in Rules 501(a)(1), (2), (3) and (7) under the Securities Act) who are not QIBs
("IAIS") in the United States of America will be issued in non-global, fully
registered form, without interest coupons, substantially in the form set forth
in Exhibit A, which is hereby incorporated by reference and made a part of this
Indenture, including appropriate legends as set forth in Section 2.1(c), duly
executed by the Company and authenticated by the Trustee as hereinafter provided
(each, an "INSTITUTIONAL ACCREDITED INVESTOR NOTE"). Upon such issuance, the
Trustee shall register such Institutional Accredited Investor Note in the name
of the beneficial owner or owners of such note (or the nominee of such
beneficial owner or owners) and deliver the certificates for such Institutional
Accredited Investor Notes to the respective beneficial owner or owners. Upon
transfer of such Institutional Accredited Investor Notes to a QIB or to a
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Non-U.S. Person, such Institutional Accredited Investor Notes will, unless the
Rule 144A Global Note, in the case of a transfer to a QIB, or the Regulation S
Global Note, in the case of a transfer to a Non-U.S. Person, has previously been
exchanged for Definitive Securities pursuant to Section 2.1(e), be exchanged for
an interest in a Global Security pursuant to the provisions of Section 2.6.
Exchange Notes exchanged for interests in the Rule 144A Note, the
Regulation S Note and the Institutional Accredited Investor Notes will be issued
in the form of a permanent global Security substantially in the form of Exhibit
B, which is hereby incorporated by reference and made a part of this Indenture,
deposited with the Trustee as hereinafter provided, including the appropriate
legend set forth in Section 2.1(c) (the "EXCHANGE GLOBAL NOTE"). The Exchange
Global Note may be represented by more than one certificate, if so required by
the Depositary's rules regarding the maximum principal amount to be represented
by a single certificate.
The Rule 144A Global Note, the Regulation S Global Note and the
Exchange Global Note are sometimes collectively herein referred to as the
"GLOBAL SECURITIES."
The principal of (and premium, if any) and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose in The City of New York, or at such other office or agency of the
Company as may be maintained for such purpose pursuant to Section 2.3; provided,
however, that, at the option of the Company, each installment of interest may be
paid by (i) check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Note Register or (ii) wire transfer to an account
located in the United States maintained by the payee. Payments in respect of
Securities represented by a Global Security (including principal, premium and
interest) will be made by wire transfer of immediately available funds to the
accounts specified by the Depositary.
The Private Exchange Securities shall be in the form of Exhibit A. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage, in addition to those set forth in Exhibits A and B and
in Section 2.1(c). The Company and the Trustee shall approve the forms of the
Securities and any notation, endorsement or legend on them. Each Security shall
be dated the date of its authentication. The terms of the Securities set forth
in Exhibit A and Exhibit B are part of the terms of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to be bound by such terms.
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(b) DENOMINATIONS. The Securities shall be issuable only in fully
registered form, without coupons, and only in denominations of $1,000 and any
integral multiple thereof.
(c) RESTRICTIVE LEGENDS. Unless and until (i) an Initial Note or
Private Exchange Security is sold under an effective registration statement or
(ii) an Initial Note is exchanged for an Exchange Note in connection with an
effective registration statement, in each case pursuant to the Registration
Rights Agreement or a similar agreement,
(A) the Rule 144A Global Note and the Institutional Accredited
Investor Notes shall bear the following legend (the "PRIVATE PLACEMENT LEGEND")
on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED
OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE COMPANY, ANY SUBSIDIARY GUARANTOR OR ANY AFFILIATE OF THE COMPANY
OR ANY SUBSIDIARY GUARANTOR WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER
THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES
THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT
OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION
INVOLVING A MINIMUM PRINCIPAL AMOUNT OF $250,000 OF SECURITIES, FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN
CONNECTION
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WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT
TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND, IN EACH CASE, ONLY IF A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE COMPANY AND
THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE."; and
(B) the Regulation S Global Note shall bear the following legend (the
"REGULATION S LEGEND") on the face thereof:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S.
PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT ("REGULATION S"), (2) BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE")
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND
THE LAST DATE ON WHICH THE COMPANY, ANY SUBSIDIARY GUARANTOR OR ANY
AFFILIATE OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION
S, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, IN EACH CASE IN A TRANSACTION INVOLVING A MINIMUM
PRINCIPAL AMOUNT OF $250,000 OF SECURITIES, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR
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(F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE
TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO
CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM AND IN
THE CASE OF THE FOREGOING CLAUSE (E), A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE COMPANY AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED
AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE
DAY ON WHICH THE SECURITIES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS
(AS DEFINED IN REGULATION S) AND (B) THE DATE OF THE CLOSING OF THE
ORIGINAL OFFERING. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT."
(C) The Global Securities, whether or not an Initial Note, shall bear
the following legend on the face thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL
BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(D) Each Institutional Accredited Investor Note shall also bear the
following additional legend on the face thereof:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER
AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIED WITH THE
FOREGOING RESTRICTIONS.
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(d) BOOK-ENTRY PROVISIONS. (i) This SECTION 2.1(d) shall apply only to
Global Securities deposited with the Trustee, as custodian for the Depositary.
(ii) Each Global Security initially shall (x) be registered in the
name of the Depositary for such Global Security or the nominee of the
Depositary, (y) be delivered to the Trustee as custodian for the Depositary and
(z) bear legends as set forth in SECTION 2.1(C).
(iii) Members of, or participants in, the Depositary ("AGENT MEMBERS")
shall have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of the Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
(iv) In connection with any transfer of a portion of the beneficial
interest in a Global Security pursuant to subsection (e) of this Section to
beneficial owners who are required to hold Definitive Securities or to IAIs who
shall hold certificated Institutional Accredited Investor Notes pursuant to
Section 2.1(a), the Securities Custodian shall reflect on its books and records
the date and a decrease in the principal amount of such Global Security in an
amount equal to the principal amount of the beneficial interest in the Global
Security to be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Definitive Securities of like tenor and
amount.
(v) In connection with the transfer of an entire Global Security to
beneficial owners pursuant to subsection (e) of this Section, such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and
the Company shall execute, and the Trustee shall authenticate and deliver, to
each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Security, an equal aggregate principal amount
of Definitive Securities of authorized denominations.
(vi) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that may
hold interests through Agent
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Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(e) DEFINITIVE SECURITIES. (i) Except as provided below, owners of
beneficial interests in Global Securities will not be entitled to receive
Definitive Securities. If required to do so pursuant to any applicable law or
regulation, beneficial owners may obtain Definitive Securities in exchange for
their beneficial interests in a Global Security upon written request in
accordance with the Depositary's and the Registrar's procedures. In addition,
Definitive Securities shall be transferred to all beneficial owners in exchange
for their beneficial interests in a Global Security if (a) the Depositary
notifies the Company that it is unwilling or unable to continue as depositary
for such Global Security or the Depositary ceases to be a clearing agency
registered under the Exchange Act, at a time when the Depositary is required to
be so registered in order to act as depositary, and in each case a successor
depositary is not appointed by the Company within 90 days of such notice or,
(b) the Company executes and delivers to the Trustee and Registrar an Officers'
Certificate stating that such Global Security shall be so exchangeable or (c) an
Event of Default has occurred and is continuing and the Registrar has received a
request from the Depositary.
(ii) Any Definitive Security delivered in exchange for an interest in
a Global Security pursuant to Section 2.1(d)(iv) or (v) shall, except as
otherwise provided by Section 2.6(c), bear the applicable legend regarding
transfer restrictions applicable to the Definitive Security set forth in Section
2.1(c).
(iii) In connection with the exchange of a Definitive Security for a
beneficial interest in a Global Security pursuant to a transfer of an
Institutional Accredited Investor Note to a QIB or a Non-U.S. Person, upon
receipt by the Trustee of such Institutional Accredited Investor Note, duly
endorsed or accompanied by appropriate instruments of transfer in accordance
with Section 2.6(a), the Trustee shall cancel such Institutional Accredited
Investor Note and cause, or direct the Securities Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Securities Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly. If no
Global Securities are then outstanding, the Company shall issue and the Trustee
shall authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Security in the appropriate principal
amount. The Trustee shall deliver copies of each certification and instruction
received by it to the Depositary and, upon receipt thereof, the Securities
Custodian shall reflect on its books and records the date and an increase in the
principal amount of such Global Security in an amount equal to the principal
amount of the Institutional
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Accredited Investor Note so transferred to reflect the exchange of such
Institutional Accredited Investor Note for an interest in the Global Security.
(iv) In connection with the exchange of a portion of a Definitive
Security for a beneficial interest in a Global Security, the Trustee shall
cancel such Definitive Security, and the Company shall execute, and the Trustee
shall authenticate and deliver, to the transferring Holder a new Definitive
Security representing the principal amount not so transferred.
SECTION 2.2. EXECUTION AND AUTHENTICATION. Two Officers shall sign the
Securities for the Company by manual or facsimile signature. The Company's seal
shall be impressed, affixed, imprinted or reproduced on the Securities and may
be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture.
The Trustee shall authenticate and deliver: (1) Initial Notes for
original issue in an aggregate principal amount of $55 million and (2) Exchange
Notes for issue only in a Registered Exchange Offer and Private Exchange
Securities pursuant to the Registration Rights Agreement, and only in exchange
for Initial Notes of an equal principal amount, in each case upon a written
order of the Company signed by two Officers or by an Officer and either an
Assistant Treasurer or an Assistant Secretary of the Company (a "COMPANY
ORDER"). Such order shall specify the amount of the Securities to be
authenticated and the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Notes, Exchange Notes
or Private Exchange Securities. The aggregate principal amount of Securities
outstanding at any time may not exceed $55 million except as provided in Section
2.9.
The Trustee may appoint an agent (the "AUTHENTICATING AGENT")
reasonably acceptable to the Company to authenticate the Securities. Unless
limited by the terms of such appointment, any such Authenticating Agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent.
In case the Company, pursuant to Article V, shall be consolidated or
merged with or into any other Person or shall
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convey, transfer, lease or otherwise dispose of its properties and assets
substantially as an entirety to any Person, and the successor Person resulting
from such consolidation, or surviving such merger, or into which the Company
shall have been merged, or the Person which shall have received a conveyance,
transfer, lease or other disposition as aforesaid, shall have executed an
indenture supplemental hereto with the Trustee pursuant to Article V, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Order of the successor Person, shall authenticate and deliver
Securities as specified in such order for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 2.2 in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time outstanding for Securities authenticated
and delivered in such new name.
SECTION 2.3. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Securities may be presented for registration of transfer
or for exchange (the "REGISTRAR") and an office or agency where Securities may
be presented for payment (the "PAYING AGENT"). The Registrar shall keep a
register of the Securities and of their transfer and exchange (the "NOTE
REGISTER"). The Company may have one or more co-registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent or co-registrar not a party to this Indenture, which
shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.7. The
Company or any of its domestically incorporated Wholly Owned Restricted
Subsidiaries may act as Paying Agent, Registrar, co-registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Securities.
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST. By at least 10:00
A.M. (New York City time) on the date on which any
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principal of, premium if any, or interest on any Security is due and payable,
the Company shall deposit with the Paying Agent a sum sufficient to pay such
principal or interest when due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all money held by
such Paying Agent for the payment of principal of, premium if any, or interest
on the Securities and shall notify the Trustee of any default by the Company in
making any such payment. If the Company or a Subsidiary acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as a separate
trust fund. The Company at any time may require a Paying Agent (other than the
Trustee) to pay all money held by it to the Trustee and to account for any funds
disbursed by such Paying Agent. Upon complying with this Section, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money delivered to the Trustee. Upon any bankruptcy,
reorganization or similar proceeding with respect to the Company, the Trustee
shall serve as Paying Agent for the Securities.
SECTION 2.5. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall furnish to the Trustee, in writing 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 Securityholders.
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) The following provisions shall apply with respect to any proposed
transfer of a Rule 144A Note or an Institutional Accredited Investor Note prior
to the date which is two years after the later of the date of its original issue
and the last date on which the Company or any affiliate of the Company was the
owner of such Securities (or any predecessor thereto) (the "RESALE RESTRICTION
TERMINATION DATE"):
(i) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a QIB shall be made upon the
representation of the transferee in the form of an assignment on the reverse of
the certificate that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and that
it and any such account is a "qualified institutional buyer" within the meaning
of Rule 144A, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the
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transferor is relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to an IAI shall be made upon
receipt by the Trustee or its agent of a certificate substantially in the form
set forth in Section 2.7 from the proposed transferee and, if requested by the
Company or the Trustee, the delivery of an opinion of counsel, certification
and/or other information satisfactory to each of them; and
(iii) a transfer of a Rule 144A Note or an Institutional Accredited
Investor Note or a beneficial interest therein to a Non-U.S. Person shall be
made upon receipt by the Trustee or its agent of a certificate substantially in
the form set forth in Section 2.8 from the proposed transferee and, if requested
by the Company or the Trustee, the delivery of an opinion of counsel,
certification and/or other information satisfactory to each of them.
(b) The following provisions shall apply with respect to any proposed
transfer of a Regulation S Note prior to the expiration of the Restricted
Period:
(i) a transfer of a Regulation S Note or a beneficial interest therein
to a QIB shall be made upon the representation of the transferee, in the form of
assignment on the reverse of the certificate, that it is purchasing the Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A, and is aware that the sale
to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon its foregoing representations in
order to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest
therein to an IAI shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Section 2.7 from the proposed
transferee and, if requested by the Company or the Trustee, the delivery of an
opinion of counsel, certification and/or other information satisfactory to each
of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest
therein to a Non-U.S. Person shall be made upon receipt by the Trustee or its
agent of a certificate substantially in the form set forth in Section 2.8 hereof
from the proposed transferee and, if requested by the Company or the Trustee,
receipt by the
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Trustee or its agent of an opinion of counsel, certification and/or other
information satisfactory to each of them.
After the expiration of the Restricted Period, interests in the Regulation
S Note may be transferred without requiring the certifications set forth in
Section 2.7, Section 2.8 or any additional certification.
(c) RESTRICTED SECURITIES LEGEND. Upon the transfer, exchange or
replacement of Securities not bearing a Restricted Securities Legend, the
Registrar shall deliver Securities that do not bear a Restricted Securities
Legend. Upon the transfer, exchange or replacement of Securities bearing a
Restricted Securities Legend, the Registrar shall deliver only Securities that
bear a Restricted Securities Legend unless there is delivered to the Registrar
an Opinion of Counsel to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the Securities Act.
(d) The Company shall deliver to the Trustee an Officer's Certificate
setting forth the Resale Restriction Termination Date and the Restricted Period.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.1 and this Section 2.6. The
Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
(e) OBLIGATIONS WITH RESPECT TO TRANSFERS AND EXCHANGES OF SECURITIES.
(i) To permit registrations of transfers and exchanges, the Company
shall, subject to the other terms and conditions of this Article II, execute and
the Trustee shall authenticate Definitive Securities and Global Securities at
the Registrar's or co-registrar's request.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax, assessments, or similar governmental charge payable
in connection therewith (other than any such transfer taxes, assessments or
similar governmental charges payable upon exchange or transfer pursuant to
Sections 4.6, 4.8 or 9.5 or pursuant to paragraph 5 of the Securities).
(iii) The Registrar or co-registrar shall not be required to register
the transfer of or exchange of any Security for a period beginning (1) 15 days
before the mailing of a notice of an offer to repurchase or redeem Securities
and ending at the
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close of business on the day of such mailing or (2) 15 days before an interest
payment date and ending on such interest payment date.
(iv) Prior to the due presentation for registration of transfer of any
Security, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the person in whose name a Security is
registered as the absolute owner of such Security for the purpose of receiving
payment of principal of and interest on such Security and for all other purposes
whatsoever, whether or not such Security is overdue, and none of the Company,
the Trustee, the Paying Agent, the Registrar or any co-registrar shall be
affected by notice to the contrary.
(v) Any Definitive Security (including any Institutional Accredited
Investor Note) delivered in exchange for an interest in a Global Security
pursuant to Section 2.1(d) shall, except as otherwise provided by Section
2.6(c), bear the applicable legend regarding transfer restrictions applicable to
the Definitive Security set forth in Section 2.1(c).
(vi) All Securities issued upon any transfer or exchange pursuant to
the terms of this Indenture shall evidence the same debt and shall be entitled
to the same benefits under this Indenture as the Securities surrendered upon
such transfer or exchange.
(f) NO OBLIGATION OF THE TRUSTEE. (i) The Trustee shall have no
responsibility or obligation to any beneficial owner of a Global Security, a
member of, or a participant in, the Depositary or other Person with respect to
the accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest in the
Securities or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount or delivery of
any Securities (or other security or property) under or with respect to such
Securities. All notices and communications to be given to the Holders and all
payments to be made to Holders in respect of the Securities shall be given or
made only to or upon the order of the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security shall be exercised only through the
Depositary subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any
beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in
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any Security (including any transfers between or among Depositary participants,
members or beneficial owners in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by, the terms
of this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
(iii) Each beneficial owner of an interest in any Security agrees to
indemnify the Company and the Trustee against any liability that may result from
the transfer, exchange or assignment by such beneficial owner of such interest
in violation of any provision of this Indenture and/or applicable United States
federal or state securities law.
SECTION 2.7. FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS.
[Date]
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Services Department
Dear Sirs:
This certificate is delivered to request a transfer of $
principal amount of the 9 7/8% Series C Senior Subordinated Notes due 2006 (the
"Securities") of Safelite Glass Corp. (the "Company").
Upon transfer, the Securities would be registered in the name of the
new beneficial owner as follows:
Name: ___________________________________
Address: ________________________________
Taxpayer ID Number: _____________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")) purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Securities, and we are acquiring the Securities not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act.
We have such knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risk of our investment in the
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Securities and we invest in or purchase securities similar to the Securities in
the normal course of our business. We and any accounts for which we are acting
are each able to bear the economic risk of our or its investment.
2. We understand that the Securities have not been registered under
the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf of
any investor account for which we are purchasing Securities to offer, sell or
otherwise transfer such Securities prior to the date which is two years after
the later of the date of original issue and the last date on which the Company
or any affiliate of the Company was the owner of such Securities (or any
predecessor thereto) (the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act, to a person we reasonably
believe is a qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB and to whom notice is
given that the transfer is being made in reliance on Rule 144A, (d) pursuant to
offers and sales that occur outside the United States within the meaning of
Regulation S under the Securities Act, (e) to an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is purchasing for its own account or for the account of such
an institutional "accredited investor," in each case in a minimum principal
amount of Securities of $250,000 or (f) pursuant to any other available
exemption from the registration requirements of the Securities Act, subject in
each of the foregoing cases to any requirement of law that the disposition of
our property or the property of such investor account or accounts be at all
times within our or their control and in compliance with any applicable state
securities laws. The foregoing restrictions on resale will not apply subsequent
to the Resale Restriction Termination Date. If any resale or other transfer of
the Securities is proposed to be made pursuant to clause (e) above prior to the
Resale Restriction Termination Date, the transferor shall deliver a letter from
the transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" (within the meaning of Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) and that it is acquiring such Securities
for investment purposes and not for distribution in violation of the Securities
Act. Each purchaser acknowledges that the Company and the Trustee reserve the
right prior to any offer, sale or other transfer prior to the Resale Restriction
Termination Date of the Securities pursuant to clauses (d), (e) or (f) above to
require
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the delivery of an opinion of counsel, certifications and/or other information
satisfactory to the Company and the Trustee.
TRANSFEREE:_____________________
BY______________________________
Signature Medallion Guaranteed
SECTION 2.8. FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS PURSUANT TO REGULATION S.
[Date]
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Services Department
Re: Safelite Glass Corp.
9 7/8% SERIES C SENIOR SUBORDINATED NOTES DUE 2006 (THE
"SECURITIES")
Ladies and Gentlemen:
In connection with our proposed sale of $________ aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(a) the offer of the Securities was not made to a person in the United
States;
(b) either (i) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf reasonably
believed that the transferee was outside the United States or (ii) the
transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been pre-arranged with a buyer in the United
States;
(c) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period and the
provisions of Rule 903(c)(3) or Rule 904(c)(1) of
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Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1),
as the case may be.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:____________________________
----------------------------
Authorized Signature Signature Medallion Guaranteed
SECTION 2.9. REPLACEMENT SECURITIES. If a mutilated Security is
surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security. Every replacement Security is
an additional obligation of the Company.
SECTION 2.10. OUTSTANDING SECURITIES. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation and those described in this
Section as not outstanding. A Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.9, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Security is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable
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on that date with respect to the Securities (or portions thereof) to be redeemed
or maturing, as the case may be, and the Paying Agent is not prohibited from
paying such money to the Securityholders on that date pursuant to the terms of
this Indenture, then on and after that date such Securities (or portions
thereof) cease to be outstanding and interest on them ceases to accrue.
SECTION 2.11. TEMPORARY SECURITIES. Until Definitive Securities are
ready for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
Definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate Definitive Securities. After
the preparation of Definitive Securities, the temporary Securities shall be
exchangeable for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and deliver in exchange therefor, one or more
Definitive Securities representing an equal principal amount of Securities.
Until so exchanged, the Holder of temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as a holder of Definitive
Securities.
SECTION 2.12. CANCELLATION. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel and
destroy (subject to the record retention requirements of the Exchange Act) all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and deliver a certificate of such destruction to the Company unless
the Company directs the Trustee to deliver canceled Securities to the Company.
The Company may not issue new Securities to replace Securities it has redeemed,
paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST. If the Company defaults in a payment
of interest on the Securities, the Company shall pay defaulted interest (plus
interest on such defaulted interest to the extent lawful) in any lawful manner.
The Company may pay the defaulted interest to the persons who are
Securityholders on a subsequent special record date. The Company shall fix or
cause to be fixed (or upon the Company's failure to do so the Trustee shall fix)
any such special record date and payment date to the reasonable satisfaction of
the Trustee which specified record date shall not be less than 10 days prior to
the
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payment date for such defaulted interest and shall promptly mail or cause to be
mailed to each Securityholder a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid. The Company shall
notify the Trustee in writing of the amount of defaulted interest proposed to be
paid on each Security 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 so deposited to be held in
trust for the benefit of the Person entitled to such defaulted interest as
provided in this Section.
SECTION 2.14. CUSIP NUMBERS. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use) and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders, PROVIDED,
HOWEVER, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. NOTICES TO TRUSTEE. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the redemption date and the principal amount of Securities
to be redeemed.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. Such notice shall be accompanied by an Officers'
Certificate from the Company to the effect that such redemption will comply with
the conditions herein. If fewer than all the Securities are to be redeemed, the
record date relating to such redemption shall be selected by the Company and set
forth in the related notice given to the Trustee, which record date shall be not
less than 15 days after the date of such notice.
SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED. If fewer than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by a method that complies with applicable legal
and securities exchange requirements, if any, and that the Trustee considers
fair and appropriate and in accordance with methods generally
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used at the time of selection by fiduciaries in similar circumstances; PROVIDED,
HOWEVER, that if a partial redemption is made with the proceeds of an Equity
Offering, selection of the Securities or portion thereof for redemption shall be
made by the Trustee only on a pro rata basis, unless such method is otherwise
prohibited. The Trustee shall make the selection from outstanding Securities not
previously called for redemption. The Trustee may select for redemption portions
of the principal of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in amounts of
$1,000 or a whole multiple of $1,000. Provisions of this Indenture that apply to
the entirety of Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company promptly
of the Securities or portions of Securities to be redeemed.
SECTION 3.3. NOTICE OF REDEMPTION. At least 30 days but not more than
60 days prior to the date fixed for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail, postage prepaid, to each Holder
of Securities to be redeemed at the last address for such Holder then shown on
the Registrar's books.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) the subparagraph of the Securities pursuant to which such
redemption is being made;
(6) if fewer than all the outstanding Securities are to be redeemed,
the identification and principal amounts of the particular Securities to be
redeemed;
(7) that, unless the Company defaults in making such redemption
payment or the Paying Agent is prohibited from making such payment pursuant
to the terms of this Indenture, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the redemption date;
(8) the CUSIP number, if any, printed on the Securities being
redeemed; and
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(9) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is mailed, Securities called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price
stated in the notice, plus accrued interest to the redemption date; PROVIDED
that if the redemption date is after a regular record date and on or prior to
the interest payment date, the accrued interest shall be payable to the
Securityholder of the redeemed Securities registered on the relevant record
date. Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE. By at least 10:00 A.M. (New
York City time) on the date on which any principal of or interest on any
Security is due and payable, the Company shall deposit with the Paying Agent
(or, if the Company or a Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the redemption price of and accrued
interest on all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which are owned by the Company or a
Subsidiary and have been delivered by the Company or such Subsidiary to the
Trustee for cancellation.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such redemption price or the Paying Agent is
prohibited from making such payment, interest on the Securities to be redeemed
will cease to accrue on and after the applicable redemption date, whether or not
such Securities are presented for payment.
SECTION 3.6. SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Security equal in a
principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.7. SPECIAL REDEMPTION. Unless the Company shall have
received net cash proceeds of at least $50 million from the issuance of
Qualified Capital Stock in the Equity Investment on or prior to January 29,
1999, the Company shall redeem the Securities (the "SPECIAL REDEMPTION") on
February 3, 1999 (or such earlier date selected by the Company, the "SPECIAL
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REDEMPTION DATE") at a redemption price (the "SPECIAL REDEMPTION PRICE") equal
to 92.649% of the original principal amount of the Securities, plus accrued and
unpaid interest thereon from December 18, 1998 to the Special Redemption Date.
Pursuant to the Pledge and Security Agreement dated as of December 18,
1998 (as the same may be amended, modified or otherwise supplemented from time
to time, the "PLEDGE AGREEMENT") between the Company and State Street Bank and
Trust Company, in its capacities as Trustee and collateral agent (the
"COLLATERAL AGENT")and The Chase Manhattan Bank, as securities intermediary (the
"SECURITIES INTERMEDIARY"), in the form annexed hereto as Exhibit D, the Company
shall deposit $46.4 million of the proceeds of the Offering (as defined in the
Offering Memorandum)into a securities account (the "PLEDGED FUNDS") for the
benefit of the Holders. The Collateral Agent will exercise control over the
Pledged Funds as collateral for the Securities pursuant to the Pledge Agreement
until such funds are applied to complete the Special Redemption, or such earlier
time that the Equity Investment is completed. The Company shall deliver to the
Collateral Agent an irrevocable letter of credit issued under the Bank Credit
Agreement in favor of the Collateral Agent for the benefit of the holders of the
Notes in the amount of $5,266,030 (the "Letter of Credit") so that the Pledged
Funds originally deposited in the Account (as defined in the Pledge Agreement)
on the Issue Date, together with such Letter of Credit, will be sufficient to
complete the redemption of the Securities at the Special Redemption Price on the
Special Redemption Date.
If the Special Redemption occurs, the funds owing in respect of such
Special Redemption shall be paid to Holders on the Special Redemption Date. The
Pledge Agreement provides that if, on or prior to January 29, 1999, the Company
delivers to the Trustee a certificate substantially in the form set forth in the
Pledge Agreement stating that the Equity Investment has been completed, then
simultaneously with the completion of the Equity Investment, the Collateral
Agent will release to the Company (through instructions to the Securities
Intermediary) the Pledged Funds, and the Pledge Agreement will terminate. In
addition, the Letter of Credit issued in favor of the Collateral Agent for the
benefit of the holders of the Notes on the Issue Date as described above will be
canceled.
The Company shall apply $50 million of the proceeds of the Equity
Investment to repay $35 million of revolving credit loans under the Bank Credit
Agreement and $15 million to the repayment of term loans under the Bank Credit
Agreement.
Pending such release of funds to the Company or the occurrence of the
Special Redemption, such funds shall be controlled by the Collateral Agent
through instructions to the Securities Intermediary and may be invested, as
directed by the Company, in cash and/or Cash Equivalents (subject to the
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restrictions set forth in the Pledge Agreement). In connection with the Special
Redemption, notice of such Special Redemption will be mailed by overnight
delivery to each Holder at the address last drawn on the Registrar's books not
less than three Business Days prior to the Special Redemption Date. The notice
shall identify such notice of redemption as pursuant to the Special Redemption
and the CUSIP number, if any, on the Securities being redeemed. At the Company's
request, the Trustee shall give the notice of redemption in the Company's name
and at the Company's expense. In such event, the Company shall provide the
Trustee with the information required by this Section.
SECTION 3.8. ENTIRETY OF COLLATERAL ARRANGEMENT. The Pledge Agreement
is being executed and accepted by the Trustee subject to all terms and
conditions of its acceptance of the trust under this Indenture, as fully as if
the terms hereof were set forth at length in the Pledge Agreement.
ARTICLE IV
COVENANTS
SECTION 4.1. PAYMENT OF SECURITIES. The Company shall promptly pay the
principal of (and premium, if any) and interest on the Securities on the dates
and in the manner provided in the Securities and in this Indenture. Principal
(and premium, if any) and interest shall be considered paid on the date due if
on such date the Trustee or the Paying Agent holds in accordance with this
Indenture money sufficient to pay all principal (and premium, if any) and
interest then due and the Trustee or the Paying Agent, as the case may be, is
not prohibited from paying such money to the Securityholders on that date
pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this Indenture,
the Paying Agent may, to the extent it is required to do so by law, deduct or
withhold income or other similar taxes imposed by the United States of America
from principal or interest payments hereunder.
SECTION 4.2. LIMITATION ON LIENS. The Company will not, and will not
permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to
exist any Liens of any kind against or upon any of its property or assets, or
any proceeds therefrom, unless (i) in the case of Liens securing Indebtedness
that is expressly subordinate or junior in right of payment to the Securities,
the Securities are secured by a Lien on such property, assets or proceeds that
is senior in priority to such
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Liens and (ii) in all other cases, the Securities are equally and ratably
secured, except for (A) Liens existing as of the 1996 Issue Date and any
extensions, renewals or replacements thereof; (B) Liens securing Senior
Indebtedness and Guarantor Senior Indebtedness; (C) Liens securing the
Securities and the Guarantees; (D) Liens of the Company or a Wholly Owned
Restricted Subsidiary on assets of any Subsidiary of the Company; (E) Liens
securing Indebtedness which is incurred to refinance Indebtedness which has been
secured by a Lien permitted under this Indenture and which has been incurred in
accordance with the provisions of this Indenture; PROVIDED, HOWEVER, that such
Liens do not extend to or cover any property or assets of the Company or any of
its Restricted Subsidiaries not securing the Indebtedness so refinanced; and
(F) Permitted Liens.
SECTION 4.3. LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS. The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, acquire, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for payment of (collectively, "INCUR") any Indebtedness (other than
Permitted Indebtedness); PROVIDED, HOWEVER, that if no Default or Event of
Default shall have occurred and be continuing at the time or as a consequence of
the incurrence of any such Indebtedness, the Company or any Subsidiary Guarantor
may incur Indebtedness if on the date of the incurrence of such Indebtedness,
after giving effect to the incurrence thereof, the Consolidated Fixed Charge
Coverage Ratio of the Company is greater than 2.0 to 1.0.
SECTION 4.4. LIMITATION ON RESTRICTED PAYMENTS. (a) The Company shall
not, and shall not cause or permit any of its Restricted Subsidiaries to,
directly or indirectly, (a) declare or pay any dividend or make any distribution
(other than dividends or distributions payable in Qualified Capital Stock) on or
in respect of shares of Capital Stock of the Company to holders of such Capital
Stock, (b) purchase, redeem or otherwise acquire or retire for value any Capital
Stock of the Company or any warrants, rights or options to purchase or acquire
shares of any class of such Capital Stock, other than the exchange of such
Capital Stock for Qualified Capital Stock, or (c) make any Investment (other
than Permitted Investments) (each of the foregoing actions set forth in clauses
(a), (b) and (c) being referred to as a "RESTRICTED PAYMENT"), if at the time of
such Restricted Payment or immediately after giving effect thereto, (i) a
Default or an Event of Default shall have occurred and be continuing, (ii) the
Company is not able to incur at least $1.00 of additional Indebtedness (other
than Permitted Indebtedness) in compliance with Section 4.3 or (iii) the
aggregate amount of Restricted Payments made subsequent to the 1996 Issue Date
shall exceed the sum of: (w) 50% of the cumulative Consolidated Net Income (or
if cumulative Consolidated Net Income shall be a loss, minus 100% of such loss)
of the Company earned subsequent to the
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1996 Issue Date and on or prior to the date the Restricted Payment occurs (the
"REFERENCE DATE") (treating such period as a single accounting period); plus
(x) 100% of the aggregate net cash proceeds received by the Company from any
Person (other than a Subsidiary of the Company) from the issuance and sale
subsequent to the 1996 Issue Date and on or prior to the Reference Date of
Qualified Capital Stock of the Company (including Capital Stock issued upon the
conversion of convertible Indebtedness or in exchange for outstanding
Indebtedness); plus (y) without duplication of any amounts included in clause
(iii)(x) above, 100% of the aggregate net cash proceeds of any equity
contribution received by the Company from a holder of the Company's Capital
Stock (excluding any net cash proceeds from such equity contribution to the
extent used to redeem Securities in accordance with the optional redemption
provisions of the Securities); plus (z) to the extent that any Investment (other
than a Permitted Investment) that was made after the 1996 Issue Date is sold for
cash or otherwise liquidated or repaid for cash, the lesser of (A) the cash
received with respect to such sale, liquidation or repayment of such Investment
(less the cost of such sale, liquidation or repayment, if any) and (B) the
initial amount of such Investment.
(b) Notwithstanding clause (a) above, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any dividend
or the consummation of any irrevocable redemption within 60 days after the date
of declaration of such dividend or notice of such redemption if the dividend or
payment of the redemption price, as the case may be, would have been permitted
on the date of declaration or notice; (2) if no Event of Default shall have
occurred and be continuing as a consequence thereof, the acquisition of any
shares of Capital Stock of the Company, either (i) solely in exchange for shares
of Qualified Capital Stock of the Company, or (ii) through the application of
net proceeds of a substantially concurrent sale (other than to a Subsidiary of
the Company) of shares of Qualified Capital Stock of the Company; (3) payments
for the purpose of and in an amount equal to the amount required to permit the
Company to redeem or repurchase shares of its Capital Stock or options in
respect thereof, in each case in connection with the repurchase provisions under
employee stock option or stock purchase agreements or other agreements to
compensate management employees; PROVIDED that such redemptions or repurchases
pursuant to this clause (3) since the 1996 Issue Date shall not exceed
$2 million (which amount shall be increased by the amount of any cash proceeds
to the Company from (x) sales of its Capital Stock to management employees
subsequent to the 1996 Issue Date and (y) any "key-man" life insurance policies
which are used to make such redemptions or repurchases) in the aggregate;
(4) the payment of fees and compensation as permitted under clause (i) of
Section 4.7(b); (5) so long as no Default or Event of Default shall have
occurred and be continuing, payments not to exceed $100,000 in the aggregate
since the 1996 Issue
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Date, to enable the Company to make payments to holders of its Capital Stock in
lieu of issuance of fractional shares of its Capital Stock; (6) repurchases of
Capital Stock deemed to occur upon the exercise of stock options if such Capital
Stock represents a portion of the exercise price thereof; (7) payments made on
the 1996 Issue Date pursuant to the Recapitalization Agreement; and (8) payment
of the Distribution. In determining the aggregate amount of Restricted Payments
made subsequent to the 1996 Issue Date in accordance with clause (iii) of the
immediately preceding paragraph, (a) amounts expended (to the extent such
expenditure is in the form of cash or other property other than Qualified
Capital Stock) pursuant to clauses (1), (2)(ii) and (3) of this Section 4.4(b)
shall be included in such calculation, PROVIDED that such expenditures pursuant
to clause (3) shall not be included to the extent of cash proceeds received by
the Company from any "key-man" life insurance policies and (b) amounts expended
pursuant to clauses (2)(i), (4), (5), (6), (7) and (8) shall be excluded from
such calculation.
(c) The Company shall not permit the payment of dividends in respect
of the Non-Voting Preferred Stock unless the Company exercises its optional
right to redeem the Non-Voting Preferred Stock (the payment of such dividends to
occur at the time of redemption); PROVIDED that the payment of such dividends
will only be permitted if such payment is in compliance with clauses (a) and (b)
of this Section 4.4.
SECTION 4.5. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES. The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary to (a) pay dividends or make any other
distributions on or in respect of its Capital Stock; (b) make loans or advances
or to pay any Indebtedness or other obligation owed to the Company or any other
Restricted Subsidiary of the Company; or (c) transfer any of its property or
assets to the Company or any other Restricted Subsidiary of the Company, except
for such encumbrances or restrictions existing under or by reason of:
(1) applicable law; (2) this Indenture or the Existing Notes Indenture;
(3) non-assignment provisions of any contract or any lease entered into in the
ordinary course of business; (4) any instrument governing Acquired Indebtedness,
which encumbrance or restriction is not applicable to the Company or any
Restricted Subsidiary of the Company, or the properties or assets of any such
Person, other than the Person or the properties or assets of the Person so
acquired; (5) agreements existing on the 1996 Issue Date (including, without
limitation, the Bank Credit Agreement and the Recapitalization Agreement);
(6) restrictions on the transfer of assets subject to any Lien permitted under
this Indenture imposed by the holder of such Lien; (7) restrictions imposed by
any agreement to sell assets permitted under this Indenture to any Person
pending the closing of such sale; (8) any
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agreement or instrument governing Capital Stock of any Person that is acquired
after the 1996 Issue Date; (9) Indebtedness or other contractual requirements of
a Receivables Entity in connection with a Qualified Receivables Transaction;
PROVIDED that such restrictions apply only to such Receivables Entity; or
(10) an agreement effecting a refinancing, replacement or substitution of
Indebtedness issued, assumed or incurred pursuant to an agreement referred to in
clause (2), (4) or (5) above; PROVIDED, HOWEVER, that the provisions relating to
such encumbrance or restriction contained in any such refinancing, replacement
or substitution agreement are no less favorable to the Company or the Holders in
any material respect as determined by the Board of Directors of the Company than
the provisions relating to such encumbrance or restriction contained in
agreements referred to in such clause (2), (4) or (5).
SECTION 4.6. LIMITATION ON ASSET SALES. (a) The Company will not, and
will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) the Company or the applicable Restricted Subsidiary, as the case may
be, receives consideration at the time of such Asset Sale at least equal to the
fair market value of the assets sold or otherwise disposed of (as determined in
good faith by the Company's Board of Directors), (ii) at least 75% of the
consideration received by the Company or such Restricted Subsidiary, as the case
may be, from such Asset Sale shall be cash or Cash Equivalents and is received
at the time of such disposition; PROVIDED that the amount of (x) any liabilities
(as shown on the Company's or such Restricted Subsidiary's most recent balance
sheet or in the notes thereto) of the Company or such Restricted Subsidiary
(other than liabilities that are by their terms subordinated to the Securities
or such Restricted Subsidiary's Guarantee, if any) that are assumed by the
transferee of any such assets and (y) any notes or other obligations received by
the Company or any such Restricted Subsidiary from such transferee that are
immediately converted by the Company or any such Restricted Subsidiary into cash
or Cash Equivalents (to the extent of the cash or Cash Equivalents received)
shall be deemed to be cash for purposes of this provision; and (iii) upon the
consummation of an Asset Sale, the Company shall apply, or cause such Restricted
Subsidiary to apply, the Net Cash Proceeds relating to such Asset Sale within
365 days of receipt thereof either (A) to prepay any Senior Indebtedness or
Guarantor Senior Indebtedness and, in the case of any Senior Indebtedness under
any revolving credit facility, effect a permanent reduction in the availability
under such revolving credit facility, (B) to reinvest in Productive Assets, or
(C) a combination of prepayment and investment permitted by the foregoing
clauses (iii)(A) and (iii)(B). On the 366th day after an Asset Sale or such
earlier date, if any, as the Board of Directors of the Company or of such
Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the
immediately preceding sentence (each, a "NET
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PROCEEDS OFFER TRIGGER DATE"), such aggregate amount of Net Cash Proceeds which
have not been applied on or before such Net Proceeds Offer Trigger Date as
permitted in clauses (iii)(A), (iii)(B) and (iii)(C) of the immediately
preceding sentence (each a "NET PROCEEDS OFFER AMOUNT") shall be applied by the
Company or such Restricted Subsidiary to make an offer to purchase (the "NET
PROCEEDS OFFER") on a date (the "NET PROCEEDS OFFER PAYMENT DATE") not less than
30 nor more than 45 days following the applicable Net Proceeds Offer Trigger
Date, from all Holders on a pro rata basis that amount of Securities equal to
the Note Offer Amount at a price equal to 100% of the principal amount of the
Securities to be purchased, plus accrued and unpaid interest thereon, if any, to
the date of purchase; PROVIDED, HOWEVER, that if at any time any non-cash
consideration received by the Company or any Restricted Subsidiary of the
Company, as the case may be, in connection with any Asset Sale is converted into
or sold or otherwise disposed of for cash (other than interest received with
respect to any such non-cash consideration), then such conversion or disposition
shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds
thereof shall be applied in accordance with this Section 4.6(a). Any offer with
respect to Other Debt shall be made and consummated concurrently with any Net
Proceeds Offer.
"Other Debt" shall mean other Indebtedness of the Company that ranks
pari passu with the Securities and requires that an offer to purchase such Other
Debt be made upon consummation of an Asset Sale.
"Note Offer Amount" means (i) if an offer to purchase Other Debt is
not being made, the amount of the Net Proceeds Offer Amount and (ii) if an offer
to purchase Other Debt is being made, an amount equal to the product of (x) the
Net Proceeds Offer Amount and (y) a fraction the numerator of which is the
aggregate amount of Securities tendered pursuant to such offer to purchase and
the denominator of which is the aggregate amount of Securities and Other Debt
tendered pursuant to such offer to purchase.
Notwithstanding the foregoing, if a Net Proceeds Offer Amount is less
than $5 million, the application of the Net Cash Proceeds constituting such Net
Proceeds Offer Amount to a Net Proceeds Offer may be deferred until such time as
such Net Proceeds Offer Amount plus the aggregate amount of all Net Proceeds
Offer Amounts arising subsequent to the Net Proceeds Offer Trigger Date relating
to such initial Net Proceeds Offer Amount from all Asset Sales by the Company
and its Restricted Subsidiaries aggregates at least $5 million, at which time
the Company or such Restricted Subsidiary shall apply all Net Cash Proceeds
constituting all Net Proceeds Offer Amounts that have been so deferred to make a
Net Proceeds Offer (the first date the aggregate of all such deferred Net
Proceeds Offer Amounts is
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equal to $5 million or more shall be deemed to be a "NET PROCEEDS OFFER TRIGGER
DATE").
Notwithstanding the two immediately preceding paragraphs, the Company
and its Restricted Subsidiaries will be permitted to consummate an Asset Sale
without complying with such paragraphs to the extent (i) at least 75% of the
consideration for such Asset Sale constitutes Productive Assets and (ii) such
Asset Sale is for at least fair market value (as determined in good faith by the
Company's Board of Directors); PROVIDED that any consideration not constituting
Productive Assets received by the Company or any of its Restricted Subsidiaries
in connection with any Asset Sale permitted to be consummated under this
paragraph shall constitute Net Cash Proceeds and shall be subject to the
provisions of the two preceding paragraphs; PROVIDED, that at the time of
entering into such transaction or immediately after giving effect thereto, no
Default or Event of Default shall have occurred or be continuing or would occur
as a consequence thereof.
(b) Each Net Proceeds Offer will be mailed to the record Holders as
shown on the register of Holders within 15 days following the Net Proceeds Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth in this Indenture. Upon receiving notice of the Net Proceeds Offer,
Holders may elect to tender their Securities in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Securities in an amount exceeding the Note Offer Amount, Securities of tendering
Holders will be purchased on a pro rata basis (based on amounts tendered). A Net
Proceeds Offer shall remain open for a period of 20 business days or such longer
period as may be required by law. To the extent that the aggregate amount of
Securities tendered pursuant to a Net Proceeds Offer is less than the Note Offer
Amount, the Company may use any remaining Net Proceeds Offer Amount for general
corporate purposes. Upon completion of any such Net Proceeds Offer, the Net
Proceeds Offer Amount shall be reset at zero.
(c) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Net Proceeds Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.6, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.6 by virtue thereof.
SECTION 4.7. LIMITATION ON TRANSACTIONS WITH AFFILIATES. (a) The
Company will not, and will not permit any of its Restricted Subsidiaries to,
directly or indirectly, enter
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into or permit to exist any transaction or series of related transactions
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with, or for the benefit of, any of
its Affiliates (an "AFFILIATE TRANSACTION"), other than (x) Affiliate
Transactions permitted under paragraph (b) below and (y) Affiliate Transactions
on terms that are no less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis from
a Person that is not an Affiliate; PROVIDED, HOWEVER, that for a transaction or
series of related transactions with an aggregate value of $2 million or more, at
the Company's option (i) such determination shall be made in good faith by a
majority of the disinterested members of the Board of the Directors of the
Company or (ii) the Board of Directors of the Company or any such Restricted
Subsidiary party to such Affiliate Transaction shall have received a favorable
opinion from a nationally recognized investment banking firm that such Affiliate
Transaction is on terms not materially less favorable than those that might
reasonably have been obtained in a comparable transaction at such time on an
arm's-length basis from a Person that is not an Affiliate; PROVIDED, FURTHER,
that for a transaction or series of related transactions with an aggregate value
of $5 million or more, the Board of Directors of the Company shall have received
a favorable opinion from a nationally recognized investment banking firm that
such Affiliate Transaction is on terms not materially less favorable than those
that might reasonably have been obtained in a comparable transaction at such
time on an arm's-length basis from a Person that is not an Affiliate.
(b) The foregoing restrictions shall not apply to (i) reasonable fees
and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Subsidiary of the
Company as determined in good faith by the Company's Board of Directors or
senior management; (ii) transactions exclusively between or among the Company
and any of its Wholly Owned Restricted Subsidiaries or exclusively between or
among such Wholly Owned Restricted Subsidiaries, PROVIDED such transactions are
not otherwise prohibited by this Indenture; (iii) transactions effected as part
of a Qualified Receivables Transaction; (iv) any agreement as in effect as of
the 1996 Issue Date or any amendment thereto or any transaction contemplated
thereby (including pursuant to any amendment thereto) in any replacement
agreement thereto so long as any such amendment or replacement agreement is not
more disadvantageous to the Holders in any material respect than the original
agreement as in effect on the 1996 Issue Date; (v) Restricted Payments permitted
by this Indenture; and (vi) payments made by the Company to, and agreements
entered into by the Company with, Affiliates in connection with the Vistar
Merger.
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SECTION 4.8. CHANGE OF CONTROL. (a) Upon the occurrence of a Change of
Control Triggering Event, each Holder will have the right to require that the
Company purchase all or a portion of such Holder's Securities pursuant to the
offer described below (the "CHANGE OF CONTROL OFFER"), at a purchase price equal
to 101% of the principal amount thereof plus accrued interest to the date of
purchase. Prior to the mailing of the notice referred to below, but in any event
within 30 days following any Change of Control Triggering Event, the Company
covenants to (i) repay in full and terminate all commitments under the Bank
Indebtedness or offer to repay in full and terminate all commitments under all
Bank Indebtedness and to repay the Bank Indebtedness owed to each holder of Bank
Indebtedness which has accepted such offer or (ii) obtain the requisite consents
under the Bank Credit Agreement to permit the repurchase of the Securities as
provided below. The Company shall first comply with the covenant in the
immediately preceding sentence before it shall be required to repurchase
Securities pursuant to the provisions described below. The Company's failure to
comply with this Section 4.8 shall constitute an Event of Default under Section
6.1(3) and not under 6.1(2).
(b) Within 30 days following the date upon which the Change of Control
Triggering Event occurred, the Company must send, by first class mail, a notice
to each Holder, with a copy to the Trustee, which notice shall govern the terms
of the Change of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no earlier than 30 days nor later than 45 days from
the date such notice is mailed, other than as may be required by law (the
"CHANGE OF CONTROL PAYMENT DATE"). Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Security completed, to the Paying Agent at the address specified
in the notice prior to the close of business on the third business day prior to
the Change of Control Payment Date.
(c) The Company will comply with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer. To the extent
that the provisions of any securities laws or regulations conflict with this
Section 4.8, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.8 by virtue thereof.
SECTION 4.9. PROHIBITION ON INCURRENCE OF SENIOR SUBORDINATED DEBT.
Neither the Company nor any Subsidiary Guarantor will incur or suffer to exist
Indebtedness that is senior in right of payment to the Securities or such
Subsidiary
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Guarantor's Guarantee and subordinate in right of payment to any other
Indebtedness of the Company or such Subsidiary Guarantor, as the case may be.
SECTION 4.10. LIMITATION ON PREFERRED STOCK OF SUBSIDIARIES. The
Company will not permit any of its Restricted Subsidiaries to issue any
Preferred Stock (other than to the Company or to a Wholly Owned Restricted
Subsidiary of the Company) or permit any Person (other than the Company or a
Wholly Owned Restricted Subsidiary of the Company) to own any Preferred Stock of
any Restricted Subsidiary of the Company.
SECTION 4.11. LIMITATION ON FUTURE GUARANTEES. The Company will not
permit any of its Restricted Subsidiaries, directly or indirectly, to incur,
guarantee or secure through the granting of Liens the payment of the Bank
Indebtedness or any refunding or refinancing thereof, in each case unless such
Restricted Subsidiary, the Company and the Trustee execute and deliver a
supplemental indenture evidencing such Restricted Subsidiary's Guarantee, such
Guarantee to be a senior subordinated unsecured obligation of such Restricted
Subsidiary. Neither the Company nor any such Subsidiary Guarantor shall be
required to make a notation on the Securities or the Guarantees to reflect any
such subsequent Guarantee. Nothing in this covenant shall be construed to permit
any Restricted Subsidiary of the Company to incur Indebtedness otherwise
prohibited by Section 4.3. Thereafter, such Restricted Subsidiary shall be a
Subsidiary Guarantor for all purposes of this Indenture.
SECTION 4.12. CONDUCT OF BUSINESS. The Company and its Restricted
Subsidiaries will not engage in any businesses which are not the same, similar,
related or ancillary to the businesses in which the Company and its Restricted
Subsidiaries are engaged on the 1996 Issue Date.
SECTION 4.13. MAINTENANCE OF OFFICE OR AGENCY. The Company shall
maintain the office or agency required under Section 2.3. The Company shall give
prior written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 13.2.
SECTION 4.14. CORPORATE EXISTENCE. Except as otherwise permitted by
Article V, the Company shall do or cause to be done, at its own cost and
expense, all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate existence of each of its Subsidiaries in
accordance with the respective organizational documents of each such Subsidiary
and the material rights (charter and statutory) and franchises of the Company
and each such
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Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to
preserve, with respect to itself, any material right or franchise and, with
respect to any of its Subsidiaries, any such existence, material right or
franchise, if the Board of Directors of the Company shall determine in good
faith that the preservation thereof is no longer desirable in the conduct of the
business of the Company and the Subsidiaries, taken as a whole.
SECTION 4.15. PAYMENT OF TAXES AND OTHER CLAIMS. The Company shall pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to taxes)
levied or imposed upon it or any of its Subsidiaries or properties of it or any
of its Subsidiaries and (ii) all lawful claims for labor, materials and supplies
that, if unpaid, might by law become a Lien upon the property of it or any of
its Subsidiaries; PROVIDED, HOWEVER, that the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings properly instituted and diligently
conducted for which adequate reserves, to the extent required under GAAP, have
been taken.
SECTION 4.16. MAINTENANCE OF PROPERTIES AND INSURANCE. (a) The Company
shall, and shall cause each of its Subsidiaries to, maintain its material
properties in good working order and condition (subject to ordinary wear and
tear) and make all necessary repairs, renewals, replacements, additions,
betterments and improvements thereto and actively conduct and carry on its
business; PROVIDED, HOWEVER, that nothing in this Section 4.16 shall prevent the
Company or any of its Subsidiaries from discontinuing the operation and
maintenance of any of its properties, if such discontinuance is, in the good
faith judgment of the Board of Directors of the Company or the Subsidiary, as
the case may be, desirable in the conduct of their respective businesses and is
not disadvantageous in any material respect to the Holders.
(b) The Company shall provide or cause to be provided, for itself and
each of its Subsidiaries, insurance (including appropriate self-insurance)
against loss or damage of the kinds that, in the good faith judgment of the
Board of Directors of the Company, are adequate and appropriate for the conduct
of the business of the Company and such Subsidiaries in a prudent manner, with
reputable insurers or with the government of the United States of America or any
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 Board
of Directors of the Company, for companies similarly situated in the industry.
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SECTION 4.17. COMPLIANCE WITH LAWS. The Company shall comply, and
shall cause each of its Subsidiaries to comply, with all applicable statutes,
rules, regulations, orders and restrictions of the United States of America, all
states and municipalities thereof, and of any governmental department,
commission, board, regulatory authority, bureau, agency and instrumentality of
the foregoing, in respect of the conduct of their respective businesses and the
ownership of their respective properties, except for such noncompliances as are
not in the aggregate reasonably likely to have a material adverse effect on the
financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION 4.18. ADDITIONAL INFORMATION. The Company will deliver to the
Trustee within 15 days after the filing of the same with the Commission, copies
of the quarterly and annual reports and of the information, documents and other
reports, if any, which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act. Notwithstanding that the
Company may not be subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will file with the Commission, to the extent
permitted, and provide the Trustee and Holders with such annual reports and such
information, documents and other reports specified in Sections 13 and 15(d) of
the Exchange Act. The Company and the Subsidiary Guarantors will also comply
with the other provisions of TIA ss. 314(a).
SECTION 4.19. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE V
SUCCESSOR COMPANY
SECTION 5.1. WHEN COMPANY MAY MERGE OR TRANSFER ASSETS. (a) The
Company will not, in a single transaction or a series of related transactions,
consolidate with or merge with or into, or sell, assign, transfer, lease, convey
or otherwise dispose of all or substantially all of its assets to, another
Person or Persons unless:
(i) either (A) the Company shall be the survivor of such merger
or consolidation or (B) the surviving Person is a corporation existing
under the laws of the United States, any state thereof or the District
of Columbia and such surviving Person shall expressly assume all the
obligations of the Company under the Securities and this Indenture;
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(ii) immediately after giving effect to such transaction (on a
pro forma basis, including any Indebtedness incurred or anticipated to
be incurred in connection with such transaction and including
adjustments that are (x) directly attributable to such transaction and
(y) factually supportable), the Company or the surviving Person is
able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.3;
(iii) immediately before and immediately after giving effect to
such transaction (including any Indebtedness incurred or anticipated
to be incurred in connection with such transaction), no Default or
Event of Default shall have occurred and be continuing;
(iv) each Subsidiary Guarantor, unless it is the other party to
such transaction, shall have by execution of a supplemental indenture
confirmed that after consummation of such transaction its Guarantee
shall apply, as such Guarantee applied on the date it was granted
under this Indenture to the obligations of the Company under this
Indenture and the Securities, to the obligations of the Company or
such Person, as the case may be, under this Indenture and the
Securities;
(v) the Company has delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such
consolidation, merger or transfer complies with this Indenture, that
the surviving Person agrees to be bound thereby, and that all
conditions precedent in this Indenture relating to such transaction
have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties and assets of one or more Subsidiaries of
the Company, the Capital Stock of which constitutes all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
Notwithstanding the foregoing clauses (ii) and (iii) above, (a) any Restricted
Subsidiary of the Company may consolidate with, merge into or transfer all or
part of its properties and assets to the Company and (b) the Company may merge
with an Affiliate incorporated solely for the purpose of reincorporating the
Company in another jurisdiction.
(b) Upon any consolidation, combination or merger or any transfer of
all or substantially all of the assets of the Company in accordance with the
foregoing, the surviving entity shall succeed to, and be substituted for, and
may exercise every right and power of, the Company under this Indenture and the
Securities with the same effect as if such surviving entity had
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been named as such; PROVIDED that solely for purposes of computing amounts
described in clause (iii) of Section 4.4(a), any such surviving entity to the
Company shall only be deemed to have succeeded to and be substituted for the
Company with respect to periods subsequent to the effective time of such merger,
consolidation, combination or transfer of assets.
(c) Each Subsidiary Guarantor (other than any Subsidiary Guarantor
whose Guarantee is to be released in accordance with the terms of its Guarantee
and this Indenture in connection with any transaction complying with the
provisions of Section 4.6 or as otherwise provided in this Indenture) will not,
and the Company will not cause or permit any Subsidiary Guarantor to,
consolidate with or merge with or into any Person other than the Company or any
other Subsidiary Guarantor unless: (i) the entity formed by or surviving any
such consolidation or merger (if other than the Subsidiary Guarantor) or to
which such sale, lease, conveyance or other disposition shall have been made is
a corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia; (ii) such entity assumes by
supplemental indenture all of the obligations of the Subsidiary Guarantor on the
Guarantee; (iii) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing; and (iv) immediately
after giving effect to such transaction and the use of any net proceeds
therefrom, on a pro forma basis, including adjustments that are (A) directly
attributable to such transaction and (B) factually supportable, the Company
could satisfy the provisions of Section 5.1(a)(ii).
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(1) the Company defaults in any payment of interest on any
Security when the same becomes due and payable, whether or not such
payment shall be prohibited by Article X, and such default continues
for a period of 30 days;
(2) the Company defaults in the payment of the principal of any
Security when the same becomes due and payable at its Stated Maturity,
upon optional redemption or failure to make the Special Redemption
required by Section 3.7, upon required repurchase pursuant to a Change
of Control Offer or a Net Proceeds Offer, upon declaration or
otherwise, whether or not such payment shall be prohibited by Article
X;
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(3) the Company defaults in the observance or performance of any
other covenant or agreement contained in this Indenture which default
continues for a period of 30 days after the Company receives written
notice specifying the default (and demanding that such default be
remedied) from the Trustee or the Holders of at least 25% of the
outstanding principal amount of the Securities;
(4) the Company fails to pay at final maturity (giving effect to
any applicable grace periods and any extensions thereof) the principal
amount of any Indebtedness of the Company or any Restricted Subsidiary
(other than a Receivables Entity) of the Company, or the acceleration
of the final stated maturity of any such Indebtedness if the aggregate
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated, aggregates
$10 million or more at any time;
(5) one or more judgments in an aggregate amount in excess of $10
million shall have been rendered against the Company or any of its
Significant Subsidiaries and such judgments remain undischarged,
unpaid or unstayed for a period of 60 days after such judgment or
judgments become final and non-appealable, and in the event such
judgment is covered by insurance, an enforcement proceeding has been
commenced by any creditor upon such judgment which is not promptly
stayed;
(6) the Company or 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 judgment, decree or order for
relief against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it;
(F) takes any corporate action to authorize or effect any of
the foregoing;
or takes any comparable action under any foreign laws relating to
insolvency;
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(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company or
any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the order,
decree or relief remains unstayed and in effect for 60 days; or
(8) any of the Guarantees of the Subsidiary Guarantors that are
also Significant Subsidiaries of the Company ceases to be in full
force and effect or any of such Guarantees is declared to be null and
void and unenforceable or any of such Guarantees is found to be
invalid or any of such Subsidiary Guarantors denies its liability
under its Guarantee (other than by reason of release of such
Subsidiary Guarantor in accordance with the terms of this Indenture).
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body.
The term "Bankruptcy Law" means Title 11, UNITED STATES CODE, or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any Event of Default under clauses (3), (5) or (8) of this Section 6.1.
SECTION 6.2. ACCELERATION. (a) If an Event of Default (other than an
Event of Default specified in 6.1(6) or (7)) occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of outstanding
Securities may declare the principal of and accrued interest on all the
Securities to be due and payable by notice in writing to the Company and the
Trustee specifying the respective Event of
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Default and that it is a "notice of acceleration", and the same shall become
immediately due and payable.
(b) If an Event of Default specified in Sections 6.1(6) and (7) occurs
and is continuing, then the principal of and accrued interest on all the
Securities shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any holder of
Securities.
(c) At any time after a declaration of acceleration with respect to
the Securities as described in Section 6.2(a) or (b) above, the Holders of a
majority in principal amount of the Securities may rescind and cancel such
declaration and its consequences (i) if the rescission would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of principal or interest that has become due solely
because of the acceleration, (iii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, (iv) if the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances and
(v) in the event of the cure or waiver of an Event of Default of the type
described in Section 6.1(6), (7) or (8), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Event of Default has
been cured or waived.
SECTION 6.3. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4. WAIVER OF PAST DEFAULTS. The holders of a majority in
principal amount of the Securities may waive any existing Default or Event of
Default under this Indenture, and its consequences, except (i) a default in the
payment of the principal of or interest on any Securities or (ii) a Default or
Event of Default in respect of a provision that under Section 9.2 cannot be
amended without the consent of each Securityholder affected. When a Default or
Event of Default is waived, it is deemed cured, but no such waiver shall extend
to any subsequent
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or other Default or Event of Default or impair any consequent right.
SECTION 6.5. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.1, that the Trustee determines is unduly prejudicial to the
rights of other Securityholders or would involve the Trustee in personal
liability; PROVIDED, HOWEVER, that the Trustee may take any other action deemed
proper by the Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
SECTION 6.6. LIMITATION ON SUITS. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in outstanding principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 45 days after
receipt of the request and the offer of security or indemnity; and
(5) the Holders of a majority in principal amount of the Securities do
not give the Trustee a direction inconsistent with the request during such
45-day period.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 6.7. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and interest on the Securities held by such Holder, on or after the
respective due dates expressed in the Securities, or to bring suit for the
enforcement of any such payment on or after such respective
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dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
7.7.
SECTION 6.9. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to the Company, its Subsidiaries or
their respective creditors or properties and, unless prohibited by law or
applicable regulations, may vote on behalf of the Holders in any election of a
trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.7.
SECTION 6.10. PRIORITIES. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness and Guarantor Senior
Indebtedness to the extent required by
Article X;
THIRD: to Securityholders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
FOURTH: to the Company or any other obligors on the Securities as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to
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each Securityholder and the Company a notice that states the record date, the
payment date and amount to be paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in outstanding principal amount of the Securities.
ARTICLE VII
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent Person would exercise or use under the circumstances
in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
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(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 7.2. RIGHTS OF TRUSTEE. (a) The Trustee may rely on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter stated
in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; PROVIDED, HOWEVER,
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that the Trustee's conduct does not constitute wilful misconduct or negligence.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, co-registrar
or co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.4. TRUSTEE'S DISCLAIMER. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS. If a Default or Event of Default
occurs and is continuing and if a Trust Officer has actual knowledge thereof,
the Trustee shall mail to each Securityholder notice of the Default or Event of
Default within 30 days after it occurs. Except in the case of a Default or Event
of Default in payment of principal of or interest on any Security (including
payments pursuant to the optional redemption or required repurchase provisions
of such Security, if any), the Trustee may withhold the notice if and so long as
its board of directors, the Executive Committee of its board of directors or a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Securityholders.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS. As promptly as practicable
after each May 15 beginning with the May 15 following the date of this
Indenture, and in any event prior to July 15 in each year, the Trustee shall
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b). The
Trustee shall also transmit by mail all reports required by TIA ss. 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC if required by law
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and each stock exchange (if any) on which the Securities are listed. The Company
agrees to notify promptly the Trustee whenever the Securities become listed on
any stock exchange and of any delisting thereof.
SECTION 7.7. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices to
Securityholders and reasonable costs of counsel retained by the Trustee in
connection with the delivery of an Opinion of Counsel or otherwise, in addition
to the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify the Trustee
against any and all loss, liability or expense (including reasonable attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties hereunder, including the costs and expenses of
enforcing this Indenture (including this Section 7.7) and of defending itself
against any claims (whether asserted by any Securityholder, the Company or
otherwise). 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 may have separate counsel and the Company shall pay the
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own wilful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest on particular Securities. The Trustee's right to
receive payment of any amounts due under this Section 7.7 shall not be
subordinate to any other liability or indebtedness of the Company.
The Company's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.1(6) or (7) with respect to
the Company, the expenses are intended to constitute expenses of administration
under any Bankruptcy Law.
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SECTION 7.8. REPLACEMENT OF TRUSTEE. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the Holders
of a majority in principal amount of the Securities and such Holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting,
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surviving or transferee corporation without any further act shall
be the successor Trustee.
In case at the time such successor or successors by merger,
conversion, consolidation or transfer to the Trustee shall succeed to the trusts
created by this Indenture, any of the Securities shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA ss. 310(a). The Trustee shall have a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); PROVIDED, HOWEVER, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.1. DISCHARGE OF LIABILITY ON SECURITIES. (a) The Company may
terminate its obligations under the Securities and this Indenture, except those
obligations referred to in Section 8.1(b), if all Securities previously
authenticated and delivered (other than destroyed, lost or stolen Securities
which have been replaced or paid or Securities for whose payment money has
theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 8.5) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder, or if:
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(i) either (A) pursuant to Article III, the Company shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of
the redemption of all of the Securities under arrangements satisfactory to
the Trustee for the giving of such notice or (B) all Securities have
otherwise become due and payable hereunder;
(ii) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit
of the Holders for that purpose, money in such amount as is sufficient
without consideration of reinvestment of such money, to pay principal of,
premium on, if any, and interest on the outstanding Securities to maturity
or redemption, as the case may be; PROVIDED that the Trustee shall have
been irrevocably instructed to apply such money to the payment of said
principal, premium, if any, and interest with respect to the Securities
and, PROVIDED, FURTHER, that from and after the time of deposit, the money
deposited shall not be subject to the rights of holders of Senior
Indebtedness pursuant to the provisions of Article X;
(iii) no Default or Event of Default with respect to this Indenture or
the Securities 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 is a party or by which it is bound;
(iv) the Company shall have paid all other sums payable by it
hereunder; and
(v) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for the termination of the Company's obligations under
the Securities and this Indenture have been satisfied. Such Opinion of
Counsel shall also state that such satisfaction and discharge does not
result in a default under the Bank Credit Agreement (if then in effect) or
any other agreement or instrument then known to such counsel that binds or
affects the Company.
(b) Notwithstanding the foregoing paragraph, the Company's obligations
in Sections 2.2, 2.5, 2.6, 2.9, 2.10, 4.1, 4.13, 4.14, 4.15, 4.17, 7.7, 8.4,
8.5, and 8.6 shall survive until the Securities are no longer outstanding
pursuant to the last paragraph of Section 2.10. After the Securities are no
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longer outstanding, the Company's obligations in Sections 7.7, 8.4, 8.5, and 8.6
shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Securities and this Indenture except for those surviving obligations
specified above.
SECTION 8.2. LEGAL DEFEASANCE AND COVENANT DEFEASANCE. (a) The Company
may, at its option by Board Resolution of the Board of Directors of the Company,
at any time, elect to have either paragraph (b) or (c) below be applied to all
outstanding Securities upon compliance with the conditions set forth in Section
8.3.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company and the Subsidiary
Guarantors, if any, shall, subject to the satisfaction of the conditions set
forth in Section 8.3, be deemed to have been discharged from its obligations
with respect to all outstanding Securities on the date the conditions set forth
below are satisfied (hereinafter, "LEGAL DEFEASANCE"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.4
hereof and the other Sections of this Indenture referred to in (i) through (iv)
below, and to have satisfied all its other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), and the following
provisions shall survive until otherwise terminated or discharged hereunder: (i)
the rights of Holders of outstanding Securities to receive solely from the trust
fund described in Sections 8.3 and 8.4 hereof, and as more fully set forth in
such Sections, payments in respect of the principal of (and premium, if any, on)
and interest on such Securities when such payments are due, (ii) the Company's
obligations with respect to such Securities under Article II and Section 4.13
hereof, (iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith and (iv) this
Article VIII. The Holders of the Securities and any amounts deposited under
Section 8.3 hereof shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness
under Article X or otherwise. Subject to compliance with this Article VIII, the
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company shall, subject to the
satisfaction of the conditions set
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forth in Section 8.3 hereof, be released from its obligations under the
covenants contained in Sections 4.2 through 4.12 and Article V hereof with
respect to the outstanding Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "COVENANT DEFEASANCE"), and the
Securities shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Securities shall not be deemed outstanding for accounting
purposes) and Holders of the Securities and any amounts deposited under Sections
8.3 and 8.4 hereof shall cease to be subject to any obligations to, or the
rights of, any holder of Senior Indebtedness or Guarantor Senior Indebtedness
under Article X or otherwise. For this purpose, such Covenant Defeasance means
that, with respect to the outstanding Securities, the Company 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 an Event of Default
under Section 6.1(3) hereof, but, except as specified above, the remainder of
this Indenture and such Securities shall be unaffected thereby.
SECTION 8.3. CONDITIONS TO DEFEASANCE. The Company may exercise its
Legal Defeasance option or its Covenant Defeasance option only if:
(1) the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the holders of the Securities cash in U.S. dollars,
non-callable U.S. Government Obligations, or a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of, premium, if any,
and interest on the Securities on the stated date for payment thereof or on
the applicable redemption date, as the case may be; PROVIDED that the
Trustee shall have received an irrevocable written order from the Company
instructing the Trustee to apply such cash in U.S. dollars or the proceeds
of such U.S. Government Obligations to said payments with respect to the
Securities;
(2) in the case of a 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 (i) the Company has
received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of this Indenture there has
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been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Securityholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had
not occurred;
(3) in the case of a 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 Securityholders
will not recognize income, gain or loss for Federal income tax purposes as
a result of such Covenant Defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default or event which with notice or lapse
of time or both would become a Default or an Event of Default with respect
to the Securities shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default with respect to this
Indenture resulting from the incurrence of Indebtedness, all or a portion
of which will be used to defease the Securities concurrently with such
incurrence) or insofar as Sections 6.1(6) and 6.1(7) hereof are concerned,
at any time in the period ending on the 91st day after the date of such
deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound;
(6) 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 over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(7) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities and this Indenture as
contemplated by this Article VIII have been complied with;
(8) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds
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will not be subject to any rights of holders of Indebtedness of the Company
other than the Securities and (B) assuming no intervening bankruptcy of the
Company between the date of deposit and the 91st day following the deposit
and that no Holder is an insider of the Company, 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
(9) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article III.
SECTION 8.4. APPLICATION OF TRUST MONEY. The Trustee or Paying Agent
shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited
with it pursuant to this Article VIII, and shall apply the deposited U.S. Legal
Tender and the money from U.S. Government Obligations in accordance with this
Indenture to the payment of principal of, premium, if any, and interest on the
Securities. The Trustee shall be under no obligation to invest said U.S. Legal
Tender or U.S. Government Obligations except as it may agree with the Company.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender or U.S.
Government Obligations deposited pursuant to Section 8.3 hereof or the
principal, premium, if any, and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account of the Holders
of the outstanding Securities.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any U.S. Legal Tender or U.S. Government Obligations held by it as
provided in Section 8.3 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof that would
then be required to be deposited to effect an equivalent Legal Defeasance or
Covenant Defeasance.
SECTION 8.5. REPAYMENT TO COMPANY OR THE SUBSIDIARY GUARANTORS.
Subject to Article VIII, the Trustee and the Paying Agent shall promptly pay to
the Company, or if deposited with the Trustee by any Subsidiary Guarantor, to
such Subsidiary Guarantor, upon request any excess U.S. Legal Tender or U.S.
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Government Obligations held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company, or if deposited with the Trustee by any Subsidiary
Guarantor, to such Subsidiary Guarantor, upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years;
PROVIDED that the Trustee or such Paying Agent, before being required to make
any payment, may at the expense of the Company cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Company or a Subsidiary Guarantor. After payment to the Company
or a Subsidiary Guarantor, as the case may be, Holders entitled to such money
must look to the Company for payment as general creditors unless an applicable
law designates another Person.
SECTION 8.6. REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with
Article VIII by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities (and each Subsidiary Guarantor's obligations under
a Guarantee) shall be revived and reinstated as though no deposit had occurred
pursuant to Article VIII until such time as the Trustee or Paying Agent is
permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in
accordance with Article VIII; PROVIDED that if the Company or any Subsidiary
Guarantor, as the case may be, has made any payment of interest on or principal
of any Securities because of the reinstatement of its obligations, the Company
or any Subsidiary Guarantor, as the case may be, shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the U.S.
Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.1. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee
may amend this Indenture or the Securities without notice to or consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency; PROVIDED
that such amendment does not in the opinion of the Trustee, adversely
affect the rights of any Holder in any material respect;
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(2) to comply with Article V;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities; PROVIDED, HOWEVER, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article X that would limit or terminate the
benefits available to any holder of Senior Indebtedness or Guarantor Senior
Indebtedness (or Representatives therefor) under Article X;
(5) to add Guarantees with respect to the Securities or to secure the
Securities;
(6) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company;
(7) to comply with any requirements of the SEC in connection with
qualifying this Indenture under the TIA;
(8) to make any change that does not adversely affect the rights of
any Securityholder; or
(9) to provide for the issuance of the Exchange Notes, which will have
terms substantially identical in all material respects to the Initial Notes
(except that the transfer restrictions contained in the Initial Notes and
provisions relating to an increase in interest rates in the event the
Securities are not registered under the Securities Act will be modified or
eliminated, as appropriate), and which will be treated, together with any
outstanding Initial Notes, as a single issue of securities.
An amendment under this Section may not make any change that adversely
affects the rights under Article X of any holder of Senior Indebtedness or
Guarantor Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness or Guarantor Senior Indebtedness (or any group or representative
thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.2. WITH CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the Securities without
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notice to any Securityholder but with the written consent of the Holders of at
least a majority in principal amount of the Securities. However, without the
consent of each Securityholder affected, an amendment may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including defaulted interest, on any
Security;
(3) reduce the principal of or change or have the effect of changing
the Stated Maturity of any Security, or change the date on which any
Securities may be subject to redemption or repurchase, or reduce the
redemption or repurchase price therefor;
(4) make any Security payable in money other than that stated in the
Security;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of, premium, if any,
and interest on such Security on or after the due date thereof or to bring
suit to enforce such payment, or permitting holders of a majority in
principal amount of the Securities to waive Defaults or Events of Default
(other than Defaults or Events of Default with respect to the payment of
principal of, premium, if any, or interest on the Securities);
(6) amend, change or modify in any material respect the obligation of
the Company to make and consummate a Change of Control Offer in the event
of a Change of Control Triggering Event or make and consummate a Net
Proceeds Offer with respect to any Asset Sale that has been consummated or
modify any of the provisions or definitions with respect thereto;
(7) modify Article X or the definitions used in Article X of this
Indenture to adversely affect the Holders in any material respect; or
(8) release any Subsidiary Guarantor that is a Significant Subsidiary
of the Company from any of its obligations under its Guarantee or this
Indenture otherwise than in accordance with the terms of this Indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
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An amendment under this Section may not make any change that adversely
affects the rights under Article X of any holder of Senior Indebtedness or
Guarantor Senior Indebtedness then outstanding unless the holders of such Senior
Indebtedness or Guarantor Senior Indebtedness (or any group or representative
thereof authorized to give a consent) consent to such change.
After an amendment under this Section becomes effective, the Company
shall mail to Securityholders a notice briefly describing such amendment. The
failure to give such notice to all Securityholders, or any defect therein, shall
not impair or affect the validity of an amendment under this Section.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Securities shall comply with the TIA as then in effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A consent
to an amendment or a waiver by a Holder of a Security shall bind the Holder and
every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent or waiver is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent or waiver as to such Holder's Security
or portion of the Security if the Trustee receives the notice of revocation
before the date the amendment or waiver becomes effective. After an amendment or
waiver becomes effective, it shall bind every Securityholder, unless it makes a
change described in any of clauses (1) through (8) of Section 9.2, in which
case, the amendment or waiver shall bind only each Securityholder who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder; PROVIDED that
any such waiver shall not impair or affect the right of any Holder to receive
payment of principal of, premium, if any, and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates without
the consent of such Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall become valid or effective more than 120
days after such record date.
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SECTION 9.5. NOTATION ON OR EXCHANGE OF SECURITIES. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment authorized pursuant to this Article IX if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
ARTICLE X
SUBORDINATION
SECTION 10.1. AGREEMENT TO SUBORDINATE. The Company agrees, and each
Securityholder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article X, to the prior payment of all Senior
Indebtedness and that the subordination is for the benefit of and enforceable by
the holders of Senior Indebtedness. The Securities shall in all respects rank
PARI PASSU with all other Senior Subordinated Indebtedness of the Company and
only Indebtedness of the Company which is Senior Indebtedness will rank senior
to the Securities in accordance with the provisions set forth herein. All
provisions of this Article X shall be subject to Section 10.12.
SECTION 10.2. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment
or distribution of the assets or securities of the Company to creditors upon a
total or partial liquidation or dissolution or reorganization or similar
proceeding of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its properties, or
in an assignment for the benefit of creditors or any marshaling of the assets
and liabilities of the Company:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash or Cash Equivalents of all Senior Indebtedness
before Securityholders shall be entitled to receive any payment of
principal of, premium, if
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any, or interest on or other amounts with respect to the Securities; and
(2) until the Senior Indebtedness is paid in full in cash or Cash
Equivalents, any payment or distribution to which Securityholders would be
entitled but for this Article X shall be made to holders of Senior
Indebtedness as their interests may appear.
SECTION 10.3. DEFAULT ON SENIOR INDEBTEDNESS. Neither the Company nor
any Subsidiary Guarantor may pay the principal of, premium (if any) or interest
on or other amounts with respect to the Securities or make any deposit pursuant
to Article VIII or repurchase, redeem or otherwise retire any Securities
(collectively, "PAY THE SECURITIES") if (i) any Senior Indebtedness is not paid
when due in cash or Cash Equivalents or (ii) any other default on Senior
Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated
in accordance with its terms unless, in either case, (x) the default has been
cured or waived and any such acceleration has been rescinded or (y) such Senior
Indebtedness has been paid in full in cash or Cash Equivalents; PROVIDED,
HOWEVER, that the Company may pay the Securities without regard to the foregoing
if the Company and the Trustee receive written notice approving such payment
from the Representative of the Senior Indebtedness with respect to which either
of the events set forth in clause (i) or (ii) of this sentence has occurred and
is continuing. During the continuance of any default (other than a default
described in clause (i) or (ii) of the preceding sentence) with respect to any
Designated Senior Indebtedness pursuant to which the maturity thereof may be
accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods, the Company may not pay the Securities for a period (a "PAYMENT
BLOCKAGE PERIOD") commencing upon the receipt by the Trustee (with a copy to the
Company) of written notice (a "BLOCKAGE NOTICE") of such default from the
Representative of the holders of such Designated Senior Indebtedness specifying
an election to effect a Payment Blockage Period and ending 179 days thereafter
(or earlier if such Payment Blockage Period is terminated (i) by written notice
to the Trustee and the Company from the Person or Persons who gave such Blockage
Notice, (ii) by repayment in full in cash or Cash Equivalents of such Designated
Senior Indebtedness or (iii) because the default giving rise to such Blockage
Notice is no longer continuing). Notwithstanding the provisions of the
immediately preceding sentence (unless the events described in clause (i) or
(ii) of the first sentence of this Section 10.3 shall have occurred and be
continuing), the Company may resume payments on the Securities after such
Payment Blockage Period, including any missed payments. Not more than one
Blockage Notice may be given in any consecutive 360-day period, irrespective of
the number of defaults with respect to Designated Senior Indebtedness during
such period; PROVIDED, HOWEVER, that if any
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Blockage Notice within such 360-day period is given by or on behalf of any
holders of Designated Senior Indebtedness other than the Bank Indebtedness, a
Representative of holders of Bank Indebtedness may give another Blockage Notice
within such period; PROVIDED, FURTHER, that in no event may the total number of
days during which any Payment Blockage Period or Periods is in effect exceed 179
days in the aggregate during any 360 consecutive day period.
SECTION 10.4. ACCELERATION OF PAYMENT OF SECURITIES. If payment of the
Securities is accelerated because of an Event of Default, the Company shall
promptly notify the holders of the Designated Senior Indebtedness (or their
Representatives) of the acceleration and provide copies of such notices to the
Trustee.
If any Designated Senior Indebtedness is outstanding at the time of
such acceleration, the Company may not pay the Securities until five Business
Days after the holder or Representative of such Designated Senior Indebtedness
receives notice of such acceleration and, thereafter, may pay the Securities
only if this Article X otherwise permits payments at that time.
SECTION 10.5. WHEN DISTRIBUTION MUST BE PAID OVER. If a payment or
distribution is made to Securityholders that because of this Article X should
not have been made to them, the Securityholders who receive the distribution
shall hold it in trust for holders of Senior Indebtedness and promptly pay it
over to them as their respective interests may appear.
SECTION 10.6. SUBROGATION. After all Senior Indebtedness is paid in
full in cash and until the Securities are paid in full, Securityholders shall be
subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article X to holders of Senior Indebtedness which otherwise would have been made
to Securityholders is not, as between the Company and Securityholders, a payment
by the Company of Senior Indebtedness.
SECTION 10.7. RELATIVE RIGHTS. This Article X defines the relative
rights of Securityholders and holders of Senior Indebtedness. Nothing in this
Indenture shall:
(1) impair, as between the Company and Securityholders, the obligation
of the Company, which is absolute and unconditional, to pay principal of
and interest on the Securities in accordance with their terms; or
(2) prevent the Trustee or any Securityholder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders of Senior
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Indebtedness to receive distributions otherwise payable to
Securityholders.
SECTION 10.8. SUBORDINATION MAY NOT BE IMPAIRED BY COMPANY. No right
of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or by the failure of the Company to comply with this
Indenture.
SECTION 10.9. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 10.3, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives written notice satisfactory to it that payments may not be made under
this Article X. The Company, the Registrar or co-registrar, the Paying Agent, a
Representative or a holder of Senior Indebtedness may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article X with respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article VII shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article X shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.7.
SECTION 10.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 10.11. ARTICLE X NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE. The failure to make a payment in respect of the Securities
by reason of any provision in this Article X shall not be construed as
preventing the occurrence of a Default or Event of Default. Nothing in this
Article X shall have any effect on the right of the Securityholders or the
Trustee to accelerate the maturity of the Securities or to make a claim for
payment under a Guarantee.
SECTION 10.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds either
(i) of U.S. Legal Tender or U.S. Government Obligations held in trust under
Article VIII by the Trustee for the payment of principal of and interest
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on the Securities or (ii) of cash and/or Cash Equivalents held pursuant to the
Pledge Agreement prior to completion of the Equity Investment and amounts that
may be drawn under the Letter of Credit referred to in such Pledge Agreement
shall not be subordinated to the prior payment of any Senior Indebtedness or
subject to the restrictions set forth in this Article X, and none of the
Securityholders shall be obligated to pay over any such amount to the Company,
any holder of Senior Indebtedness of the Company or any other creditor of the
Company.
SECTION 10.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article X, the Trustee and the Securityholders
shall be entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.2
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Securityholders or (iii) upon the Representatives for the holders of Senior
Indebtedness for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article X. In the event that the Trustee determines, in good faith, that
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article X, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article X, and, if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment. The provisions of Sections 7.1 and
7.2 shall be applicable to all actions or omissions of actions by the Trustee
pursuant to this Article X.
SECTION 10.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each
Securityholder by accepting a Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Securityholders and the holders of
Senior Indebtedness as provided in this Article X and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Securityholders or the Company or any
other Person, money or assets to which any holders of Senior
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Indebtedness shall be entitled by virtue of this Article X or otherwise.
SECTION 10.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Securityholder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE XI
SUBSIDIARY GUARANTEE
SECTION 11.1. SUBSIDIARY GUARANTEE. (a) After the Issue Date, the
Company shall cause each Restricted Subsidiary of the Company that guarantees
payment of the Bank Indebtedness to execute and deliver to the Trustee a
supplemental indenture pursuant to which such Restricted Subsidiary shall agree
to the provisions of this Article XI.
SECTION 11.2. UNCONDITIONAL GUARANTEE. Each Subsidiary Guarantor
hereby unconditionally, jointly and severally, guarantees, subject to Article
XII, to each Holder of a Security authenticated and delivered by the Trustee and
to the Trustee and its successors and assigns, that: (i) the principal of and
interest on the Securities will be promptly paid in full when due, subject to
any applicable grace period, whether at maturity, by acceleration or otherwise
and interest on the overdue principal, if any, and interest on any interest, to
the extent lawful, of the Securities and all other obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be promptly paid in full
or performed, all in accordance with the terms hereof and thereof; and (ii) in
case of any extension of time of payment or renewal of any Securities or of any
such other obligations, the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, subject to
any applicable grace period, whether at stated maturity, by acceleration or
otherwise, subject, however, in the case of clauses (i) and (ii) above, to the
limitations set forth in Section 11.6. Each Subsidiary Guarantor hereby agrees
that its obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Securities or this Indenture, the
absence of any action to enforce the same, any waiver or consent by any Holder
of the Securities with respect to any provisions hereof or
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thereof, the recovery of any judgment against the Company, any action to enforce
the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. Each Subsidiary Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities, this Indenture and
in this Guarantee. If any Holder or the Trustee is required by any court or
otherwise to return to the Company, any Subsidiary Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to the Company
or any Subsidiary Guarantor, any amount paid by the Company or any Subsidiary
Guarantor to the Trustee or such Holder, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Subsidiary Guarantor further agrees that, as between each Subsidiary Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (x) the
maturity of the obligations guaranteed hereby may be accelerated as provided in
Article VI for the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any acceleration of such
obligations as provided in Article VI, such obligations (whether or not due and
payable) shall forthwith become due and payable by each Subsidiary Guarantor for
the purpose of this Guarantee.
SECTION 11.3. SUBORDINATION OF GUARANTEE. The obligations of each
Subsidiary Guarantor to the Holders of Securities and to the Trustee pursuant to
the Guarantee and this Indenture are expressly subordinate and subject in right
of payment to the prior payment in full of all Guarantor Senior Indebtedness of
such Subsidiary Guarantor, to the extent and in the manner provided in Article
XII.
SECTION 11.4. SEVERABILITY. In case any provision of this Guarantee
shall be invalid, illegal or unenforceable, the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 11.5. RELEASE OF A SUBSIDIARY GUARANTOR. Upon (i) the release
by the lenders under the Bank Credit Agreement, related documents and future
refinancings thereof of all guarantees of a Subsidiary Guarantor and all Liens
on the property or assets of said Subsidiary Guarantor relating to such
Indebtedness or (ii) the sale or disposition (whether by merger, stock purchase,
asset sale or otherwise) of a Subsidiary Guarantor (or all or substantially all
its assets) to an entity which is not a Subsidiary of the Company and which sale
or disposition is otherwise in compliance with the terms of this
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Indenture, such Subsidiary Guarantor shall be deemed released from all
obligations under this Article XI without any further action required on the
part of the Trustee or any Holder; PROVIDED, HOWEVER, that any such termination
shall occur only to the extent that all obligations of such Subsidiary Guarantor
under the Bank Credit Agreement and all of its guarantees of, and under all of
its pledges of assets or other security interests which secure, such
Indebtedness of the Company or the Subsidiary Guarantor shall also terminate
upon such release, sale or transfer.
The Trustee shall execute an appropriate instrument delivered by the
Company evidencing such release upon receipt of a request by the Company
accompanied by an Officers' Certificate and Opinion of Counsel certifying as to
the compliance with this Section 11.5. Any Subsidiary Guarantor not so released
remains liable for the full amount of principal of and interest on the
Securities as provided in this Article XI.
SECTION 11.6. LIMITATION OF SUBSIDIARY GUARANTOR'S LIABILITY. Each
Subsidiary Guarantor and by its acceptance hereof each Holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Subsidiary Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal or state law. To effectuate the foregoing intention, the Holders and
such Subsidiary Guarantor hereby irrevocably agree that the obligations of such
Subsidiary Guarantor under the Guarantee shall be limited to the maximum amount
as will, after giving effect to all other contingent and fixed liabilities of
such Subsidiary Guarantor (including, but not limited to, the Guarantor Senior
Indebtedness of such Subsidiary Guarantor) and after giving effect to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Guarantee or pursuant to Section 11.8, result in the obligations of such
Subsidiary Guarantor under the Guarantee not constituting such fraudulent
transfer or conveyance.
SECTION 11.7. SUBSIDIARY GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS. (1) Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of a Subsidiary Guarantor with or into the
Company or another Subsidiary Guarantor that is a Wholly Owned Restricted
Subsidiary of the Company or shall prevent any sale of assets or conveyance of
the property of a Subsidiary Guarantor as an entirety or substantially as an
entirety, to the Company or another Subsidiary Guarantor that is a Wholly Owned
Restricted Subsidiary of the Company. Upon any such consolidation, merger, sale
or conveyance, the Guarantee given by such Subsidiary Guarantor shall no longer
have any force or effect.
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(2) Except as set forth in Article IV, Article V and this Article XI,
nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of a Subsidiary Guarantor with or into a corporation
or corporations other than the Company or another Subsidiary Guarantor (whether
or not affiliated with the Subsidiary Guarantor) or shall prevent any sale of
assets or conveyance of the property of a Subsidiary Guarantor as an entirety or
substantially as an entirety, to a corporation or corporations other than the
Company or another Subsidiary Guarantor (whether or not affiliated with the
Subsidiary Guarantor); PROVIDED, HOWEVER, that, subject to Sections 11.5 and
11.7(a), (i) immediately after such transaction and giving effect thereto, such
transaction does not (a) violate any covenants set forth herein or (b) result in
a Default or Event of Default under this Indenture that is continuing, (ii) upon
any such consolidation, merger, sale or conveyance, the Guarantee of such
Subsidiary Guarantor set forth in this Article XI, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by such Subsidiary Guarantor, shall be expressly
assumed (in the event that the Subsidiary Guarantor is not the surviving
corporation in the merger), by supplemental indenture satisfactory in form to
the Trustee and in compliance with Section 9.6, executed and delivered to the
Trustee, by the corporation formed by such consolidation, or into which the
Subsidiary Guarantor shall have merged, or by the corporation that shall have
acquired such property, (iii) in the event that such Subsidiary Guarantor is not
the surviving corporation in the merger, such surviving corporation shall be a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia and (iv) immediately after giving
effect to such transaction (on a pro forma basis, including any Indebtedness
incurred or anticipated to be incurred in connection with such transaction and
including adjustments that are (i) directly attributable to such transaction and
(ii) factually supportable), the Company is able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.3. In the case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by supplemental indenture
executed and delivered to the Trustee and satisfactory in form to the Trustee of
the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Subsidiary Guarantor, such successor
corporation shall succeed to and be substituted for the Subsidiary Guarantor
with the same effect as if it had been named herein as a Subsidiary Guarantor.
SECTION 11.8. CONTRIBUTION. In order to provide for just and equitable
contribution among the Subsidiary Guarantors, the Subsidiary Guarantors agree,
INTER SE, that in the event any payment or distribution is made by any
Subsidiary Guarantor (a "Funding Subsidiary Guarantor") under the Guarantee,
such Funding
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Subsidiary Guarantor shall be entitled to a contribution from all other
Subsidiary Guarantors in a pro rata amount based on the Adjusted Net Assets of
each Subsidiary Guarantor (including the Funding Subsidiary Guarantor) for all
payments, damages and expenses incurred by that Funding Subsidiary Guarantor in
discharging the Company's obligations with respect to the Securities or any
other Subsidiary Guarantor's obligations with respect to the Guarantee.
"Adjusted Net Assets" of such Subsidiary Guarantor at any date shall mean the
lesser of the amount by which (x) the fair value of the property of such
Subsidiary Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities incurred or assumed on such date and after giving effect
to any collection from any Subsidiary of such Guarantee in respect of the
obligation of such Subsidiary under the Guarantee), but excluding liabilities
under the Guarantee, of such Subsidiary Guarantor at such date and (y) the
present fair saleable value of the assets of such Subsidiary Guarantor at such
date exceeds the amount that will be required to pay the probable liability of
such Subsidiary Guarantor on its debts including, without limitation, Guarantor
Senior Indebtedness (after giving effect to all other fixed and contingent
liabilities incurred or assumed on such date and after giving effect to any
collection from any Subsidiary of such Subsidiary Guarantor in respect of the
obligations of such Subsidiary under the Guarantee), excluding debt in respect
of the Guarantee of such Subsidiary Guarantor, as they become absolute and
matured.
SECTION 11.9. WAIVER OF SUBROGATION. Until all Obligations are paid in
full each Subsidiary Guarantor hereby irrevocably waives any claim or other
rights which it may now or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of such Subsidiary
Guarantor's obligations under the Guarantees and this Indenture, including,
without limitation, any right of subrogation, reimbursement, exoneration,
indemnification, and any right to participate in any claim or remedy of any
Holder of Securities against the Company, whether or not such claim, remedy or
right arises in equity, or under contract, statute or common law, including,
without limitation, the right to take or receive from the Company, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Subsidiary Guarantor in violation of the preceding sentence
and the Securities shall not have been paid in full, such amount shall have been
deemed to have been paid to such Subsidiary Guarantor for the benefit of, and
held in trust for the benefit of, the Holders of the Securities, and shall,
subject to the provisions of Section 11.3, Article X and Article XII, forthwith
be paid to the Trustee for the benefit of such Holders to be credited and
applied upon the Securities, whether matured or unmatured, in accordance with
the terms of this Indenture. Each
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Subsidiary Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
the waiver set forth in this Section 11.9 is knowingly made in contemplation of
such benefits.
SECTION 11.10. WAIVER OF STAY, EXTENSION OR USURY LAWS. Each
Subsidiary Guarantor covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive each such Subsidiary Guarantor from
performing its Guarantee as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) each such
Subsidiary Guarantor hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE XII
SUBORDINATION OF GUARANTEES
SECTION 12.1. AGREEMENT TO SUBORDINATE. Each Subsidiary Guarantor
agrees, and each Securityholder by accepting a Security agrees, that the
Indebtedness and other obligations evidenced by the Guarantees are subordinated
in right of payment, to the extent and in the manner provided in this Article
XII, to the prior payment in cash or Cash Equivalents of all Guarantor Senior
Indebtedness and that the subordination is for the benefit of and enforceable by
the holders of Guarantor Senior Indebtedness. The Guarantee of each Subsidiary
Guarantor shall in all respects rank PARI PASSU with all other Senior
Subordinated Indebtedness of such Subsidiary Guarantor and only Indebtedness of
each Subsidiary Guarantor which is Guarantor Senior Indebtedness shall rank
senior to the Guarantee of each Subsidiary Guarantor in accordance with the
provisions set forth herein. All provisions of this Article XII shall be subject
to Section 12.12.
SECTION 12.2. LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment
or distribution of the assets or securities of any Subsidiary Guarantor to
creditors upon a total or partial liquidation or a dissolution or reorganization
of or similar proceeding relating to any Subsidiary Guarantor or its property or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to any Subsidiary Guarantor or its property, or in an assignment for
the benefit of creditors or any marshaling of the assets and liabilities of any
Subsidiary Guarantor:
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(a) holders of Guarantor Senior Indebtedness shall be entitled to
receive payment in full in cash or Cash Equivalents of the Guarantor Senior
Indebtedness before Holders shall be entitled to receive any payment of
principal of, premium, if any, or interest on or any other amount in
respect of the Securities from such Subsidiary Guarantor; and
(b) until the Guarantor Senior Indebtedness is paid in full in cash or
Cash Equivalents, any payment or distribution to which Holders would be
entitled from such Subsidiary Guarantor but for this Article XII shall be
made to holders of Guarantor Senior Indebtedness as their interests may
appear.
SECTION 12.3. DEFAULT ON GUARANTOR SENIOR INDEBTEDNESS. A Subsidiary
Guarantor may not directly or indirectly pay the principal of, premium (if any)
or interest on or any other amount in respect of the Securities or make any
deposit pursuant to Article VIII and may not repurchase, redeem or otherwise
retire any Securities or make any payments with respect to any Obligations on
the Guarantee of such Subsidiary Guarantor (collectively, "PAY THE SECURITIES")
if (i) any Senior Indebtedness or Guarantor Senior Indebtedness is not paid when
due or (ii) any other default on Senior Indebtedness or Guarantor Senior
Indebtedness occurs and the maturity of such Senior Indebtedness or Guarantor
Senior Indebtedness is accelerated in accordance with its terms unless, in
either case, (x) the default has been cured or waived and any such acceleration
has been rescinded or (y) such Senior Indebtedness or Guarantor Senior
Indebtedness has been paid in full in cash or Cash Equivalents; PROVIDED,
HOWEVER, that each Subsidiary Guarantor may pay the Securities in respect to any
Obligations on the Guarantee of such Subsidiary Guarantor without regard to the
foregoing if the Company and the Trustee receive written notice approving such
payment from the Representatives of the holders of the Senior Indebtedness or
Guarantor Senior Indebtedness with respect to which either of the events set
forth in clause (i) and (ii) above has occurred and is continuing. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the preceding sentence) with respect to any Senior Indebtedness or Guarantor
Senior Indebtedness pursuant to which the maturity thereof may be accelerated
immediately without further notice (except such notice as may be required to
effect such acceleration) or the expiration of any applicable grace periods,
each Subsidiary Guarantor may not pay the Securities during the Payment Blockage
Period (as defined in Section 10.3) commencing upon the receipt by the Trustee
(with a copy to the Company) of the Blockage Notice (as defined in Section 10.3)
of such default from the Representative of the holders of such Senior
Indebtedness or Guarantor Senior Indebtedness specifying an election to effect a
Payment Blockage Period and ending 179 days thereafter (or earlier if such
Payment Blockage Period is
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terminated (i) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice, (ii) because such Senior Indebtedness
or Guarantor Senior Indebtedness has been repaid in full in cash or Cash
Equivalents or (iii) because the default giving rise to such Blockage Notice is
no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (unless the events described in the first
sentence of this Section 12.3 shall have occurred and be continuing), such
Subsidiary Guarantor may resume payments on the Securities after the end of such
Payment Blockage Period, including any missed payments. Not more than one
Blockage Notice may be given in any consecutive 360-day period, irrespective of
the number of defaults with respect to Senior Indebtedness or Guarantor Senior
Indebtedness during such period; PROVIDED, HOWEVER, that if any Blockage Notice
within such 360-day period is given by or on behalf of any holders of Designated
Senior Indebtedness other than the Bank Indebtedness, a Representative of
holders of Bank Indebtedness may give another Blockage Notice within such
period; PROVIDED, FURTHER, HOWEVER, that in no event may the total number of
days during which any Payment Blockage Period or Periods is in effect exceed 179
days in the aggregate during any 360 consecutive day period.
SECTION 12.4. ACCELERATION OF PAYMENT OF SECURITIES. If payment of the
Securities is accelerated because of an Event of Default, each Subsidiary
Guarantor shall promptly notify the holders of the Bank Indebtedness of the
acceleration and provide copies of such notices to the Trustee.
If payment of the Securities is accelerated, each Subsidiary Guarantor
shall not pay the Securities with respect to any Obligations on the Guarantee of
such Subsidiary Guarantor until five Business Days after such holders (or their
Representatives) receive notice of such acceleration and, thereafter, may pay
the Securities only if permitted under this Article XII.
SECTION 12.5. WHEN PAYMENT OR DISTRIBUTION MUST BE PAID OVER. If a
payment or distribution is made to Holders that because of this Article XII
should not have been made to them, the Holders who receive the payment or
distribution shall hold it in trust for holders of Guarantor Senior Indebtedness
and pay it over to them as their interests may appear.
SECTION 12.6. SUBROGATION. After all Guarantor Senior Indebtedness is
paid in full in cash or Cash Equivalents and until the Securities are paid in
full, Holders shall be subrogated to the rights of holders of Guarantor Senior
Indebtedness to receive distributions applicable to Guarantor Senior
Indebtedness. A distribution made under this Article XII to holders of Guarantor
Senior Indebtedness which otherwise would have been made to Holders is not, as
between each Subsidiary
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Guarantor and Holders, a payment by each Subsidiary Guarantor on Guarantor
Senior Indebtedness.
SECTION 12.7. RELATIVE RIGHTS. This Article XII defines the relative
rights of Holders and holders of Guarantor Senior Indebtedness. Nothing in this
Indenture shall:
(a) impair, as between each Subsidiary Guarantor and Holders, the
obligation of each Subsidiary Guarantor, which is absolute and
unconditional, to guarantee the payment of principal of and interest on the
Securities in accordance with the terms of the Securities and the
Guarantees; or
(b) prevent the Trustee or any Holder from exercising its available
remedies upon a Default, subject to the rights of holders of Guarantor
Senior Indebtedness to receive payments and distributions otherwise payable
to Holders.
SECTION 12.8. SUBORDINATION MAY NOT BE IMPAIRED BY SUBSIDIARY
GUARANTOR. No right of any holder of Guarantor Senior Indebtedness to enforce
the subordination of the Indebtedness and other obligations evidenced by the
Guarantees shall be impaired by any act or failure to act by any Subsidiary
Guarantor or by its failure to comply with this Indenture.
SECTION 12.9. RIGHTS OF TRUSTEE AND PAYING AGENT. Notwithstanding
Section 12.3, the Trustee or Paying Agent may continue to make payments on the
Securities and shall not be charged with knowledge of the existence of facts
that would prohibit the making of any such payments unless, not less than two
Business Days prior to the date of such payment, a Trust Officer of the Trustee
receives written notice satisfactory to it that payments may not be made under
this Article XII. Each Subsidiary Guarantor, the Registrar or co-registrar, the
Paying Agent, a Representative or a holder of Guarantor Senior Indebtedness may
give the notice.
The Trustee in its individual or any other capacity may hold Guarantor
Senior Indebtedness with the same rights it would have if it were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article XII with respect to any Guarantor Senior Indebtedness which may at any
time be held by it, to the same extent as any other holder of Guarantor Senior
Indebtedness; and nothing in Article VII shall deprive the Trustee of any of its
rights as such holder. Nothing in this Article XII shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.7.
SECTION 12.10. DISTRIBUTION OR NOTICE TO REPRESENTATIVE. Whenever a
payment or distribution is to be made or a notice given to holders of Guarantor
Senior Indebtedness,
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the payment or distribution may be made and the notice given to their
Representative (if any).
SECTION 12.11. ARTICLE XII NOT TO PREVENT EVENTS OF DEFAULT OR LIMIT
RIGHT TO ACCELERATE. The failure to make a payment pursuant to the Securities
and the Guarantees by reason of any provision in this Article XII shall not be
construed as preventing the occurrence of a Default. Nothing in this Article XII
shall have any effect on the right of the Holders or the Trustee to accelerate
the maturity of the Securities.
SECTION 12.12. TRUST MONEYS NOT SUBORDINATED. Notwithstanding anything
contained herein to the contrary, payments from U.S. Legal Tender or the
proceeds of U.S. Government Obligations held in trust under Article VIII by the
Trustee for the payment of principal of and interest on the Securities shall not
be subordinated to the prior payment of any Guarantor Senior Indebtedness or
subject to the restrictions set forth in this Article XII, and none of the
Holders shall be obligated to pay over any such amount to any Subsidiary
Guarantor or any holder of Guarantor Senior Indebtedness of such Subsidiary
Guarantor or any other creditor of such Subsidiary Guarantor.
SECTION 12.13. TRUSTEE ENTITLED TO RELY. Upon any payment or
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.2
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Guarantor Senior
Indebtedness for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Guarantor Senior
Indebtedness and other Indebtedness of each Subsidiary Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XII. In the event that
the Trustee determines, in good faith, that evidence is required with respect to
the right of any Person as a holder of Guarantor Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XII, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Guarantor Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.1 and 7.2 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
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SECTION 12.14. TRUSTEE TO EFFECTUATE SUBORDINATION. Each Holder by
accepting a Security authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination between the Holders and the holders of Guarantor Senior
Indebtedness as provided in this Article XII and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 12.15. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF GUARANTOR SENIOR
INDEBTEDNESS. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Guarantor Senior Indebtedness and shall not be liable to any such
holders if it shall mistakenly pay over or distribute to Holders or any
Subsidiary Guarantor or any other Person, money or assets to which any holders
of Guarantor Senior Indebtedness shall be entitled by virtue of this Article XII
or otherwise.
SECTION 12.16. RELIANCE BY HOLDERS OF GUARANTOR SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Holder by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Guarantor Senior
Indebtedness, whether such Guarantor Senior Indebtedness was created or acquired
before or after the issuance of the Securities, to acquire and continue to hold,
or to continue to hold, such Guarantor Senior Indebtedness and such holder of
Guarantor Senior Indebtedness shall be deemed conclusively to have relied on
such subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Guarantor Senior Indebtedness.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control.
SECTION 13.2. NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Safelite Glass Corp.
1105 Schrock Road
Columbus, Ohio 43229
Attention of General Counsel
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if to the Trustee:
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Attention of Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
to the Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to theiR rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 13.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company, upon request, shall furnish
to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, 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 stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 13.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
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(1) a statement that the individual making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 13.6. WHEN SECURITIES DISREGARDED. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded. Also,
subject to the foregoing, only Securities outstanding at the time shall be
considered in any such determination.
SECTION 13.7. RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The
Trustee may make reasonable rules for action by or a meeting of Securityholders.
The Registrar and the Paying Agent may make reasonable rules for their
functions.
SECTION 13.8. LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York or in the state in which the corporate trust office of the
Trustee is located. If a payment date is a Legal Holiday, payment shall be made
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period. If a regular record date is a Legal Holiday,
the record date shall not be affected.
SECTION 13.9. GOVERNING LAW. This Indenture and the Securities shall
be governed by, and construed in accordance with, the laws of the State of New
York but without giving effect to applicable principles of conflicts of law to
the extent that the application of the laws of another jurisdiction would be
required thereby.
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SECTION 13.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 13.11. SUCCESSORS. All agreements of the Company and the
Subsidiary Guarantors in this Indenture and the Securities shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 13.12. MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 13.13. VARIABLE PROVISIONS. The Company initially appoints the
Trustee as Paying Agent and Registrar and custodian with respect to any Global
Securities.
SECTION 13.14. QUALIFICATION OF INDENTURE. The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees for the Company, the Trustee and the Holders)
incurred in connection therewith, including, but not limited to, costs and
expenses of qualification of this Indenture and the Securities and printing this
Indenture and the Securities. The Trustee shall be entitled to receive from the
Company any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 13.15. TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
SAFELITE GLASS CORP.
By: /s/ Douglas A. Herron
------------------------------
Name: Douglas A. Herron
Title: Sr. VP & CFO
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Robert J. Dunn
------------------------------
Name: Robert J. Dunn
Title: Vice President
115
EXHIBIT A
SAFELITE GLASS CORP.
No. __ Principal Amount $_____________
CUSIP NO. _________
9 7/8% Series C Senior Subordinated Note due 2006
Safelite Glass Corp., a Delaware corporation, promises to pay
to __________, or registered assigns, the principal sum of _____________
Dollars on December 15, 2006.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated: December __, 1998 SAFELITE GLASS CORP.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
-----------------------------
Authorized Signatory
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(Reverse of Security)
9 7/8% Series C Senior Subordinated Note due 2006
1. INTEREST
Safelite Glass Corp., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above.
The Company will pay interest semiannually on June 15 and December 15
of each year, commencing June 15, 1998. Interest on the Securities will accrue
from the most recent date to which interest has been paid on the Securities or,
if no interest has been paid, from December 18, 1998. The Company shall pay
interest on overdue principal or premium, if any, and interest at the rate borne
by the Securities to the extent lawful. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT
By at least 10:00 A.M. (New York City time) on the date on which any
principal of or interest on any Security is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal, premium, if any, and/or interest. The Company will pay interest
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the June 1 or December 1 immediately
preceding the interest payment date even if Securities are canceled, repurchased
or redeemed after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest by check
payable in such money. It may mail an interest check to a Holder's registered
address.
3. PAYING AGENT AND REGISTRAR
Initially, State Street Bank and Trust Company, a Massachusetts trust
company (the "Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice to
any Securityholder. The Company or any of its domestically
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incorporated Wholly Owned Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as of
December 18, 1998 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured senior subordinated obligations
of the Company limited to $55 million aggregate principal amount (subject to
Section 2.9 of the Indenture). This Security is one of the Initial Notes
referred to in the Indenture. The Securities include the Initial Notes and any
Exchange Notes or Private Exchange Notes issued in exchange for the Initial
Notes pursuant to the Indenture and the Registration Rights Agreement. The
Initial Notes, the Exchange Notes and the Private Exchange Notes are treated as
a single class of securities under the Indenture. The Indenture imposes certain
limitations on the incurrence of Indebtedness by the Company and its Restricted
Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and its Restricted Subsidiaries, the purchase or redemption
of Capital Stock of the Company and Capital Stock of such Restricted
Subsidiaries, the sale or transfer of assets and Capital Stock of Restricted
Subsidiaries, the investments of the Company, its Subsidiaries and transactions
with Affiliates, Liens, dividends and other payment restrictions affecting
Subsidiaries, incurrence of Indebtedness senior to the Securities but junior to
Senior Indebtedness, preferred stock of Subsidiaries, future guarantees and
conduct of business. In addition, the Indenture limits the ability of the
Company and its Restricted Subsidiaries to restrict distributions and dividends
from Restricted Subsidiaries.
To guarantee the due and punctual payment of the principal, premium,
if any, and interest on the Securities and all other amounts payable by the
Company under the Indenture and the Securities when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors will have,
jointly and severally, unconditionally
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4
guaranteed such obligations on a senior subordinated basis pursuant to the terms
of the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in this paragraph 5, the Securities will not be
redeemable at the option of the Company prior to December 15, 2001. On and after
such date, the Securities will be redeemable, at the Company's option, in whole
or in part, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's registered address, at the following
redemption prices (expressed as percentages of principal amount) if redeemed
during the twelve month period commencing on December 15 of the year set forth
below plus, in each case, accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2001..................................... 104.9375%
2002..................................... 103.2917%
2003..................................... 101.6458%
2004 and thereafter...................... 100.0000%
Notwithstanding the foregoing, at any time, or from time to time, on
or prior to December 15, 1999, the Company may, at its option, use the net cash
proceeds of one or more Equity Offerings to redeem up to $19.25 million of the
aggregate principal amount of Securities originally issued at a redemption price
equal to 109.875% of the principal amount thereof plus accrued interest to the
date of redemption; PROVIDED that at least $35.75 million of the original
principal amount of Securities remains outstanding immediately after any such
redemption. In order to effect the foregoing redemption with the proceeds of any
such Equity Offering, the Company shall make such redemption not more than 120
days after the consummation of any such Equity Offering.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Securities to be redeemed
at his registered address. If fewer than all the Securities are to be redeemed,
the Trustee shall select the Securities to be redeemed pro rata or by lot or by
a method that complies with applicable legal and securities exchange
requirements, if any, and that the Trustee considers fair and appropriate and in
accordance with methods generally used at the time of selection by fiduciaries
in similar
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5
circumstances; PROVIDED, HOWEVER, that if a partial redemption is made with the
proceeds of an Equity Offering, selection of the Securities or portion thereof
for redemption shall be made by the Trustee only on a pro rata basis, unless
such method is otherwise prohibited. Securities in denominations of principal
amount larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000. If money sufficient to pay the redemption price of and accrued and
unpaid interest on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
7. OPTION OF HOLDER TO ELECT PURCHASE
Upon a Change of Control Triggering Event, any Holder of Securities
will have the right to require that the Company purchase all or a portion of
such Holder's Securities pursuant to the Indenture at a purchase price equal to
101% of the principal amount thereof plus accrued interest to the date of
repurchase as provided in, and subject to the terms of, the Indenture.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company or a Restricted Subsidiary from an Asset Sale are not
used (a) to prepay any Senior Indebtedness or Guarantor Senior Indebtedness and,
in the case of any Senior Indebtedness under any revolving credit facility,
effect a permanent reduction in the availability under such revolving credit
facility, (b) to reinvest in Productive Assets or (c) a combination of
prepayment and investment permitted by the foregoing clauses (a) and (b), then
such aggregate amount of Net Cash Proceeds which have not been applied on or
before such Net Proceeds Offer Trigger Date shall be applied by the Company or
such Restricted Subsidiary to make an offer to purchase on a date not less than
30 nor more than 45 days following the applicable Net Proceeds Offer Trigger
Date from all Holders on a pro rata basis that amount of Securities equal to the
Note Offer Amount at a price equal to 100% of the principal amount of the
Securities to be purchased, plus accrued and unpaid interest thereon.
8. SUBORDINATION
The Securities are subordinated to Senior Indebtedness, as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Company agrees, and each
Securityholder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give them effect and
appoints the Trustee as attorney-in-fact for such purpose.
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6
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in denominations
of principal amount of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange of
any Security for a period beginning (i) 15 Business Days before the mailing of a
notice of an offer to repurchase or redeem Securities and ending at the close of
business on the day of such mailing or (b) 15 Business Days before an interest
payment date and ending on such interest payment date.
10. PERSONS DEEMED OWNERS
The registered holder of this Security may be treated as the owner of
it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. DEFEASANCE
Subject to certain conditions set forth in the Indenture, the Company
at any time may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of, premium, if any, and
interest on the Securities to redemption or maturity, as the case may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal
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7
amount of the outstanding Securities. Subject to certain exceptions set forth in
the Indenture, without the consent of any Securityholder, the Company, and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the Indenture,
or to make certain changes in Article X of the Indenture or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities or to secure the Securities,
or to add additional covenants or surrender rights and powers conferred on the
Company, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to provide for the issuance of
Exchange Notes.
14. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest on the Securities; (ii) default in payment of principal
on the Securities at maturity, upon redemption pursuant to paragraph 5 of the
Securities, upon required repurchase, upon declaration or otherwise;
(iii) failure by the Company to comply with other agreements in the Indenture or
the Securities, in certain cases subject to notice and lapse of time; (iv)
failure to pay at final maturity (giving effect to any applicable grace period
and any extensions thereof) the principal amount of any Indebtedness of the
Company or any Restricted Subsidiary (other than a Receivables Entity) of the
Company, or the acceleration of the final maturity of any such Indebtedness, if
the aggregate principal amount of any such Indebtedness, together with the
principal amount of any such other Indebtedness in default for failure to pay
principal at final maturity or which has been accelerated, aggregates $10.0
million or more at any time; (v) certain events of bankruptcy or insolvency with
respect to the Company or any Significant Subsidiary; (vi) certain final,
non-appealable judgments or decrees for the payment of money in excess of $10.0
million against the Company or any Significant Subsidiary; and (vii) any
Guarantee by a Significant Subsidiary ceases to be in full force and effect
(except as contemplated by the terms of the Indenture) or any Subsidiary
Guarantor that is a Significant Subsidiary denies or disaffirms its obligations
under the Indenture or its Guarantee. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the Securities may declare all the Securities to be due and payable immediately.
Certain events of bankruptcy or insolvency are Events of Default which will
result in the Securities being due and payable immediately upon the occurrence
of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may
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8
refuse to enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a majority in
principal amount of the Securities may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default or Event of Default (except a Default or Event of Default in
payment of principal or interest) if it determines that withholding notice is in
their interest.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
16. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
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19. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
20. GOVERNING LAW
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in it
the text of this Security in larger type. Requests may be made to: Safelite
Glass Corp., 1105 Schrock Road, Columbus, Ohio 43216, Attention: General
Counsel.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
(Print or type assignee's name, address and zip code)
---------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date: ____________________ Your Signature: ___________________
Signature Guarantee: ______________________________
(Signature must be guaranteed)
- --------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is three years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
1[ ] acquired for the undersigned's own account,
without transfer (in satisfaction of Section
2.6(a)(ii)(A) or Section 2.6(d)(i)(A) of the
Indenture); or
2[ ] transferred to the Company; or
3[ ] transferred pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
4[ ] transferred pursuant to an effective registration
statement under the Securities Act; or
5[ ] transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
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2
6[ ] transferred to an institutional "accredited investor"
(as defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933), that has furnished to
the Trustee a signed letter containing certain
representations and agreements (the form of which
letter appears as Section 2.7 of the Indenture); or
7[ ] transferred pursuant to another available
exemption from the registration requirements
of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; PROVIDED, HOWEVER, that if box (5), (6) or
(7) is checked, the Trustee or the Company may require, prior to registering any
such transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933, such as the exemption provided by
Rule 144 under such Act.
------------------------------
Signature
Signature Guarantee:
- ------------------------- ------------------------------
Signature
(Signature must be guaranteed)
- ------------------------------------------------------------
126
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Amount of decrease Amount of increase Principal Amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized officer
Date of of this Global of this Global following such of Trustee or
Exchange Security Security decrease or increase Securities Custodian
127
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.6 or 4.8 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.6 or 4.8 of the Indenture, state the amount in
principal amount (must be integral multiple of $1,000): $
Date: __________ Your Signature ____________________________
(Sign exactly as your name appears on the
other side of the Security)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
128
EXHIBIT B
SAFELITE GLASS CORP.
No. __ Principal Amount $_____________
CUSIP NO. ___________
9 7/8% Series D Senior Subordinated Note due 2006
Safelite Glass Corp., a Delaware corporation, promises to pay
to __________, or registered assigns, the principal sum of
___________________________ Dollars on December 15, 2006.
Interest Payment Dates: June 15 and December 15.
Record Dates: June 1 and December 1.
Additional provisions of this Security are set forth on the
other side of this Security.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers and a facsimile
of its corporate seal to be affixed hereto and imprinted hereon.
Dated: _________ __, 1998 SAFELITE GLASS CORP.
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY
as Trustee, certifies
that this is one of
the Securities referred
to in the Indenture.
by
------------------------
Authorized Signatory
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2
(Reverse of Security)
9 7/8% Series D Senior Subordinated Note due 2006
1. INTEREST
Safelite Glass Corp., a Delaware corporation (such corporation, and
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "Company"), promises to pay interest on the principal amount
of this Security at the rate per annum shown above.
The Company will pay interest semiannually on June 15 and December 15
of each year, commencing June 15, 1999. Interest on the Securities will accrue
from the most recent date to which interest has been paid on the Securities or,
if no interest has been paid, from December 18, 1998. The Company shall pay
interest on overdue principal or premium, if any, and interest at the rate borne
by the Securities to the extent lawful. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT
By at least 10:00 A.M. (New York City time) on the date on which any
principal of or interest on any Security is due and payable, the Company shall
irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay
such principal, premium, if any, and/or interest. The Company will pay interest
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the June 1 or December 1 immediately
preceding the interest payment date even if Securities are canceled, repurchased
or redeemed after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest by check
payable in such money. It may mail an interest check to a Holder's registered
address.
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3. PAYING AGENT AND REGISTRAR
Initially, State Street Bank and Trust Company, a Massachusetts trust
company (the "Trustee"), will act as Paying Agent and Registrar. The Company may
appoint and change any Paying Agent, Registrar or co-registrar without notice to
any Securityholder. The Company or any of its domestically incorporated Wholly
Owned Restricted Subsidiaries may act as Paying Agent, Registrar or
co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as of
December 18, 1998 (as it may be amended or supplemented from time to time in
accordance with the terms thereof, the "Indenture"), among the Company and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture (the
"Act"). Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture. The Securities are subject to all such terms,
and Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are general unsecured senior subordinated obligations
of the Company limited to $55 million aggregate principal amount (subject to
Section 2.9 of the Indenture). This Security is one of the Initial Notes
referred to in the Indenture. The Securities include the Initial Notes and any
Exchange Notes or Private Exchange Notes issued in exchange for the Initial
Notes pursuant to the Indenture and the Registration Rights Agreement. The
Initial Notes, the Exchange Notes and the Private Exchange Notes are treated as
a single class of securities under the Indenture. The Indenture imposes certain
limitations on the incurrence of Indebtedness by the Company and its Restricted
Subsidiaries, the payment of dividends and other distributions on the Capital
Stock of the Company and its Restricted Subsidiaries, the purchase or redemption
of Capital Stock of the Company and Capital Stock of such Restricted
Subsidiaries, the sale or transfer of assets and Capital Stock of Restricted
Subsidiaries, the investments of the Company, its Subsidiaries and transactions
with Affiliates, Liens, dividends and other payment restrictions affecting
Subsidiaries, incurrence of Indebtedness senior to the Securities but junior to
Senior Indebtedness, preferred stock of Subsidiaries, future guarantees and
conduct of business. In addition, the Indenture limits the ability of the
Company and its Restricted Subsidiaries to restrict distributions and dividends
from Restricted Subsidiaries.
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To guarantee the due and punctual payment of the principal, premium,
if any, and interest on the Securities and all other amounts payable by the
Company under the Indenture and the Securities when and as the same shall be due
and payable, whether at maturity, by acceleration or otherwise, according to the
terms of the Securities and the Indenture, the Subsidiary Guarantors will have,
jointly and severally, unconditionally guaranteed such obligations on a senior
subordinated basis pursuant to the terms of the Indenture.
5. OPTIONAL REDEMPTION
Except as set forth in this paragraph 5, the Securities will not be
redeemable at the option of the Company prior to December 15, 2001. On and after
such date, the Securities will be redeemable, at the Company's option, in whole
or in part, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's registered address, at the following
redemption prices (expressed as percentages of principal amount) if redeemed
during the twelve month period commencing on December 15 of the year set forth
below plus, in each case, accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date):
Year Redemption Price
---- ----------------
2001............................... 104.9375%
2002............................... 103.2917%
2003............................... 101.6458%
2004 and thereafter................ 100.0000%
Notwithstanding the foregoing, at any time, or from time to time, on
or prior to December 15, 1999, the Company may, at its option, use the net cash
proceeds of one or more Equity Offerings to redeem up to $19.25 million of the
aggregate principal amount of Securities originally issued at a redemption price
equal to 109.875% of the principal amount thereof plus accrued interest to the
date of redemption; PROVIDED that at least $35.75 million of the original
principal amount of Securities remains outstanding immediately after any such
redemption. In order to effect the foregoing redemption with the proceeds of any
such Equity Offering, the Company shall make such redemption not more than 120
days after the consummation of any such Equity Offering.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each
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Holder of Securities to be redeemed at his registered address. If fewer than all
the Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by a method that complies with applicable legal
and securities exchange requirements, if any, and that the Trustee considers
fair and appropriate and in accordance with methods generally used at the time
of selection by fiduciaries in similar circumstances; PROVIDED, HOWEVER, that if
a partial redemption is made with the proceeds of an Equity Offering, selection
of the Securities or portion thereof for redemption shall be made by the Trustee
only on a pro rata basis, unless such method is otherwise prohibited. Securities
in denominations of principal amount larger than $1,000 may be redeemed in part
but only in whole multiples of $1,000. If money sufficient to pay the redemption
price of and accrued and unpaid interest on all Securities (or portions thereof)
to be redeemed on the redemption date is deposited with the Paying Agent on or
before the redemption date and certain other conditions are satisfied, on and
after such date interest ceases to accrue on such Securities (or such portions
thereof) called for redemption.
7. OPTION OF HOLDER TO ELECT PURCHASE
Upon a Change of Control Triggering Event, any Holder of Securities
will have the right to require that the Company purchase all or a portion of
such Holder's Securities pursuant to the Indenture at a purchase price equal to
101% of the principal amount thereof plus accrued interest to the date of
repurchase as provided in, and subject to the terms of, the Indenture.
Under certain circumstances, in the event the Net Cash Proceeds
received by the Company or a Restricted Subsidiary from an Asset Sale are not
used (a) to prepay any Senior Indebtedness or Guarantor Senior Indebtedness and,
in the case of any Senior Indebtedness under any revolving credit facility,
effect a permanent reduction in the availability under such revolving credit
facility, (b) to reinvest in Productive Assets or (c) a combination of
prepayment and investment permitted by the foregoing clauses (a) and (b), then
such aggregate amount of Net Cash Proceeds which have not been applied on or
before such Net Proceeds Offer Trigger Date shall be applied by the Company or
such Restricted Subsidiary to make an offer to purchase on a date not less than
30 nor more than 45 days following the applicable Net Proceeds Offer Trigger
Date from all Holders on a pro rata basis that amount of Securities equal to the
Note Offer Amount at a price equal to 100% of the principal amount of the
Securities to be purchased, plus accrued and unpaid interest thereon.
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8. SUBORDINATION
The Securities are subordinated to Senior Indebtedness, as defined in
the Indenture. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Company agrees, and each
Securityholder by accepting a Security agrees, to the subordination provisions
contained in the Indenture and authorizes the Trustee to give them effect and
appoints the Trustee as attorney-in-fact for such purpose.
9. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form without coupons in denominations
of principal amount of $1,000 and whole multiples of $1,000. A Holder may
transfer or exchange Securities in accordance with the Indenture. The Registrar
may require a Holder, among other things, to furnish appropriate endorsements or
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange of
any Security for a period beginning (i) 15 Business Days before the mailing of a
notice of an offer to repurchase or redeem Securities and ending at the close of
business on the day of such mailing or (b) 15 Business Days before an interest
payment date and ending on such interest payment date.
10. PERSONS DEEMED OWNERS
The registered holder of this Security may be treated as the owner of
it for all purposes.
11. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. DEFEASANCE
Subject to certain conditions set forth in the Indenture, the Company
at any time may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money or U.S.
Government Obligations for the payment of principal of, premium, if any, and
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interest on the Securities to redemption or maturity, as the case
may be.
13. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount of the outstanding Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount of the
outstanding Securities. Subject to certain exceptions set forth in the
Indenture, without the consent of any Securityholder, the Company, and the
Trustee may amend the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency, or to comply with Article V of the Indenture,
or to make certain changes in Article X of the Indenture or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities or to secure the Securities,
or to add additional covenants or surrender rights and powers conferred on the
Company, or to comply with any request of the SEC in connection with qualifying
the Indenture under the Act, or to make any change that does not adversely
affect the rights of any Securityholder, or to provide for the issuance of
Exchange Notes.
14. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default for 30 days
in payment of interest on the Securities; (ii) default in payment of principal
on the Securities at maturity, upon redemption pursuant to paragraph 5 of the
Securities, upon required repurchase, upon declaration or otherwise; (iii)
failure by the Company to comply with other agreements in the Indenture or the
Securities, in certain cases subject to notice and lapse of time; (iv) failure
to pay at final maturity (giving effect to any applicable grace period and any
extensions thereof) the principal amount of any Indebtedness of the Company or
any Restricted Subsidiary (other than a Receivables Entity) of the Company, or
the acceleration of the final maturity of any such Indebtedness, if the
aggregate principal amount of any such Indebtedness, together with the principal
amount of any such other Indebtedness in default for failure to pay principal at
final maturity or which has been accelerated, aggregates $10.0 million or more
at any time; (v) certain events of bankruptcy or insolvency with respect to the
Company or any Significant Subsidiary; (vi) certain final, non-appealable
judgments or decrees for the payment of money in excess of $10.0 million against
the Company or any Significant Subsidiary; and (vii) any Guarantee by a
Significant Subsidiary ceases to be in full force and effect (except as
contemplated by
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the terms of the Indenture) or any Subsidiary Guarantor that is a Significant
Subsidiary denies or disaffirms its obligations under the Indenture or its
Guarantee. If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Securities being
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default or Event of
Default (except a Default or Event of Default in payment of principal or
interest) if it determines that withholding notice is in their interest.
15. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations set forth in the Indenture, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its affiliates and may otherwise deal
with the Company or its affiliates with the same rights it would have if it were
not Trustee.
16. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
17. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent acting on its behalf) manually signs the
certificate of authentication on the other side of this Security.
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18. ABBREVIATIONS
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
19. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
20. GOVERNING LAW
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York but without giving effect to applicable
principles of conflicts of law to the extent that the application of the laws of
another jurisdiction would be required thereby.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture which has in it
the text of this Security in larger type. Requests may be made to: Safelite
Glass Corp., 1105 Schrock Road, Columbus, Ohio 43216, Attention: General
Counsel.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
---------------------------------------------------
---------------------------------------------------
---------------------------------------------------
(Print or type assignee's name, address and zip code)
---------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer
this Security on the books of the Company. The agent may
substitute another to act for him.
- --------------------------------------------------------------------------------
Date: ____________________ Your Signature: ___________________
Signature Guarantee: ______________________________
(Signature must be guaranteed)
Sign exactly as your name appears on the other side of this Security.
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
Amount of decrease Amount of increase Principal Amount of Signature of
in Principal Amount in Principal Amount this Global Security authorized officer
Date of of this Global of this Global following such of Trustee or
Exchange Security Security decrease or increase Securities Custodian
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.6 or 4.8 of the Indenture, check the box:
[ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.6 or 4.8 of the Indenture, state the amount in
principal amount (must be integral multiple of $1,000): $
Date: __________ Your Signature ____________________________
(Sign exactly as your name appears on the
other side of the Security)
Signature Guarantee: _______________________________________
(Signature must be guaranteed)
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EXHIBIT C
[FORM OF SUPPLEMENTAL INDENTURE]
SUPPLEMENTAL INDENTURE, dated as of __________ __, 199_, among
SAFELITE GLASS CORP., a Delaware corporation (the "Company"),[list additional
Subsidiary Guarantors], [NEW SUBSIDIARY GUARANTOR], a __________ corporation
(the "New Subsidiary Guarantor") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company, as trustee (the "Trustee") to the Indenture dated
as of December 18, 1998 (the "Indenture") among the Company and the Trustee.
WITNESSETH:
WHEREAS, Section 9.1 of the Indenture provides that the Company and
the Trustee may, among other things, amend this Indenture or the Securities
without notice to or consent of any Securityholder to add Guarantees with
respect to the Securities or to secure the Securities;
WHEREAS, Section 11.1 of the Indenture provides that any Restricted
Subsidiary of the Company that guarantees payment of the Bank Indebtedness must
execute and deliver to the Trustee this Supplemental Indenture pursuant to which
such Restricted Subsidiary shall agree to be bound by the provisions of Article
XI of the Indenture; and
WHEREAS, the New Subsidiary Guarantor has guaranteed payment of the
Bank Indebtedness and shall execute and deliver to the Trustee this Supplemental
Indenture.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINED TERMS. Capitalized terms used and not defined herein shall
have the meaning specified in or pursuant to the Indenture.
2. GUARANTEE. The New Subsidiary Guarantor hereby agrees to
unconditionally assume all the obligations of a Subsidiary Guarantor under the
Indenture as described therein.
3. TRUSTEE. The Trustee accepts the modification of the Indenture
effected by this Supplemental Indenture, but only upon the terms and conditions
set forth in the Indenture. Without limiting the generality of the foregoing,
the Trustee assumes no responsibility for the correctness of the recitals herein
contained, which shall be taken as the statements of the Company. The Trustee
makes no representation and shall have no responsibility as to the validity and
sufficiency of this Supplemental Indenture.
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4. EFFECT ON INDENTURE. As supplemented by this Supplemental
Indenture, the Indenture is hereby ratified and confirmed in all aspects.
5. COUNTERPARTS. This Supplemental Indenture may be executed in
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
6. GOVERNING LAW. This Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
[NEW SUBSIDIARY GUARANTORS]
By:
----------------------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By:
----------------------------------
Name:
Title: Corporate Trust Officer
SAFELITE GLASS CORP.
By:
----------------------------------
Name:
Title:
[SUBSIDIARY GUARANTORS]
By:
----------------------------------
Name:
Title: