Exhibit 99.1
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INDENTURE
Dated as of November 19, 2004
among
TENNECO AUTOMOTIVE INC.,
as Issuer,
TENNECO AUTOMOTIVE OPERATING COMPANY INC.,
THE PULLMAN COMPANY
CLEVITE INDUSTRIES INC.
TENNECO GLOBAL HOLDINGS INC.
TMC TEXAS INC.
TENNECO INTERNATIONAL HOLDING CORP.
as Guarantors,
and
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
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8 5/8% Senior Subordinated Notes due 2014, Series A
8 5/8% Senior Subordinated Notes due 2014, Series B
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1)................................................................................. 7.10
(a)(2).............................................................................. 7.10
(a)(3).............................................................................. N.A.
(a)(4).............................................................................. N.A.
(a)(5).............................................................................. 7.10
(b)................................................................................. 7.08; 7.10
(c)................................................................................. N.A.
311(a).................................................................................... 7.11
(b)................................................................................. 7.11
312(a).................................................................................... 2.05
(b)................................................................................. 11.03
(c)................................................................................. 11.03
313(a).................................................................................... 7.06
(b)(1).............................................................................. 7.06
(b)(2).............................................................................. 7.06; 7.07
(c)................................................................................. 7.05; 7.06; 11.02
(d)................................................................................. 7.06
314(a).................................................................................... 4.08; 4.10; 11.02
(b)................................................................................. N.A.
(c)(1).............................................................................. 4.08; 11.04
(c)(2).............................................................................. 11.04
(c)(3............................................................................... 4.08; 11.04
(d)................................................................................. N.A.
(e)................................................................................. 11.05
(f)................................................................................. N.A.
315(a).................................................................................... 7.01(b)
(b)................................................................................. 7.05; 11.02
(c)................................................................................. 7.01(a)
(d)................................................................................. 7.01(c)
(e)................................................................................. 6.11
316(a)(last sentence)..................................................................... 2.09
(a)(1)(A)........................................................................... 6.05
(a)(1)(B)........................................................................... 6.04
(a)(2).............................................................................. N.A.
(b)................................................................................. 6.07; 9.04
(c)................................................................................. 9.04
317(a)(1)................................................................................. 6.08
(a)(2).............................................................................. 6.09
(b)................................................................................. 2.04
318(a).................................................................................... 11.01
(c)................................................................................. 11.01
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"N.A." means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ........................................................................... 1
SECTION 1.02. Incorporation by Reference of TIA ..................................................... 34
SECTION 1.03. Rules of Construction ................................................................. 35
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating ....................................................................... 35
SECTION 2.02. Execution and Authentication .......................................................... 36
SECTION 2.03. Registrar and Paying Agent ............................................................ 37
SECTION 2.04. Paying Agent To Hold Assets in Trust .................................................. 38
SECTION 2.05. Securityholder Lists .................................................................. 38
SECTION 2.06. Transfer and Exchange ................................................................. 38
SECTION 2.07. Replacement Securities ................................................................ 39
SECTION 2.08. Outstanding Securities ................................................................ 39
SECTION 2.09. Treasury Securities ................................................................... 40
SECTION 2.10. Temporary Securities .................................................................. 40
SECTION 2.11. Cancellation .......................................................................... 40
SECTION 2.12. Defaulted Interest .................................................................... 40
SECTION 2.13. CUSIP Number .......................................................................... 41
SECTION 2.14. Deposit of Moneys ..................................................................... 41
SECTION 2.15. Book-Entry Provisions for Global Securities ........................................... 41
SECTION 2.16. Registration of Transfers and Exchanges ............................................... 42
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee .................................................................... 46
SECTION 3.02. Selection of Securities To Be Redeemed ................................................ 47
SECTION 3.03. Notice of Redemption .................................................................. 47
SECTION 3.04. Effect of Notice of Redemption ........................................................ 48
SECTION 3.05. Deposit of Redemption Price ........................................................... 48
SECTION 3.06. Securities Redeemed in Part ........................................................... 48
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ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities ................................................................. 49
SECTION 4.02. Maintenance of Office or Agency ....................................................... 49
SECTION 4.03. Limitation on Incurrence of Additional Indebtedness ................................... 49
SECTION 4.04. Limitation on Restricted Payments ..................................................... 50
SECTION 4.05. Corporate Existence ................................................................... 53
SECTION 4.06. Payment of Taxes and Other Claims ..................................................... 53
SECTION 4.07. Maintenance of Properties and Insurance ............................................... 53
SECTION 4.08. Compliance Certificate; Notice of Default ............................................. 54
SECTION 4.09. Compliance with Laws .................................................................. 55
SECTION 4.10. Reports to Holders .................................................................... 55
SECTION 4.11. Waiver of Stay, Extension or Usury Laws ............................................... 56
SECTION 4.12. Limitation on Asset Sales ............................................................. 56
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries 59
SECTION 4.14. Limitation on Issuances of Capital Stock of Restricted Subsidiaries ................... 61
SECTION 4.15. Limitation on Liens ................................................................... 61
SECTION 4.16. Prohibition on Incurrence of Senior Subordinated Debt ................................. 62
SECTION 4.17. Limitation on Transactions with Affiliates ............................................ 62
SECTION 4.18. Issuance of Subsidiary Guarantees ..................................................... 63
SECTION 4.19. Payments for Consent .................................................................. 65
SECTION 4.20. Limitation on Designations of Unrestricted Subsidiaries ............................... 65
SECTION 4.21. Change of Control ..................................................................... 67
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets .............................................. 69
SECTION 5.02. Successor Corporation Substituted ..................................................... 71
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default ..................................................................... 71
SECTION 6.02. Acceleration .......................................................................... 73
SECTION 6.03. Other Remedies ........................................................................ 74
SECTION 6.04. Waiver of Past Defaults ............................................................... 74
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SECTION 6.05. Control by Majority ................................................................... 75
SECTION 6.06. Limitation on Suits ................................................................... 75
SECTION 6.07. Rights of Holders To Receive Payment .................................................. 75
SECTION 6.08. Collection Suit by Trustee ............................................................ 76
SECTION 6.09. Trustee May File Proofs of Claim ...................................................... 76
SECTION 6.10. Priorities ............................................................................ 76
SECTION 6.11. Payment of Interest; Interest Rights Preserved ........................................ 77
SECTION 6.12. Undertaking for Costs ................................................................. 78
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee ..................................................................... 79
SECTION 7.02. Rights of Trustee ..................................................................... 80
SECTION 7.03. Individual Rights of Trustee .......................................................... 81
SECTION 7.04. Trustee's Disclaimer .................................................................. 81
SECTION 7.05. Notice of Default ..................................................................... 82
SECTION 7.06. Reports by Trustee to Holders ......................................................... 82
SECTION 7.07. Compensation and Indemnity ............................................................ 83
SECTION 7.08. Replacement of Trustee ................................................................ 84
SECTION 7.09. Successor Trustee by Merger, Etc ...................................................... 85
SECTION 7.10. Eligibility; Disqualification ......................................................... 85
SECTION 7.11. Preferential Collection of Claims Against Company ..................................... 85
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance .............................................. 85
SECTION 8.02. Satisfaction and Discharge ............................................................ 89
SECTION 8.03. Survival of Certain Obligations ....................................................... 90
SECTION 8.04. Acknowledgment of Discharge by Trustee ................................................ 90
SECTION 8.05. Application of Trust Assets ........................................................... 90
SECTION 8.06. Repayment to the Company or Guarantors; Unclaimed Money ............................... 91
SECTION 8.07. Reinstatement ......................................................................... 91
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders ............................................................ 92
SECTION 9.02. With Consent of Holders ............................................................... 92
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SECTION 9.03. Compliance with TIA ................................................................... 94
SECTION 9.04. Revocation and Effect of Consents ..................................................... 94
SECTION 9.05. Notation on or Exchange of Securities ................................................. 95
SECTION 9.06. Trustee To Sign Amendments, Etc ....................................................... 95
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee .............................................................. 95
SECTION 10.02. Severability ......................................................................... 96
SECTION 10.03. Release of a Guarantor ............................................................... 96
SECTION 10.04. Limitation of a Guarantor's Liability ................................................ 97
SECTION 10.05. Contribution ......................................................................... 97
SECTION 10.06. Waiver of Subrogation ................................................................ 98
SECTION 10.07. Execution of Subsidiary Guarantees ................................................... 98
SECTION 10.08. Waiver of Stay, Extension or Usury Laws .............................................. 99
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls ......................................................................... 99
SECTION 11.02. Notices .............................................................................. 99
SECTION 11.03. Communications by Holders with Other Holders ......................................... 100
SECTION 11.04. Certificate and Opinion as to Conditions Precedent ................................... 101
SECTION 11.05. Statements Required in Certificate or Opinion ........................................ 101
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar ............................................ 101
SECTION 11.07. Legal Holidays ....................................................................... 102
SECTION 11.08. Governing Law ........................................................................ 102
SECTION 11.09. No Adverse Interpretation of Other Agreements ........................................ 103
SECTION 11.10. No Recourse Against Others ........................................................... 103
SECTION 11.11. Successors ........................................................................... 103
SECTION 11.12. Duplicate Originals .................................................................. 103
SECTION 11.13. Severability ......................................................................... 103
SECTION 11.14. Table of Contents, Headings, Etc ..................................................... 103
ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior Debt; Guarantees
Subordinated to Guarantor Senior Debt ................................................ 104
SECTION 12.02. No Payment on Securities in Certain Circumstances .................................... 104
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SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc ....................................... 106
SECTION 12.04. Payments May Be Paid Prior to Dissolution ............................................ 107
SECTION 12.05. Subrogation .......................................................................... 108
SECTION 12.06. Obligations of the Company Unconditional ............................................. 108
SECTION 12.07. Notice to Trustee .................................................................... 109
SECTION 12.08. Reliance on Judicial Order or Certificate of Liquidating Agent ....................... 109
SECTION 12.09. Trustee's Relation to Senior Debt or Guarantor Senior Debt ........................... 110
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions of the Company or a
Guarantor or Holders of Senior Debt .................................................. 110
SECTION 12.11. Holders Authorize Trustee To Effectuate Subordination of Securities .................. 111
SECTION 12.12. This Article Twelve Not To Prevent Events of Default ................................. 111
SECTION 12.13. Trustee's Compensation Not Prejudiced ................................................ 111
Exhibit A - Form of Series A Security
Exhibit B - Form of Series B Security
Exhibit C - Form of Legend for Global Securities
Exhibit D - Transfer Certificate
Exhibit E - Transferee Certificate for Institutional Accredited Investors
Exhibit F - Transferee Certificate for Regulation S Transfers
Exhibit G - Form of Subsidiary Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE dated as of November 19, 2004, among TENNECO
AUTOMOTIVE INC., a Delaware corporation (the "Company"), as issuer, TENNECO
AUTOMOTIVE OPERATING COMPANY INC., THE PULLMAN COMPANY, CLEVITE INDUSTRIES INC.,
TENNECO GLOBAL HOLDINGS INC., TMC TEXAS INC., TENNECO INTERNATIONAL HOLDING
CORP. and such other subsidiaries of the Company, as shall from time to time
execute a Subsidiary Guarantee (as defined), and THE BANK OF NEW YORK TRUST
COMPANY, N.A., a national banking association, as Trustee (the "Trustee").
The Company has duly authorized the issue of 8 5/8% Senior
Subordinated Notes due 2014, Series A, and 8 5/8% Senior Subordinated Notes due
2014, Series B, and to provide therefor, the Company has duly authorized the
execution and delivery of this Indenture. All things necessary to make the
Securities, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid and binding obligations of the Company, and to
make this Indenture a valid and binding agreement of the Company, have been
done.
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Accounts Receivable Entity" means a Person, including,
without limitation, a Subsidiary of the Company, whose operations consist solely
of owning and/or selling accounts receivable of the Company and its Subsidiaries
and engaging in other activities in connection with transactions that are
Permitted Receivables Financings.
"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary or at the time it merges or consolidates with the Company or any of
the Restricted Subsidiaries or assumed by the Company or any Restricted
Subsidiary in connection with the acquisition of assets from such Person and in
each case not incurred by such Person in connection with, or in anticipation or
contemplation of, such Person becoming a Restricted Subsidiary or such
acquisition, merger or consolidation.
"Acquired Subsidiary" means a Person which becomes a
Restricted Subsidiary after the Issue Date; provided that such Person has
outstanding voting Capital Stock prior to becoming a Subsidiary of the Company
and a majority of such voting Capital Stock was owned by Persons other than the
Company and its Restricted Subsidiaries.
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"Additional Securities" means Series A Securities issued from
time to time after the Issue Date under the terms of this Indenture (other than
pursuant to Sections 2.06, 2.07, 2.10 or 3.06 of this Indenture).
"Adjusted Net Assets" has the meaning set forth in Section
10.05.
"Affiliate" means, with respect to any specified Person, any
other Person who directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Affiliate Transaction" has the meaning set forth in Section
4.17.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Acquisition" means (1) an Investment by the Company or
any Restricted Subsidiary in any other Person pursuant to which such Person
shall become a Restricted Subsidiary, or shall be merged with or into the
Company or any Restricted Subsidiary, or (2) the acquisition by the Company or
any Restricted Subsidiary of the assets of any Person (other than a Restricted
Subsidiary) which constitute all or substantially all of the assets of such
Person or comprise 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, lease (other than operating leases entered into in the ordinary
course of business), assignment or other transfer (other than the granting of a
Lien in accordance with this Indenture) for value by the Company or any of the
Restricted Subsidiaries (including any Sale and Leaseback Transaction) to any
Person other than the Company or a Restricted Subsidiary of (a) any Capital
Stock of any Restricted Subsidiary; or (b) any other property or assets of the
Company or any Restricted Subsidiary other than in the ordinary course of
business; provided, however, that Asset Sales shall not include:
(1) a transaction or series of related transactions for which
the Company or the Restricted Subsidiaries receive aggregate
consideration of less than $5 million;
(2) the sale, lease, conveyance, disposition or other transfer
of all or substantially all of the assets of the Company as permitted
by Section 5.01;
(3) any Restricted Payment made in accordance with Section
4.04; or
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(4) sales of accounts receivable and related assets pursuant
to a Permitted Receivables Financing made in accordance with Section
4.03.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal, state or foreign law for the relief of debtors.
"Blockage Period" has the meaning provided in Section 12.02.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Secretary or an Assistant Secretary of such
Person to have been duly adopted by the Board of Directors of such Person and to
be in full force and effect on the date of such certification, and delivered to
the Trustee.
"Business Day" means any day other than a Saturday, Sunday or
any other day on which banking institutions in The City of New York or in the
city in which the principal corporate trust office of the Trustee is located,
are required or authorized by law or other governmental action to be closed.
"Capital Stock" means (1) with respect to any Person that is a
corporation, any and all shares, interests, participation or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person, and (2) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligations" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means
(1) 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;
(2) 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
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of acquisition, having one of the two highest ratings obtainable from
either Standard & Poor's Corporation ("S&P") or Moody's Investors
Service, Inc. ("Moody's");
(3) 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-2 from S&P or at least P-2 from Moody's;
(4) demand and time deposit accounts, certificates of deposit
or bankers' acceptances maturing within one year from the date of
acquisition thereof issued by any bank organized under the laws of the
United States of America 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 $250
million;
(5) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clause (1)
above entered into with any bank meeting the qualifications specified
in clause (4) above;
(6) investments in money market funds which invest
substantially all their assets in securities of the types described in
clauses (1) through (5) above; and
(7) solely in respect of the ordinary course cash management
activities of the Foreign Subsidiaries, equivalents of the investments
described in clause (1) above to the extent guaranteed by any member
state of the European Union or the country in which the Foreign
Subsidiary operates and equivalents of the investments described in
clause (4) above issued, accepted or offered by any commercial bank
organized under the laws of a member state of the European Union or the
jurisdiction of organization of the applicable Foreign Subsidiary
having at the acquisition thereof combined capital and surplus of not
less than $250 million.
"Cash Management Obligations" means, with respect to any
Person, all obligations of such Person in respect of overdrafts and related
liabilities owed to any other Person that arise from treasury, depositary or
cash management services, including in connection with any automated clearing
house transfers of funds, or any similar transactions.
"Change of Control" means the occurrence of one or more of the
following events:
(1) 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 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);
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(2) 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);
(3) any Person or Group shall become the beneficial owner,
directly or indirectly, of shares representing more than 35% of the
aggregate ordinary voting power represented by the issued and
outstanding Capital Stock of the Company; or
(4) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of the
Company was approved pursuant to a vote of a majority of the directors
then still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office.
"Change of Control Offer" has the meaning set forth in Section
4.21.
"Change of Control Payment Date" has the meaning set forth in
Section 4.21.
"Combined EBITDA" means, with respect to the Restricted
Subsidiaries that are not Guarantors (and are not a Finance Subsidiary or an
Accounts Receivable Entity that is a Domestic Restricted Subsidiary) (the
"Combined Subsidiaries"), for any period, the sum (without duplication) of:
(1) Combined Net Income; and
(2) to the extent Combined Net Income has been reduced
thereby:
(A) all income taxes of the Combined Subsidiaries,
paid or accrued in accordance with GAAP for such period;
(B) Combined Interest Expense; and
(C) Combined Non-cash Charges;
less any non-cash items increasing Combined Net Income for such period, all as
determined on a combined basis for the Combined Subsidiaries in accordance with
GAAP.
"Combined Fixed Charge Coverage Ratio" means, with respect to
the Combined Subsidiaries the ratio of Combined EBITDA during the four full
fiscal quarters (the "Four Quarter Period") ending on or prior to the date of
the transaction giving rise to the need to calculate the Combined Fixed Charge
Coverage Ratio (the "Transaction Date") to Combined Fixed Charges for the Four
Quarter Period. In addition to and without limitation of the
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foregoing, for purposes of this definition, "Combined EBITDA" and "Combined
Fixed Charges" shall be calculated after giving effect on a pro forma basis for
the period of such calculation to
(1) the incurrence or repayment of any Indebtedness of any of
the Restricted Subsidiaries that are not Guarantors (and are not a
Finance Subsidiary or an Accounts Receivable Entity that is a Domestic
Restricted Subsidiary) (and the application of the proceeds thereof)
giving rise to the need to make such calculation and any incurrence or
repayment of other Indebtedness (and the application of the proceeds
thereof), other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes pursuant to
working capital facilities, occurring during the Four Quarter Period or
at any time subsequent to the last day of the Four Quarter Period and
on or prior to the Transaction Date, as if such incurrence or
repayment, as the case may be (and the application of the proceeds
thereof), occurred on the first day of the Four Quarter Period; and
(2) any Asset Sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of one of
the Restricted Subsidiaries that are not Guarantors (and are not a
Finance Subsidiary or an Accounts Receivable Entity that is a Domestic
Restricted Subsidiary) (including any Person who becomes such a
Restricted Subsidiary as a result of the Asset Acquisition) incurring,
assuming or otherwise being liable for Acquired Indebtedness and also
including any Combined EBITDA (provided that such Combined EBITDA shall
be included only to the extent includable pursuant to the definition of
"Combined Net Income") attributable to the assets which are the subject
of the Asset Acquisition or Asset Sale or other disposition during the
Four Quarter Period) occurring during the Four Quarter Period or at any
time subsequent to the last day of the Four Quarter Period and on or
prior to the Transaction Date as if such Asset Sale or Asset
Acquisition or other disposition (including the incurrence, assumption
or liability for any such Acquired Indebtedness) occurred on the first
day of the Four Quarter Period.
If any of the Restricted Subsidiaries that are not Guarantors
(and are not a Finance Subsidiary or Accounts Receivable Entity that is a
Domestic Restricted Subsidiary) directly or indirectly guarantees Indebtedness
of a third Person, the preceding sentence shall give effect to the incurrence of
such guaranteed Indebtedness as if the Restricted Subsidiary had directly
incurred or otherwise assumed such guaranteed Indebtedness. Furthermore, in
calculating "Combined Fixed Charges" for purposes of determining the denominator
(but not the numerator) of this "Combined 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
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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
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 in effect on the Transaction
Date resulting after giving effect to the operation of such agreements
on such date.
"Combined Fixed Charges" means, with respect to the Restricted
Subsidiaries that are not Guarantors (and are not a Finance Subsidiary or an
Accounts Receivable Entity that is a Domestic Restricted Subsidiary) for any
period, the sum, without duplication, of
(1) Combined Interest Expense, plus
(2) the product of (x) the amount of all dividend payments on
any series of Preferred Stock of the Restricted Subsidiaries that are
not Guarantors (other than Finance Subsidiaries and Accounts Receivable
Entities that are Domestic Restricted Subsidiaries) paid, accrued
and/or scheduled to be paid or accrued during such period multiplied by
(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 income tax rate of the Company, expressed as a decimal.
"Combined Interest Expense" means, with respect to the
Restricted Subsidiaries that are not Guarantors (and are not a Finance
Subsidiary or Accounts Receivable Entity that is a Domestic Restricted
Subsidiary) for any period, the sum of, without duplication,
(1) the aggregate of the interest expense of the Restricted
Subsidiaries that are not Guarantors (and are not a Finance Subsidiary
or Accounts Receivable Entity that is a Domestic Restricted Subsidiary)
for such period determined on a combined basis in accordance with GAAP,
including without limitation,
(A) any amortization of debt discount,
(B) the net costs under Interest Swap Obligations and
Attributable Debt,
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(C) all capitalized interest, and
(D) the interest portion of any deferred payment
obligation;
(2) the interest component of Capitalized Lease Obligations
accrued by the Restricted Subsidiaries that are not Guarantors (and are
not a Finance Subsidiary or Accounts Receivable Entity that is a
Domestic Restricted Subsidiary) during such period as determined on a
consolidated basis in accordance with GAAP; and
(3) net losses relating to sales of accounts receivable
pursuant to Permitted Receivables Financings during such period as
determined on a combined basis in accordance with GAAP;
provided that Combined Interest Expense shall not include any of the foregoing
to the extent owing to the Company or any Restricted Subsidiary or to the extent
owed by a Finance Subsidiary or an Accounts Receivable Entity that is a Domestic
Restricted Subsidiary.
"Combined Net Income" means, with respect to the Restricted
Subsidiaries that are not Guarantors (and are not Finance Subsidiaries or
Accounts Receivable Entities that are Domestic Restricted Subsidiaries), for any
period, the aggregate net income (or loss) of the Restricted Subsidiaries that
are not Guarantors (and are not Finance Subsidiaries or Accounts Receivable
Entities that are Domestic Restricted Subsidiaries) for such period as
determined on a combined basis in accordance with GAAP; provided that there
shall be excluded therefrom:
(1) after-tax gains and losses from Asset Sales or
abandonments or reserves relating thereto;
(2) extraordinary or non-recurring gains or losses (determined
on an after-tax basis);
(3) any non-cash compensation expense incurred for grants and
issuances of stock appreciation or similar rights, stock options,
restricted shares or other rights to officers, directors and employees
of the Company and its Subsidiaries (including any such grant or
issuance to a 401(k) or other retirement benefit plan);
(4) the net income of any Person, other than a Restricted
Subsidiary, except to the extent of cash dividends or distributions
paid to the Restricted Subsidiaries that are not Guarantors (and are
not Finance Subsidiaries or Accounts Receivable Entities that are
Domestic Restricted Subsidiaries) by such Person;
-9-
(5) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Combined Net Income accrued at any time following the Issue Date;
(6) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued)
from and after the date that such operation is classified as
discontinued;
(7) write-downs resulting from the impairment of intangible
assets;
(8) the amount of amortization or write-off deferred financing
costs and debt issuance costs of the Company and its Restricted
Subsidiaries during such period and any premium or penalty paid in
connection with redeeming or retiring Indebtedness of the Company and
its Restricted Subsidiaries prior to the stated maturity thereof
pursuant to the agreements governing such Indebtedness; and
(9) any restructuring charges incurred pursuant to any Genesis
Project or any related project disclosed as such in the Company's
audited financial statements prepared in accordance with GAAP, together
with any related provision for taxes, in an aggregate amount since the
date of the Indenture not to exceed $50.0 million.
"Combined Non-cash Charges" means, with respect to the
Restricted Subsidiaries that are not Guarantors (and are not Finance
Subsidiaries or Accounts Receivable Entities that are Domestic Restricted
Subsidiaries), for any period, the aggregate depreciation, amortization and
other non-cash expenses of the Restricted Subsidiaries that are not Guarantors
(and are not Finance Subsidiaries or Accounts Receivable Entities that are
Domestic Restricted Subsidiaries) reducing Combined Net Income for such period,
determined on a combined basis in accordance with GAAP (excluding any such
charge which requires an accrual of or a reserve for cash charges for any future
period).
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, or if at any time after the execution of this
Indenture such Commission is not existing and performing the applicable duties
now assigned to it, then the body or bodies performing such duties at such time.
"Commodity Agreement" means any commodity futures contract,
commodity option or other similar agreement or arrangement entered into by the
Company or any Restricted Subsidiary of the Company designed to protect the
Company or any of its Restricted Subsidiaries against fluctuations in the price
of the commodities at the time used in the ordinary course of business of the
Company or any of its Restricted Subsidiaries and not for speculative purposes.
-10-
"Common Stock" of any Person means any and all shares,
interests or other participations in, and other equivalents (however designated
and whether voting or non-voting) of such Person's common stock, whether
outstanding on the Issue Date or issued after the Issue Date, and includes,
without limitation, all series and classes of such common stock.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor.
"Consolidated EBITDA" means, with respect to the Company, for
any period, the sum (without duplication) of
(1) Consolidated Net Income; and
(2) to the extent Consolidated Net Income has been reduced
thereby:
(1) all income taxes of the Company and the
Restricted Subsidiaries paid or accrued in accordance with
GAAP for such period;
(2) Consolidated Interest Expense; and
(3) Consolidated Non-cash Charges,
less any non-cash items increasing Consolidated Net Income for such period, all
as determined on a consolidated basis for the Company and the Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect
to the Company, the ratio of Consolidated EBITDA of the Company during the Four
Quarter Period ending on or prior to the Transaction Date to Consolidated Fixed
Charges of the Company 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:
(1) the incurrence or repayment of any Indebtedness of the
Company or any of the Restricted Subsidiaries (and the application of
the proceeds thereof) giving rise to the need to make such calculation
and any incurrence or repayment of other Indebtedness (and the
application of the proceeds thereof), other than the incurrence or
repayment of Indebtedness in the ordinary course of business for
working capital purposes pursuant to working capital facilities,
occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment, as the case may
be (and the application of the proceeds thereof), occurred on the first
day of the Four Quarter Period; and
-11-
(2) any Asset Sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition
giving rise to the need to make such calculation as a result of the
Company or one of the 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 (provided that such
Consolidated EBITDA shall be included only to the extent includable
pursuant to the definition of "Consolidated Net Income") attributable
to the assets which are the subject of the Asset Acquisition or Asset
Sale or other disposition during the Four Quarter Period) occurring
during the Four Quarter Period or at any time subsequent to the last
day of the Four Quarter Period and on or prior to the Transaction Date
as if such Asset Sale or Asset Acquisition or other disposition
(including the incurrence, assumption or liability for any such
Acquired Indebtedness) occurred on the first day of the Four Quarter
Period.
If the Company or any of the 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 the
Company or any Restricted Subsidiary 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
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 in effect on the Transaction
Date resulting after giving effect to the operation of such agreements
on such date.
"Consolidated Fixed Charges" means, with respect to the
Company for any period, the sum, without duplication, of
(1) Consolidated Interest Expense, plus
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(2) the product of (x) the amount of all dividend payments on
any series of Preferred Stock of the Company (other than dividends paid
in Qualified Capital Stock) or any Restricted Subsidiary paid, accrued
and/or scheduled to be paid or accrued during such period times (y) a
fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated federal, state and
local income tax rate of the Company, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to the
Company for any period, the sum of, without duplication:
(1) the aggregate of the interest expense of the Company and
the Restricted Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without
limitation,
(A) any amortization of debt discount,
(B) the net costs under Interest Swap Obligations,
(C) all capitalized interest, and
(D) the interest portion of any deferred payment
obligation;
(2) the interest component of Capitalized Lease Obligations
accrued by the Company and the Restricted Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP;
and
(3) net losses relating to sales of accounts receivable
pursuant to Permitted Receivables Financings during such period as
determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to the Company,
for any period, the aggregate net income (or loss) of the Company and the
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP; provided that there shall be excluded therefrom:
(1) after-tax gains and losses from Asset Sales or
abandonments or reserves relating thereto;
(2) extraordinary or non-recurring gains or losses (determined
on an after-tax basis);
(3) any non-cash compensation expense incurred for grants and
issuances of stock appreciation or similar rights, stock options,
restricted shares or other rights to
-13-
officers, directors and employees of the Company and its Subsidiaries
(including any such grant or issuance to a 401(k) plan or other
retirement benefit plan);
(4) the net income (but not loss) of any Restricted Subsidiary
to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is
restricted by a contract, operation of law or otherwise;
(5) 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 to a Restricted Subsidiary by such Person;
(6) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
Consolidated Net Income accrued at any time following March 31, 2003;
(7) income or loss attributable to discontinued operations
(including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued)
from and after the date that such operation is classified as
discontinued;
(8) in the case of a successor to the Company by consolidation
or merger or as a transferee of the Company's assets, any earnings of
the successor corporation prior to such consolidation, merger or
transfer of assets;
(9) write-downs resulting from the impairment of intangible
assets;
(10) the amount of amortization or write-off of deferred
financing costs and debt issuance costs of the Company and its
Restricted Subsidiaries during such period and any premium or penalty
paid in connection with redeeming or retiring Indebtedness of the
Company and its Restricted Subsidiaries prior to the stated maturity
thereof pursuant to the agreements governing such Indebtedness; and
(11) any restructuring charges incurred pursuant to any
Genesis Project or any similar or related project disclosed as such in
the Company's audited financial statements prepared in accordance with
GAAP, together with any related provision for taxes, in an aggregate
amount since the date of this Indenture not to exceed $50.0 million.
"Consolidated Net Tangible Assets" means, as of any date of
determination, the total assets, less goodwill and other intangibles (other than
patents, trademarks, copyrights, licenses and other intellectual property),
shown on the balance sheet of the Company and its Restricted Subsidiaries for
the most recently ended fiscal quarter for which financial statements are
available, determined on a consolidated basis in accordance with GAAP.
-14-
"Consolidated Non-cash Charges" means, with respect to the
Company, for any period, the aggregate depreciation, amortization and other
non-cash expenses of the Company and the Restricted Subsidiaries reducing
Consolidated Net Income of the Company for such period, determined on a
consolidated basis in accordance with GAAP (excluding any such charge which
requires an accrual of or a reserve for cash charges for any future period).
"Corporate Trust Department" means the principal corporate
trust office of the Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the date of this
Indenture is located at 2 North LaSalle Street Suite 1020 Chicago, IL 60601.
"Covenant Defeasance" has the meaning set forth in Section
8.01.
"Credit Agreement" means the Amended and Restated Credit
Agreement, dated as of December 12, 2003, among the Company, the Guarantors, the
lenders party thereto in their capacities as lenders thereunder and JPMorgan
Chase Bank, as administrative agent, together with the documents related thereto
(including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be amended (including any
amendment and restatement thereof), supplemented or otherwise modified from time
to time in accordance with their terms (the "Existing Credit Agreement"),
including any agreement (a "Replacement Agreement") extending the maturity of,
refinancing, replacing or otherwise restructuring (including increasing the
amount of available borrowings thereunder (provided that such increase in
borrowings is permitted by Section 4.03 (including the definition of "Permitted
Indebtedness")) or adding Subsidiaries as additional borrowers or guarantors
thereunder) all or any portion of the Indebtedness under such agreement or any
successor or replacement agreement and whether by the same or any other agent
lender or group of lenders.
"Credit Facilities" means one or more debt facilities
(including the Credit Agreement) or commercial paper facilities providing for
revolving credit loans, term loans, receivables financing (including through the
sale of receivables to lenders or to special purpose entities formed to borrow
from lenders against such receivables) or letters of credit, or any debt
securities or other form of debt financing (including convertible or
exchangeable debt instruments), in each case, as amended, supplemented,
modified, extended, renewed, restated or refunded in whole or in part from time
to time.
"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 against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
-15-
"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.
"Default Notice" has the meaning set forth in Section 12.02.
"Defaulted Interest" has the meaning set forth in Section
6.11.
"Depository" means, with respect to the Securities issued in
the form of one or more Global Securities, The Depository Trust Company or
another Person designated as Depository by the Company, which must be a clearing
agency registered under the Exchange Act.
"Designated Senior Debt" means (1) Indebtedness under or in
respect of the Credit Agreement (so long as such Indebtedness constitutes Senior
Debt); provided, that Indebtedness under any Replacement Agreement will
constitute Designated Senior Debt only if permitted under the terms of the
Existing Credit Agreement (if the Existing Credit Agreement is then in effect),
(2) Indebtedness under the Senior Secured Notes, (and any Indebtedness that is
Refinancing Indebtedness of the Senior Secured Notes so long as such
Indebtedness is Senior Debt); and (3) any other Indebtedness constituting Senior
Debt which, at the time of determination, has an aggregate principal amount of
at least $50 million and is specifically designated in the instrument evidencing
such Senior Debt as "Designated Senior Debt" by the Company.
"Designation" has the meaning set forth in Section 4.20.
"Designation Amount" has the meaning set forth in Section
4.20.
"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, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is mandatorily exchangeable for Indebtedness, or is
redeemable or exchangeable for Indebtedness, at the sole option of the holder
thereof on or prior to the final maturity date of the Securities.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
incorporated or otherwise organized under the laws of the United States or any
state thereof or the District of Columbia.
"DTC" means The Depository Trust Company or any successor
thereto.
"Equity Offering" has the meaning set forth in Paragraph 6 of
the Securities.
"Event of Default" has the meaning provided in Section 6.01.
-16-
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto, and the rules and
regulations of the Commission promulgated thereunder.
"Fair Market Value" means, 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
transaction. 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
Board Resolution of the Board of Directors of the Company.
"Final Maturity Date" means November 15, 2014.
"Finance Subsidiary" means a Restricted Subsidiary that is
organized solely for the purpose of owning Indebtedness of the Company and/or
other Restricted Subsidiaries and issuing securities the proceeds of which are
utilized by the Company and/or other Restricted Subsidiaries, and which engages
only in such activities and activities incident thereto.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary that is organized and existing under the laws of a jurisdiction other
than the United States, any State thereof or the District of Columbia.
"Foreign Subsidiary" means any Subsidiary that is organized
and existing under the laws of a jurisdiction other than the United States, any
State thereof or the District of Columbia.
"Four Quarter Period" has the meaning provided in the
definition of "Combined Fixed Charge Coverage Ratio" above.
"Funding Guarantor" has the meaning provided in Section 10.05.
"GAAP" means generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect as of the
Issue Date.
"Global Security" means a security evidencing all or a part of
the Securities issued to the Depository in accordance with Section 2.01 and
bearing the legend prescribed in Exhibit C.
"Guarantee" has the meaning set forth in Section 4.18.
-17-
"Guaranteed Indebtedness" has the meaning set forth in Section
4.18.
"Guarantor" means (1) each Wholly Owned Domestic Restricted
Subsidiary of the Company (other than any Immaterial Domestic Subsidiaries,
Accounts Receivable Entities and Finance Subsidiaries) as of the Issue Date and
(2) each other Restricted Subsidiary that in the future is required to or
executes a Subsidiary Guarantee pursuant to Section 4.18 or otherwise; provided
that any Person constituting a Guarantor as described above shall cease to
constitute a Guarantor when its Subsidiary Guarantee is released in accordance
with the terms of this Indenture.
"Guarantor Senior Debt" means, with respect to any Guarantor,
the principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of such Guarantor,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Guarantee of such Guarantor. Without limiting the generality of
the foregoing, "Guarantor Senior Debt" shall also include the principal of,
premium, if any, interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the documentation
with respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of:
(w) all monetary obligations of every nature of the Company or
any Guarantor with respect to the Credit Agreement, including, without
limitation, obligations to pay principal and interest, reimbursement
obligations under letters of credit, fees, expenses and indemnities;
(x) all monetary obligations of every nature of the Company or
any Guarantor with respect to the Senior Secured Notes, including,
without limitation, obligations to pay principal and interest,
reimbursement obligations under letters of credit, fees, expenses and
indemnities;
(y) all Interest Swap Obligations; and
(z) all obligations under Commodity Agreements and
Currency Agreements.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall
not include:
(1) any Indebtedness of such Guarantor owing to a Subsidiary
of such Guarantor or any Affiliate of such Guarantor or any of such
Affiliate's Subsidiaries;
-18-
(2) Indebtedness to, or guaranteed on behalf of, any
shareholder, director, officer or employee of such Guarantor or any
Subsidiary of such Guarantor (including, without limitation, amounts
owed for compensation);
(3) Indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services;
(4) Indebtedness represented by Disqualified Capital Stock;
(5) any liability for federal, state, local or other taxes
owed or owing by such Guarantor;
(6) Indebtedness incurred in violation of Section 4.03;
(7) Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of Title 11, United States Code, is
without recourse to such Guarantor; and
(8) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of such
Guarantor.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person in respect of (a) interest rate or currency swap
agreements, interest rate or currency cap agreements, interest rate or currency
collar agreements or (b) other agreements or arrangements designed to protect
such Person against fluctuations in interest rates and/or currency exchange
rates.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered on the Registrar's books.
"Immaterial Domestic Subsidiaries" means at any time, any
Domestic Restricted Subsidiary of the Company having total assets (as determined
in accordance with GAAP) in an amount of less than 1% of the consolidated total
assets of the Company and its Domestic Restricted Subsidiaries (as determined in
accordance with GAAP); provided, however, that the total assets (as so
determined) of all Immaterial Domestic Subsidiaries shall not exceed 5% of
consolidated total assets of the Company and its Domestic Restricted
Subsidiaries (as so determined). In the event that the total assets of all
Immaterial Domestic Subsidiaries exceed 5% of consolidated total assets of the
Company and its Domestic Restricted Subsidiaries, the Company will designate
Domestic Restricted Subsidiaries that would otherwise be Immaterial Domestic
Subsidiaries to be excluded as Immaterial Domestic Subsidiaries until such 5%
threshold is met. Notwithstanding the foregoing, no Domestic Restricted
Subsidiary that guarantees the Credit Agreement or any Credit Agreement
Obligation shall be deemed an Immaterial Domestic Subsidiary.
-19-
"incur" has the meaning provided in Section 4.03.
"Indebtedness" means, with respect to any Person, without
duplication:
(1) all Obligations of such Person for borrowed money;
(2) all Obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(3) all Capitalized Lease Obligations of such Person;
(4) all Obligations of such Person issued or assumed as the
deferred purchase price of property, all conditional sale obligations
and all Obligations under any title retention agreement (but excluding
trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or
are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted);
(5) all Obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit
transaction;
(6) guarantees and other contingent obligations in respect of
Indebtedness of any other Person referred to in clauses (1) through (5)
above and clauses (8) and (10) below;
(7) all Obligations of any other Person of the type referred
to in clauses (1) through (6) which are secured by any Lien on any
property or asset of such Person, the amount of such Obligation being
deemed to be the lesser of the Fair Market Value of such property or
asset or the amount of the Obligation so secured;
(8) all Obligations under currency agreements and interest
swap agreements of such Person;
(9) all Disqualified Capital Stock of the Company and all
Preferred Stock of a Restricted Subsidiary with the amount of
Indebtedness represented by such Disqualified Capital Stock or
Preferred Stock being equal to the greater of its voluntary or
involuntary liquidation preference and its maximum fixed repurchase
price, but excluding accrued and unpaid dividends, if any; and
(10) all Outstanding Permitted Receivables Financings.
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock or Preferred Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock or Preferred Stock
-20-
as if such Disqualified Capital Stock or Preferred 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 or Preferred 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 or Preferred Stock.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof.
"Independent" when used with respect to any specified Person
means such a Person who (a) is in fact independent; (b) does not have any direct
financial interest or any material indirect financial interest in the Company or
any of its Subsidiaries, or in any Affiliate of the Company or any of its
Subsidiaries; and (c) is not an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions for the
Company or any of its Subsidiaries. Whenever it is provided in this Indenture
that any Independent Person's opinion or certificate shall be furnished to the
Trustee, such Person shall be appointed by the Company, and such opinion or
certificate shall state that the signer has read this definition and that the
signer is Independent within the meaning hereof.
"Independent Financial Advisor" means a firm (1) which does
not, and whose directors, officers and employees and Affiliates do not, have a
direct or indirect material financial interest in the Company and (2) which, in
the judgment of the Board of Directors of the Company, is otherwise independent
and qualified to perform the task for which it is to be engaged.
"Initial Purchasers" means (i) with respect to the Securities
issued on the Issue Date, Banc of America Securities LLC, Citigroup Global
Markets Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities Inc. and BNY
Capital Markets, Inc. and (ii) with respect to each issuance of additional
notes, if any, the Persons purchasing securities from the Company pursuant to
the related Purchase Agreement.
"Insolvency or Liquidation Proceeding" means, with respect to
any Person, (a) any voluntary or involuntary case or proceeding under any
Bankruptcy Law, (b) any other voluntary or involuntary insolvency,
reorganization or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding with respect to
such Person or with respect to any of its assets, (c) any liquidation,
dissolution, reorganization or winding up of such Person whether voluntary or
involuntary and whether or not involving insolvency or bankruptcy or (d) any
assignment for the benefit of creditors or any other marshaling of assets and
liabilities of such Person.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
-21-
"Interest Payment Date" means the stated maturity of an
installment of interest on the Securities.
"Interest Swap Obligations" means the obligations of the
Company and the Restricted Subsidiaries pursuant to any arrangement with any
other Person, whereby, directly or indirectly, the Company or any Restricted
Subsidiary 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 and
shall include, without limitation, interest rate lock obligations, interest rate
swaps, caps, floors, collars and similar agreements.
"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 other Person. "Investment" shall exclude extensions of trade
credit by the Company and the Restricted Subsidiaries on commercially reasonable
terms in accordance with normal trade practices of the Company or such
Restricted Subsidiaries, as the case may be. If the Company or any Restricted
Subsidiary sells or otherwise disposes of any Capital Stock of any Restricted
Subsidiary (the "Referent Subsidiary") such that, after giving effect to any
such sale or disposition, the Referent Subsidiary shall cease to be a 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 Capital
Stock of the Referent Subsidiary not sold or disposed of.
"Issue Date" means the date of original issuance of the
Securities.
"Legal Defeasance" has the meaning set forth in Section 8.01.
"Lien" means any lien, mortgage, deed of trust, deed to secure
debt, 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).
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds in the form of cash or Cash Equivalents, including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest), received by the Company or any of the Restricted Subsidiaries from
such Asset Sale net of:
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(1) reasonable out-of-pocket expenses and fees relating to
such Asset Sale (including, without limitation, legal, accounting and
investment banking fees, sales commissions and relocation expenses);
(2) 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;
(3) repayments of Indebtedness secured by the property or
assets subject to such Asset Sale that is required to be repaid in
connection with such Asset Sale; and
(4) appropriate amounts to be determined by the Company or any
Restricted Subsidiary, as the case may be, as a reserve, in accordance
with GAAP, against any liabilities associated with such Asset Sale and
retained by the Company or any Restricted Subsidiary, as the case may
be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale.
"Net Proceeds Offer" has the meaning set forth in Section
4.12.
"Net Proceeds Offer Amount" has the meaning set forth in
Section 4.12.
"Net Proceeds Offer Payment Date" has the meaning set forth in
Section 4.12.
"Net Proceeds Offer Trigger Date" has the meaning set forth in
Section 4.12.
"New York Presenting Agent" has the meaning set forth in
Section 2.03.
"Obligations" means any and all obligations with respect to
the payment of (a) any principal of or interest (including interest accruing on
or after the commencement of any Insolvency or Liquidation Proceedings, whether
or not a claim for post-filing interest is allowed in such proceeding) or
premium on any Indebtedness, including any reimbursement obligation in respect
of any letter of credit, (b) any fees, indemnification obligations, damages,
expense reimbursement obligations or other liabilities payable under the
documentation governing any Indebtedness, (c) any obligation to post cash
collateral in respect of letters of credit and any other obligations and (d) any
Cash Management Obligations or Hedging Obligations.
"Offering Memorandum" means the offering memorandum of the
Company dated November 9, 2004 related to the Securities.
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"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, any Vice President and
the Chief Financial Officer of such Person.
"Officers' Certificate" means a certificate signed by an
Officer of the Company and another Officer or the secretary, treasurer or
controller of the Company.
"Offshore Physical Securities" has the meaning provided in
Section 2.01.
"Opinion of Counsel" means a written opinion from legal
counsel which is and who are acceptable to the Trustee.
"Outstanding Permitted Receivables Financings" means the
aggregate amount of the receivables sold or financed pursuant to a Permitted
Receivables Financing that remain uncollected at any one time.
"Participants" has the meaning provided in Section 2.15.
"Paying Agent" has the meaning provided in Section 2.03.
"Payment Default" has the meaning provided in Section 6.01.
"Permitted Indebtedness" means, without duplication, each of
the following:
(1) Indebtedness under the Securities, this Indenture and any
Subsidiary Guarantees outstanding on the Issue Date;
(2) Indebtedness incurred pursuant to the Credit Agreement
(or, in the case of clause (2)(x) below, pursuant to a Credit Facility)
in an aggregate principal amount at any time outstanding not to exceed
the greater of:
(x) $1,000 (reduced by any required permanent
repayments with the proceeds of Asset Sales (which are
accompanied by a corresponding permanent commitment reduction)
thereunder); and
(y) the sum of (A) 85% of the net book value of the
accounts receivable of the Company and the Restricted
Subsidiaries and (B) 50% of the net book value of the
inventory of the Company and the Restricted Subsidiaries;
(3) other Indebtedness of the Company and the Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually
paid or permanent reductions are made thereon;
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(4) Interest Swap Obligations of the Company covering
Indebtedness of the Company or any Guarantor and Interest Swap
Obligations of any Restricted Subsidiary covering Indebtedness of such
Restricted Subsidiary; provided, however, that such Interest Swap
Obligations are entered into to protect the Company and the Restricted
Subsidiaries from fluctuations in interest rates on Indebtedness
incurred in accordance with this Indenture to the extent the notional
principal amount of such Interest Swap Obligations does not exceed the
principal amount of the Indebtedness to which such Interest Swap
Obligations relate;
(5) Indebtedness under Currency Agreements and Commodity
Agreements, provided that in the case of Currency Agreements which
relate to Indebtedness, such Currency Agreements do not increase the
Indebtedness of the Company and the Restricted Subsidiaries outstanding
other than as a result of fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable
thereunder;
(6) Indebtedness of a Restricted Subsidiary of the Company to
the Company or to a Restricted Subsidiary of the Company for so long as
such Indebtedness is held by the Company, a Restricted Subsidiary of
the Company or the lenders or collateral agent under any agreement
governing Senior Debt, in each case subject to no Lien held by a Person
other than the Company, a Restricted Subsidiary of the Company or the
lenders or collateral agent under any agreement governing Senior Debt;
provided that if as of any date any Person other than the Company, a
Restricted Subsidiary of the Company or the lenders or collateral agent
under any agreement governing Senior Debt owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness, such date
shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness under this clause (6) by the issuer of such
Indebtedness;
(7) Indebtedness of the Company to a Restricted Subsidiary of
the Company for so long as such Indebtedness is held by a Restricted
Subsidiary of the Company or the lenders or the collateral agent under
any agreement governing Senior Debt and is subject to no Lien other
than a Lien in favor of the lenders or collateral agent under any
agreement governing Senior Debt; provided that (a) any Indebtedness of
the Company to any Restricted Subsidiary of the Company is unsecured
and, except in the case of Indebtedness owed to Foreign Subsidiaries,
subordinated, pursuant to a written agreement to the Company's
obligations under this Indenture and the Securities and (b) if as of
any date any Person other than a Restricted Subsidiary of the Company
owns or holds any such Indebtedness or any Person holds a Lien other
than a Lien in favor of the lenders or collateral agent under any
agreement governing Senior Debt, such date shall be deemed the
incurrence of Indebtedness not constituting Permitted Indebtedness
under this clause (7) by the Company;
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(8) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently (except in the case of daylight overdrafts) drawn against
insufficient funds in the ordinary course of business; provided,
however, that such Indebtedness is extinguished within five Business
Days after incurrence;
(9) Indebtedness of the Company or any of the Restricted
Subsidiaries represented by letters of credit for the account of the
Company or any such Restricted Subsidiary, as the case may be, in order
to provide security for workers' compensation claims, payment
obligations in connection with self-insurance or similar requirements
in the ordinary course of business;
(10) Refinancing Indebtedness;
(11) additional Indebtedness of the Company and the Restricted
Subsidiaries in an aggregate principal amount not to exceed $75.0
million at any one time outstanding;
(12) additional Indebtedness of Foreign Subsidiaries of the
Company under working capital facilities in an aggregate principal
amount not to exceed $75.0 million at any one time outstanding;
(13) Purchase Money Indebtedness and Capitalized Lease
Obligations (and any Indebtedness incurred to Refinance such Purchase
Money Indebtedness or Capitalized Lease Obligations) not to exceed 5%
of Consolidated Net Tangible Assets at any one time outstanding; and
(14) Outstanding Permitted Receivables Financings not to
exceed $250.0 million at any one time outstanding.
If any Indebtedness incurred by the Company or any Restricted
Subsidiary would qualify in more than one of the categories of Permitted
Indebtedness as set forth in clauses (1) through (14) of this definition, the
Company may designate under which category such incurrence shall be deemed to
have been made.
"Permitted Investments" means
(1) Investments by the Company or any Restricted Subsidiary in
any Person that is or will become immediately after such Investment a
Restricted Subsidiary or that will merge or consolidate into the
Company or a Restricted Subsidiary;
(2) Investments in the Company by any Restricted Subsidiary;
provided that any Indebtedness evidencing such Investment is unsecured;
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(3) Investments in cash and Cash Equivalents;
(4) loans and advances to employees, officers and directors of
the Company and the Restricted Subsidiaries in the ordinary course of
business for bona fide business purposes not in excess of an aggregate
of $15.0 million at any one time outstanding;
(5) Commodity Agreements, Currency Agreements and Interest
Swap Obligations entered into in the ordinary course of the Company's
or a Restricted Subsidiary's businesses and otherwise in compliance
with this Indenture;
(6) 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
in settlement of delinquent accounts;
(7) Investments made by the Company or the Restricted
Subsidiaries as a result of consideration received in connection with
an Asset Sale made in compliance with Section 4.12;
(8) Investments in Persons, including, without limitation,
Unrestricted Subsidiaries and joint ventures, engaged in a business
similar or related to or logical extensions of the businesses in which
the Company and the Restricted Subsidiaries are engaged on the Issue
Date, not to exceed 5% of Consolidated Net Tangible Assets at any one
time outstanding; and
(9) Investments in an Accounts Receivable Entity.
"Permitted Liens" means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or
claims either (A) not delinquent or (B) contested in good faith by
appropriate proceedings and, in each case, as to which the Company or
any Restricted Subsidiary shall have set aside on its books such
reserves as may be required pursuant to GAAP;
(2) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other
Liens imposed by law incurred in the ordinary course of business for
sums not yet delinquent or being contested in good faith, if such
reserve or other appropriate provision, if any, as shall be required by
GAAP shall have been made in respect thereof;
(3) 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
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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, contracts,
performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(4) judgment Liens not giving rise to an Event of Default so
long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such
judgment shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(5) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not
impairing in any material respect the ordinary conduct of the business
of the Company or any of the Restricted Subsidiaries;
(6) any interest or title of a lessor under any Capitalized
Lease Obligation; provided that such Liens do not extend to any
property or asset which is not leased property subject to such
Capitalized Lease Obligation;
(7) purchase money Liens securing Indebtedness incurred to
finance property or assets of the Company or any Restricted Subsidiary
acquired in the ordinary course of business, and Liens securing
Indebtedness which Refinances any such Indebtedness; provided, however,
that (A) the related Purchase Money Indebtedness (or Refinancing
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 other than the property and assets so acquired
and (B) the Lien securing the purchase money Indebtedness shall be
created within 90 days after such acquisition;
(8) 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;
(9) 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;
(10) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual or warranty
requirements of the Company or any of the Restricted Subsidiaries,
including rights of offset and set-off;
(11) Liens securing Interest Swap Obligations which Interest
Swap Obligations relate to Indebtedness that is otherwise permitted
under this Indenture;
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(12) Liens securing Indebtedness and other Obligations under
Commodity Agreements, Currency Agreements and Cash Management
Obligations, in each case permitted under this Indenture;
(13) Liens securing Acquired Indebtedness (and any
Indebtedness which Refinances such Acquired Indebtedness) incurred in
accordance with Section 4.03; provided that (A) such Liens secured the
Acquired Indebtedness at the time of and prior to the incurrence of
such Acquired Indebtedness by the Company or a Restricted Subsidiary
and were not granted in connection with, or in anticipation of the
incurrence of such Acquired Indebtedness by the Company or a Restricted
Subsidiary and (B) such Liens do not extend to or cover any property or
assets of the Company or of any of the 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;
(14) Liens securing Indebtedness of Foreign Restricted
Subsidiaries incurred in accordance with this Indenture; provided that
such Liens do not extend to any property or assets other than property
or assets of Foreign Restricted Subsidiaries; and
(15) Liens incurred in connection with a Permitted Receivables
Financing.
"Permitted Receivables Financing" means any sale by the
Company or a Restricted Subsidiary of accounts receivable and related assets
intended to be (and which shall be treated for purposes of this Indenture as) a
true sale transaction with customary limited recourse based upon the
collectibility of the receivables sold and the corresponding sale or pledge of
such accounts receivable (or an interest therein) in each case without any
guarantee by the Company or any Restricted Subsidiary other than an Accounts
Receivable Entity.
"Person" means an individual, partnership, corporation,
unincorporated organization, trust or joint venture, or a governmental agency or
political subdivision thereof.
"Physical Securities" has the meaning provided in Section
2.01.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other Capital Stock of such
Person with respect to dividends or redemptions or upon liquidation.
"Private Placement Legend" means the legend initially set
forth on the Securities in the form set forth on Exhibit A.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms of this Indenture, a calculation in
accordance with Article 11 of
-29-
Regulation S-X under the Securities Act as interpreted by the Company's Board of
Directors in consultation with its Independent certified public accountants.
"Purchase Agreement" means (1) with respect to the Securities
issued on the Issue Date, the Purchase Agreement, dated as of November 9, 2004,
by and among the Company, the Guarantors and the Initial Purchasers, and (2)
with respect to each issuance of Additional Securities, if any, the purchase
agreement or underwriting agreement among the Company, the Guarantors and the
Initial Purchasers.
"Purchase Money Indebtedness" means Indebtedness of the
Company or any Restricted Subsidiary incurred for the purpose of financing all
or any part of the purchase price or the cost of an Asset Acquisition or
construction or improvement of any property; provided that the aggregate
principal amount of such Indebtedness does not exceed such purchase price or
cost.
"Qualified Capital Stock" means any Capital Stock that is not
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the
Securities; provided that if any such date is not a Business Day, the Record
Date shall be the first day immediately preceding such specified day that is a
Business Day.
"Redemption Date," when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"Redemption Price," when used with respect to any Security to
be redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Securities.
"Reference Date" has the meaning set forth in Section 4.04.
"Refinance" means in respect of any security or Indebtedness,
to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire,
or to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the
Company or any Restricted Subsidiary of Indebtedness incurred in accordance with
Section 4.03 (other than pursuant to clause (2), (4), (5), (6), (7), (8), (9),
(11), (12), (13) or (14) of the definition of "Permitted Indebtedness"), in each
case that does not:
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(1) result in an increase in the aggregate principal amount of
any Indebtedness of such Person as of the date of such proposed
Refinancing (plus the amount of any premium reasonably necessary to
Refinance such Indebtedness and plus the amount of reasonable expenses
incurred by the Company in connection with such Refinancing); or
(2) create Indebtedness with (A) a Weighted Average Life to
Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the
final maturity of the Indebtedness being Refinanced;
provided that if such Indebtedness being Refinanced is Indebtedness of the
Company and/or a Guarantor, then such Refinancing Indebtedness shall be
Indebtedness solely of the Company and/or such Guarantor.
"Registrar" has the meaning provided in Section 2.03.
"Registration Rights Agreement" means (1) with respect to the
Securities issued on the Issue Date, the Registration Rights Agreement, dated
November 19, 2004, among the Company, the Guarantors and the Initial Purchasers,
and (2) with respect to each issuance of Additional Securities issued in a
transaction exempt from the registration requirements of the Securities Act, the
registration rights agreement, if any, among the Company, the Guarantors and the
Initial Purchasers under the related Purchase Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Replacement Assets" means assets and property that will be
used in the business of the Company and/or its Restricted Subsidiaries as
existing on the Issue Date or in a business the same, similar or reasonably
related thereto (including Capital Stock of a Person which becomes a Restricted
Subsidiary).
"Representative" means the indenture trustee or other trustee,
agent or representative in respect of any Designated Senior Debt; provided that
if, and for so long as, any Designated Senior Debt lacks such a representative,
then the Representative for such Designated Senior Debt shall at all times
constitute the holders of a majority in outstanding principal amount of such
Designated Senior Debt in respect of any Designated Senior Debt.
"Responsible Officer" shall mean, when used with respect to
the Trustee (in all capacities appointed hereunder), any officer in the
Corporate Trust Department of the Trustee including any vice president,
assistant vice president or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, and to whom any corporate trust matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
-31-
"Restricted Payment" has the meaning set forth in Section
4.04.
"Restricted Security" has the meaning set forth in Rule
144(a)(3) under the Securities Act; provided that the Trustee shall be entitled
to request and conclusively rely upon an Opinion of Counsel with respect to
whether any Security is a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company
that has not been designated by the Board of Directors of the Company, by a
Board Resolution delivered to the Trustee, as an Unrestricted Subsidiary
pursuant to and in compliance with Section 4.20. Any such Designation may be
revoked by a Board Resolution of the Company delivered to the Trustee, subject
to the provisions of such covenant.
"Revocation" has the meaning set forth in Section 4.20.
"Rule 144A" means Rule 144A under the Securities Act.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced on the security of such Property.
"Securities" means the Series A Securities and the Series B
Securities treated as a single class of securities, as amended or supplemented
from time to time in accordance with the terms hereof, that are issued pursuant
to this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute or statutes thereto, and the rules and regulations of
the Commission promulgated thereunder.
"Senior Debt" means the principal of, premium, if any, and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under applicable law)
on any Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the notes. Without limiting the generality
of the foregoing, "Senior Debt" shall also include the principal of, premium, if
any, interest (including any interest accruing subsequent to the filing of a
petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of:
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(w) all monetary obligations of every nature of the Company
under the Credit Agreement, including, without limitation, obligations
to pay principal and interest, reimbursement obligations under letters
of credit, fees, expenses and indemnities;
(x) all monetary obligations of every nature of the Company
under the Senior Secured Notes, including, without limitation,
obligations to pay principal and interest, reimbursement obligations
under letters of credit, fees, expenses and indemnities;
(y) all Interest Swap Obligations; and
(z) all obligations under Commodity Agreements and Currency
Agreements.
Notwithstanding the foregoing, "Senior Debt" shall not
include:
(1) any Indebtedness of the Company to a Restricted Subsidiary
or any Affiliate of the Company or any of such Affiliate's
Subsidiaries;
(2) Indebtedness to, or guaranteed on behalf of, any
shareholder, director, officer or employee of the Company or any
Restricted Subsidiary (including without limitation, amounts owed for
compensation);
(3) Indebtedness to trade creditors and other amounts incurred
in connection with obtaining goods, materials or services;
(4) Indebtedness represented by Disqualified Capital Stock;
(5) any liability for federal, state, local or other taxes
owed by the Company;
(6) Indebtedness incurred in violation of Section 4.03;
(7) Indebtedness which, when incurred and without respect to
any election under Section 1111(b) of Title 11, United States Code, is
without recourse to the Company; and
(8) any Indebtedness which is, by its express terms,
subordinated in right of payment to any other Indebtedness of the
Company.
"Senior Secured Notes" means the Company's 10-1/4% Senior
Secured Notes due 2013 issued from time to time under that certain indenture
dated as of June 19, 2003 with Wachovia Bank, National Association as trustee.
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"Series A Securities" means the 8 5/8% Senior Subordinated
Notes due 2014, Series A, of the Company issued pursuant to this Indenture and
sold pursuant to the Purchase Agreement.
"Series B Securities" means the 8 5/8% Senior Subordinated
Notes due 2014, Series B, of the Company to be issued in exchange for the Series
A Securities pursuant to this Indenture and the Registration Rights Agreement.
"Significant Subsidiary" means, with respect to any Person,
any Restricted Subsidiary of such Person that satisfies the criteria for a
"significant subsidiary" set forth in Rule 1.02(w) of Regulation S-X under the
Securities Act.
"Special Record Date" has the meaning set forth in Section
6.11.
"Subsidiary," with respect to any Person, means (1) 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 (2) 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 Guarantee" has the meaning set forth in Section
4.18 and also includes any Guarantee of an initial Guarantor under Article Ten
of this Indenture.
"Surviving Entity" has the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as amended, as in effect on the date of the
execution of this Indenture until such time as this Indenture is qualified under
the TIA, and thereafter as in effect on the date on which this Indenture is
qualified under the TIA, except as otherwise provided in Section 9.03.
"Transaction Date" has the meaning set forth in the definition
of Combined Fixed Charge Coverage Ratio.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company
designated as such pursuant to and in compliance with Section 4.20. Any such
designation may be revoked by a Board Resolution of the Company delivered to the
Trustee, subject to the provisions of such covenant.
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"U.S. Government Obligations" shall have the meaning provided
in Section 8.01.
"U.S. Legal Tender" means such coin or currency in immediately
available funds of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts.
"U.S. Physical Securities" shall have the meaning set forth in
Section 2.01.
"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 Domestic Restricted Subsidiary" means a Wholly
Owned Restricted Subsidiary that is also a Domestic Restricted Subsidiary.
"Wholly Owned Restricted Subsidiary" of the Company means any
Restricted Subsidiary of which all the outstanding voting securities (other than
in the case of a Foreign Restricted Subsidiary, directors' qualifying shares or
an immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by the Company or any other Wholly Owned Restricted
Subsidiary.
SECTION 1.02. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in, and made a part of, this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder or a
Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, any
Guarantor and any other obligor on the Securities.
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All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Series A Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit A annexed
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Series B Securities and the Trustee's certificate of
authentication thereof shall be substantially in the form of Exhibit B annexed
hereto, which is hereby incorporated in and expressly made a part of this
Indenture. The Securities may have notations, legends or endorsements (including
notations relating to any Subsidiary Guarantees, stock exchange rule or usage).
The Company and the Trustee shall approve the form of the Securities and any
notation, legend or endorsement (including notations relating to any Subsidiary
Guarantees) on them any such approval to be evidenced by the execution or
authentication thereof. Each Security shall be dated the date of its issuance
and shall be authenticated by the Trustee.
Securities offered and sold in reliance on Rule 144A shall be
issued initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in Exhibit A, deposited
with the Trustee, as custodian for the Depository, and
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shall bear the legend set forth in Exhibit C. The aggregate principal amount of
any Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository,
as hereinafter provided.
Securities offered and sold in offshore transactions in
reliance on Regulation S shall be issued in the form of certificated Securities
in registered form in substantially the form set forth in Exhibit A (the
"Offshore Physical Securities"). Securities offered and sold in reliance on any
other exemption from registration under the Securities Act other than as
described in the preceding paragraph shall be issued, and Securities offered and
sold in reliance on Rule 144A may be issued, in the form of certificated
Securities in registered form in substantially the form set forth in Exhibit A
(the "U.S. Physical Securities"). The Offshore Physical Securities and the U.S.
Physical Securities are sometimes collectively herein referred to as the
"Physical Securities."
SECTION 2.02. Execution and Authentication.
(a) Two Officers, or an Officer and a secretary, treasurer,
controller or an assistant secretary of the Company, shall sign, or one
Officer shall sign and one Officer or a Secretary or an Assistant
Secretary of the Company (each of whom shall, in each case, have been
duly authorized by all requisite corporate actions) shall attest to,
the Securities for the Company by manual or facsimile signature.
If an Officer or a secretary, treasurer, controller or an
assistant secretary of the Company whose signature is on a Security was
an Officer or a Secretary or an Assistant Secretary of the Company at
the time of such execution but no longer holds that office at the time
the Trustee authenticates the Security, the Security shall be valid
nevertheless. Each Guarantor shall execute its Subsidiary Guarantee in
the manner set forth in Section 10.07.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security
has been authenticated under this Indenture.
(b) The Trustee shall authenticate (i) Securities for original issue
on the Issue Date in the aggregate principal amount of $350,000,000,
(ii) subject to compliance by the Company with clause (c) below,
Additional Securities for original issue in an aggregate principal
amount specified in a written order of the Company and (iii) Series B
Securities for issue only in exchange, pursuant to the terms of a
Registration Rights Agreement, for a like principal amount of Series A
Securities, in each case upon a written order of the Company in the
form of an Officers' Certificate. Each such Officers' Certificate shall
specify the amount of Securities to be authenticated, the series of
Securities and the date on which the Securities are to be
authenticated.
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(c) Except as provided in Section 2.07, Additional Securities
may be issued only in compliance with Section 4.03 and, in the case of
any such Additional Securities, the Officers' Certificate specified in
clause (b) above shall certify that such issuance is not prohibited
under Section 4.03 of this Indenture. Any Additional Securities shall
be part of the same issue as the Securities being issued on the Issue
Date and will vote on all matters as one class with the Securities
being issued on the Issue Date, including, without limitation, waivers,
amendments, redemptions, Change of Control Offers and Net Proceeds
Offers.
(d) Upon receipt of a written order of the Company in the form
of an Officers' Certificate, the Trustee shall authenticate Securities
in substitution for Securities originally issued to reflect any name
change of the Company.
(e) The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise
provided in the appointment, an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to
deal with the Company and Affiliates of the Company.
(f) The Securities shall be issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough
of Manhattan, The City of New York (the "New York Presenting Agent"), where (a)
Securities may be presented or surrendered in New York City for registration of
transfer or for exchange, (b) Securities may be presented or surrendered for
payment in New York City and (c) notices and demands upon the Company in respect
of the Securities and this Indenture may be served in New York City. The Trustee
shall initially act as Registrar ("Registrar") and Paying Agent ("Paying Agent")
for the Securities. The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company, upon written notice to the Trustee,
may have one or more co-Registrars and one or more additional Paying Agents
reasonably acceptable to the Trustee. The term "Paying Agent" includes any
additional Paying Agent. The Company initially appoints the Trustee as
Registrar, Paying Agent and New York Presenting Agent until such time as the
Trustee has resigned or a successor has been appointed. Notices and demands upon
the Company in respect of the Securities and this Indenture may be served at the
Trustee's office in The City of New York located as of the date hereof c/o The
Bank of New York 101 Barclay Street, New York, New York 10286. Neither the
Company nor any Affiliate of the Company may act as Paying Agent except as
otherwise expressly provided in the form of the Security.
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SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that each Paying Agent shall hold in trust for the
benefit of Holders or the Trustee all assets held by the Paying Agent for the
payment of principal of, premium, if any, or interest on the Securities, and
shall notify the Trustee in writing of any Default by the Company in making any
such payment. The Company at any time may require a Paying Agent to distribute
all assets held by it to the Trustee and account for any assets disbursed and
the Trustee may at any time, but shall be under no obligation to, during the
continuance of any payment Default, upon written request to a Paying Agent,
require such Paying Agent to distribute all assets held by it to the Trustee and
to account for any assets distributed. Upon distribution to the Trustee of all
assets that shall have been delivered by the Company to the Paying Agent, the
Paying Agent shall have no further liability for such assets.
SECTION 2.05. 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 Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee before each Record Date and at such other times as the
Trustee may request in writing a list as of such date and in such form as the
Trustee may reasonably require of the names and addresses of Holders, which list
may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when
Securities are presented to the Registrar or a co-Registrar (through the New
York Presenting Agent or otherwise) with a request to register the transfer of
such Securities or to exchange such Securities for an equal principal amount of
Securities of other authorized denominations of the same series, the Registrar
or co-Registrar shall register the transfer or make the exchange as requested if
its requirements for such transaction are met; provided, however, that the
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar or co-Registrar, duly executed by the Holder thereof
or his attorney duly authorized in writing. To permit registrations of transfers
and exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-Registrar's written request. No service
charge shall be made for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than any such
transfer taxes or other governmental charge payable upon exchanges or transfers
pursuant to Section 2.02, 2.10, 3.06, 3.07, 4.12, 4.21 or 9.05). The Registrar
or co-Registrar shall not be required to register the transfer of or exchange of
any Security (i) during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption of Securities and ending at the
close of business on the day of such mail-
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ing and (ii) selected for redemption in whole or in part pursuant to Article
Three, except the unredeemed portion of any Security being redeemed in part.
Any Holder of a Global Security shall, by acceptance of such
Global Security, agree that transfers of beneficial interests in such Global
Security may be effected only through a book-entry system maintained by the
Depository (or its agent), and that ownership of a beneficial interest in a
Global Security shall be required to be reflected in a book entry system.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the 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
upon written notice from the Company a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
both the Company and the Trustee, to protect the Company, the Trustee and any
Agent from any loss which any of them may suffer if a Security is replaced. The
Company and the Trustee may charge such Holder for their respective reasonable
out-of-pocket expenses in replacing a Security, including reasonable fees and
expenses of counsel. Every replacement Security is an additional obligation of
the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that
have been authenticated by the Trustee except those canceled by it, those
delivered to it for cancellation and those described in this Section as not
outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other than
a mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07.
If on a Redemption Date or the Final Maturity Date the Paying
Agent holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay
all of the principal and interest due on the Securities payable on that date,
then on and after that date such Securities cease to be outstanding and interest
on them ceases to accrue.
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SECTION 2.09. Treasury Securities.
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, any Guarantor or any of their respective
Affiliates shall be disregarded, except that, for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities that a Responsible Officer of the Trustee actually
knows are so owned shall be disregarded.
The Trustee may require an Officers' Certificate listing
Securities owned by the Company, any Guarantor or any of their respective
Affiliates.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities upon
receipt of a written order of the Company in the form of an Officers'
Certificate. The Officers' Certificate shall specify the amount of temporary
Securities to be authenticated and the date on which the temporary Securities
are to be authenticated. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a written order
of the Company pursuant to Section 2.02 definitive Securities in exchange for
temporary Securities.
SECTION 2.11. 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 transfer, exchange or payment.
The Trustee, or at the direction of the Trustee, the Registrar or the Paying
Agent, and no one else, shall cancel and, at the written direction of the
Company, shall dispose of all Securities surrendered for transfer, exchange,
payment or cancellation; provided, however, that in no event shall the Trustee
be required to destroy any cancelled Securities. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation. If the Company or any Guarantor shall
acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the Indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation
pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the
Securities, it shall pay interest on overdue principal and on overdue
installments of interest (without grace periods)
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from time to time on demand at the rate of 2% per annum in excess of the rate
shown on the Security.
SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use a "CUSIP"
number, and if so, the Trustee shall use the CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Securities, and
that reliance may be placed only on the other identification numbers printed on
the Securities.
SECTION 2.14. Deposit of Moneys.
Prior to the close of business of the Paying Agent on the
Business Day next prior to each Interest Payment Date and the Final Maturity
Date, the Company shall deliver by wire transfer to the Paying Agent in
immediately available funds money sufficient to make cash payments due on such
Interest Payment Date or the Final Maturity Date, as the case may be, in a
timely manner which permits the Paying Agent to remit payment to the Holders on
such Interest Payment Date or the Final Maturity Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in
the name of the Depository or the nominee of such Depository, (ii) be delivered
to the Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit C.
Members of, or participants in, the Depository
("Participants") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depository, or the Trustee as its
custodian, or under the Global Security, and the Depository may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the 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 Depository
or impair, as between the Depository and Participants, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depository, its successors or their
respective nominees. Interests of beneficial owners in the Global Securities may
be transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in Global Securities if (i) the
Depository notifies the Company
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that it is unwilling or unable to continue as Depository for any Global Security
and a successor depositary is not appointed by the Company within 90 days of
such notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depository to issue Physical
Securities.
(c) In connection with the transfer of Global Securities as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
the Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon written
instructions from the Company authenticate and deliver, to each beneficial owner
identified by the Depository in exchange for its beneficial interest in the
Global Securities, an equal aggregate principal amount of Physical Securities of
authorized denominations.
(d) Any Physical Security constituting a Restricted Security
delivered in exchange for an interest in a Global Security pursuant to paragraph
(b) or (c) of this Section 2.15 shall, except as otherwise provided by Section
2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and
otherwise authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is entitled to
take under this Indenture or the Securities.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When
Physical Securities are presented to the Registrar with a request
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal number
of Physical Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for such
transactions are met; provided, however, that the Physical Securities presented
or surrendered for registration of transfer or exchange
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing and accompanied by reasonable assurance that each
necessary endorsement or instrument is genuine and authorized; and
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(II) in the case of Physical Securities the offer and sale of
which have not been registered under the Securities Act, such Physical
Securities shall be accompanied by an Opinion of Counsel addressed to
the Registrar to the effect that such transfer and exchange is in
compliance with applicable securities law and, in the sole discretion
of the Company, by the following additional information and documents,
as applicable:
(A) if such Physical Security is being delivered to
the Registrar by a holder for registration in the name of such
holder, without transfer, a certification from such holder to
that effect (in substantially the form of Exhibit D hereto);
or
(B) if such Physical Security is being transferred to
a Qualified Institutional Buyer in accordance with Rule 144A
under the Securities Act, a certification to that effect (in
substantially the form of Exhibit D hereto); or
(C) if such Physical Security is being transferred to
an Institutional Accredited Investor, delivery of a
certification to that effect (in substantially the form of
Exhibit D hereto) and a Transferee Certificate for
Institutional Accredited Investors in substantially the form
of Exhibit E hereto; or
(D) if such Physical Security is being transferred in
reliance on Regulation S, delivery of a certification to that
effect (in substantially the form of Exhibit D hereto) and a
Transferee Certificate for Regulation S Transfers in
substantially the form of Exhibit F hereto and an Opinion of
Counsel reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the Securities Act;
or
(E) if such Physical Security is being transferred in
reliance on Rule 144 under the Securities Act, delivery of a
certification to that effect (in substantially the form of
Exhibit D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer
is in compliance with the Securities Act; or
(F) if such Physical Security is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification to that
effect (in substantially the form of Exhibit D hereto) and an
Opinion of Counsel reasonably satisfactory to the Company to
the effect that such transfer is in compliance with the
Securities Act.
(b) Restrictions on Transfer of a Physical Security for a
Beneficial Interest in a Global Security. A Physical Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by
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the Registrar of a Physical Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form satisfactory to the Registrar,
together with
(A) a certification, in substantially the form of Exhibit D
hereto, that such Physical Security is being transferred to a Qualified
Institutional Buyer; and
(B) written instructions directing the Registrar to make, or
to direct the Depository to make, an endorsement on the Global Security
to reflect an increase in the aggregate amount of the Securities
represented by the Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the
Depository to cause, in accordance with the standing instructions and procedures
existing between the Depository and the Registrar, the number of Securities
represented by the Global Security to be increased accordingly. If no Global
Security is then outstanding, the Company shall issue and the Trustee shall upon
written instructions from the Company authenticate a new Global Security in the
appropriate amount.
(c) Transfer and Exchange of Global Securities. The transfer
and exchange of Global Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture (including
the restrictions on transfer set forth herein) and the procedures of the
Depository therefor.
(d) Transfer of a Beneficial Interest in a Global Security for
a Physical Security. (i) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a Physical
Security. Upon receipt by the Registrar of written instructions or such other
form of instructions as is customary for the Depository from the Depository or
its nominee on behalf of any Person having a beneficial interest in a Global
Security and upon receipt by the Trustee of a written order or such other form
of instructions as is customary for the Depository or the Person designated by
the Depository as having such a beneficial interest containing registration
instructions and, in the case of any such transfer or exchange of a beneficial
interest in Securities the offer and sale of which have not been registered
under the Securities Act, an Opinion of Counsel addressed to the Registrar to
the effect that such transfer and exchange is in compliance with applicable
securities laws and the following additional information and documents:
(A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification from such Person to that effect (in substantially the
form of Exhibit D hereto); or
(B) if such beneficial interest is being transferred to a
Qualified Institutional Buyer in accordance with Rule 144A under the
Securities Act, a certification to that effect (in substantially the
form of Exhibit D hereto); or
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(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of a certification to that
effect (in substantially the form of Exhibit D hereto) and a
Certificate for Institutional Accredited Investors in substantially the
form of Exhibit E hereto; or
(D) if such beneficial interest is being transferred in
reliance on Regulation S, delivery of a certification to that effect
(in substantially the form of Exhibit D hereto) and a Transferee
Certificate for Regulation S Transfers in substantially the form of
Exhibit F hereto and an Opinion of Counsel reasonably satisfactory to
the Company to the effect that such transfer is in compliance with the
Securities Act; or
(E) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act, delivery of a
certification to that effect (in substantially the form of Exhibit D
hereto) and an Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in compliance with the
Securities Act; or
(F) if such beneficial interest is being transferred in
reliance on another exemption from the registration requirements of the
Securities Act, a certification to that effect (in substantially the
form of Exhibit D hereto) and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such transfer is in
compliance with the Securities Act,
then the Registrar will cause, in accordance with the standing instructions and
procedures existing between the Depository and the Registrar, the aggregate
amount of the Global Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the form of
an Officers' Certificate, the Trustee will authenticate and deliver to the
transferee a Physical Security.
(ii) Securities issued in exchange for a beneficial interest
in a Global Security pursuant to this Section 2.16(d) shall be registered in
such names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Registrar in writing. The Registrar shall make such Physical
Securities available for delivery to the Persons in whose names such Physical
Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture, a Global
Security may not be transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(f) Private Placement Legend. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities
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that do not bear the Private Placement Legend. Upon the transfer, exchange or
replacement of Securities bearing the Private Placement Legend, the Registrar
shall deliver only Securities that bear the Private Placement Legend unless, and
the Trustee is hereby authorized to deliver Securities without the Private
Placement Legend if (i) there is delivered to the Trustee an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (ii)
such Security has been sold pursuant to an effective registration statement
under the Securities Act.
(g) General. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in the
Private Placement Legend and agrees that it will transfer such Security only as
provided in this Indenture.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16 in accordance with its customary procedures. 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.
The Registrar and 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 any Security (including any transfers between or
among Participants or beneficial owners of interests 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.
ARTICLE Three
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to
Paragraph 5 or Paragraph 6 of the Securities, it shall notify the Trustee in
writing of the Redemption Date, the Redemption Price and the principal amount of
Securities to be redeemed. The Company shall give notice of redemption to the
Trustee at least 45 days but not more than 60 days before the Redemption Date
(unless a shorter notice shall be agreed to by the Trustee in writing), together
with an Officers' Certificate stating that such redemption will comply with the
conditions contained herein.
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SECTION 3.02. Selection of Securities To Be Redeemed.
If fewer than all of the Securities are to be redeemed at any
time, the Trustee shall select the Securities to be redeemed in compliance with
the requirements of the principal national securities exchange, if any, on which
the Securities are listed or, if the Securities are not then listed on a
national securities exchange, on a pro rata basis, by lot or by such method as
the Trustee shall deem fair and appropriate; provided, however, that if the
Securities are redeemed pursuant to Paragraph 6 of the Securities, the
Securities shall be redeemed solely on a pro rata basis or on as nearly a pro
rata basis as is practicable (subject to the procedures of the Depository)
unless the securities exchange, if any, on which the Securities are listed
requires a different method. If the Securities are listed on any national
securities exchange, the Company shall notify the Trustee in writing of the
requirements of such exchange in respect of any redemption. The Trustee shall
make the selection from the Securities outstanding and not previously called for
redemption and shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of Securities that have denominations larger than $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption by
first-class mail, postage prepaid, to each Holder whose Securities are to be
redeemed. At the Company's written request delivered at least 15 days prior to
the proposed date of such mailing (unless a shorter notice shall be acceptable
to the Trustee), the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense. Each notice for redemption shall
identify the Securities to be redeemed (including CUSIP numbers, if any) and
shall state
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price plus accrued
interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date, and the only remaining right of the
Holders of such Securities is to receive
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payment of the Redemption Price and accrued interest, if any, to the
Redemption Date upon surrender to the Paying Agent of the Securities
redeemed;
(6) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after
the Redemption Date, and upon surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be
outstanding after such partial redemption; and
(8) the paragraph of the Securities pursuant to which the
Securities are to be redeemed.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section
3.03, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price plus accrued interest, if any. Upon surrender
to the Paying Agent, such Securities called for redemption shall be paid at the
Redemption Price (which shall include accrued interest thereon to the Redemption
Date), but installments of interest, the maturity of which is on or prior to the
Redemption Date, shall be payable to Holders of record at the close of business
on the relevant Record Dates.
SECTION 3.05. Deposit of Redemption Price.
Prior to 11:00 a.m. New York City time on the Redemption Date,
the Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to
pay the Redemption Price plus accrued interest, if any, of all Securities to be
redeemed on that date.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price plus accrued
interest, if any, 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 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part,
the Trustee shall authenticate for the Holder a new Security or Securities equal
in principal amount to the unredeemed portion of the Security surrendered.
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ARTICLE Four
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the
Securities in the manner provided in the Securities. An installment of principal
of or interest on the Securities shall be considered paid on the date it is due
if the Trustee or Paying Agent holds on that date U.S. Legal Tender designated
for and sufficient to pay the installment.
The Company shall pay, to the extent such payments are lawful,
interest on overdue principal and it shall pay interest on overdue installments
of interest (without regard to any applicable grace periods) from time to time
on demand at the rate borne by the Securities plus 2% per annum. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The
City of New York, the office or agency required under Section 2.03. The Company
shall give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.02. The Company hereby initially designates the Trustee's office located at
c/o The Bank of New York, 101 Barclay Street, New York, NY 10286 as its office
or agency in the Borough of Manhattan, The City of New York.
SECTION 4.03. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
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 of or as a consequence of the incurrence of any such
Indebtedness:
(a) the Company, any Guarantor, any Finance Subsidiary that is
a Domestic Restricted Subsidiary and any Accounts Receivable Entity
that is a Domestic Restricted Subsidiary may incur Indebtedness
(including, without limitation, Acquired Indebtedness) if on the date
of the incurrence of such Indebtedness, after giving effect
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to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio
of the Company would be greater than 2.0 to 1.0; and
(b) any Restricted Subsidiary that is not a Guarantor (and is
not a Finance Subsidiary or an Accounts Receivable Entity that is a
Domestic Restricted Subsidiary) may incur Indebtedness (including,
without limitation, Acquired Indebtedness) if, on the date of the
incurrence of such Indebtedness, after giving effect to the incurrence
thereof,
(i) the Consolidated Fixed Charge Coverage Ratio of
the Company would be greater than 2.0 to 1.0; and
(ii) if the agreements governing such Indebtedness
contain an encumbrance or restriction on the ability of the
applicable Restricted Subsidiary that is not a Guarantor (and
is not a Finance Subsidiary or an Accounts Receivable Entity
that is a Domestic Restricted Subsidiary) to pay dividends or
make distributions on or in respect of its Capital Stock, the
Combined Fixed Charge Coverage Ratio of the Restricted
Subsidiaries that are not Guarantors would be greater than
2.25 to 1.0.
No Indebtedness incurred pursuant to the Consolidated Fixed
Charge Coverage Ratio test of the preceding paragraph (including, without
limitation, Indebtedness under the Credit Agreement) shall reduce the amount of
Indebtedness which may be incurred pursuant to any clause of the definition of
Permitted Indebtedness (including, without limitation, Indebtedness under the
Credit Agreement pursuant to clause (2) of the definition of "Permitted
Indebtedness").
SECTION 4.04. Limitation on Restricted Payments.
The Company will not, and will not cause or permit any of the
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 of the Company) on or in respect of shares of its Capital Stock
to holders of such Capital Stock (including by means of a Person
(including an Unrestricted Subsidiary) making such a payment with the
proceeds of an Investment made by the Company or any Restricted
Subsidiary);
(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
(including by means of a Person (including an Unrestricted Subsidiary)
making such a payment with the proceeds of an Investment made by the
Company or any Restricted Subsidiary); or
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(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:
(1) a Default or an Event of Default shall have occurred and
be continuing;
(2) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in
compliance with Section 4.03; or
(3) the aggregate amount of Restricted Payments (including
such proposed Restricted Payment) made after March 31, 2003 (the amount
expended for such purpose, if other than in cash, being the Fair Market
Value of such property as determined reasonably and in good faith by
the Board of Directors of the Company) shall exceed the sum of:
(v) $30.0 million; plus
(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 during the period
beginning on the first day of the fiscal quarter commencing on
April 1, 2003 and through the end of the most recent fiscal
quarter for which financial statements are available prior to
the date such Restricted Payment occurs (the "Reference Date")
(treating such period as a single accounting period); plus
(x) 100% of the Fair Market Value of the net proceeds
received by the Company from any Person (other than a
Subsidiary of the Company) from the issuance and sale
subsequent to March 31, 2003 and on or prior to the Reference
Date of Qualified Capital Stock of the Company or from the
issuance of Indebtedness of the Company that has been
converted into or exchanged for Qualified Capital Stock of the
Company subsequent to the Issue Date and on or prior to the
Reference Date; plus
(y) without duplication of any amounts included in
clause (3)(x) above, 100% of the Fair Market Value of the net
proceeds of any contribution to the common equity capital of
the Company received by the Company from a holder of the
Company's Capital Stock subsequent to March 31, 2003; plus
(z) an amount equal to the lesser of (A) the sum of
the Fair Market Value of the Capital Stock of an Unrestricted
Subsidiary owned by the Company and/or the Restricted
Subsidiaries and the aggregate amount of all Indebt-
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edness of such Unrestricted Subsidiary owed to the Company and
each Restricted Subsidiary on the date of Revocation of such
Unrestricted Subsidiary as an Unrestricted Subsidiary in
accordance with Section 4.20 or (B) the Designation Amount
with respect to such Unrestricted Subsidiary on the date of
the Designation of such Subsidiary as an Unrestricted
Subsidiary in accordance with Section 4.20.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit:
(I) the payment of any dividend within 60 days after the date
of declaration of such dividend if the dividend would have been
permitted on the date of declaration;
(II) the acquisition of any shares of Capital Stock of the
Company, either (A) solely in exchange for shares of Qualified Capital
Stock of the Company or (B) through the application of net proceeds of
a substantially concurrent sale for cash (other than to a Subsidiary of
the Company) of shares of Qualified Capital Stock of the Company;
(III) so long as no Default or Event of Default shall have
occurred and be continuing, repurchases of Capital Stock (or rights or
options therefor) of the Company from officers, directors, employees or
consultants pursuant to equity ownership or compensation plans or
stockholders agreements not to exceed $15.0 million in the aggregate
subsequent to March 31, 2003;
(IV) dividends and distributions paid on Common Stock of a
Restricted Subsidiary on a pro rata basis; and
(V) an Investment with the net proceeds of a substantially
concurrent sale for cash (other than to a Subsidiary of the Company) of
shares of Qualified Capital Stock of the Company.
In determining the aggregate amount of Restricted Payments
made subsequent to March 31, 2003 in accordance with clause (3) of the first
paragraph of this Section 4.04, amounts expended pursuant to clauses (I), (II),
(III) and (V) shall be included in such calculation.
Not later than the date the Company is required to file its
financial statements with the Commission (without giving effect to any
extensions thereof) with respect to any fiscal quarter during which any
Restricted Payment was made which, together with any Restricted Payments not
previously reported hereunder, exceeds $30.0 million (which, in the case of the
Company's fourth fiscal quarter of any fiscal year, shall be the date on which
the
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Company is required to file its annual financial statements for that fiscal
year), the Company will deliver to the Trustee an Officers' Certificate stating
that such Restricted Payment complies with this Indenture and setting forth in
reasonable detail the basis upon which the required calculations were computed,
which calculations may be based upon the Company's latest available internal
quarterly financial statements.
SECTION 4.05. Corporate Existence.
Except as otherwise permitted by Article Five, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence and the corporate, partnership or other
existence of each of the Restricted Subsidiaries in accordance with the
respective organizational documents of each Restricted Subsidiary and the rights
(charter and statutory) and material franchises of the Company and each of its
Restricted Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right or franchise, or the corporate existence of
any Restricted Subsidiary, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Restricted Subsidiaries, taken as a whole,
and that the loss thereof is not, and will not be, adverse in any material
respect to the Holders.
SECTION 4.06. 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 levied or imposed upon it or any of the
Restricted Subsidiaries or upon the income, profits or property of it or any of
the Restricted Subsidiaries and (ii) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability or Lien upon the property of it or any of the Restricted 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 and for which appropriate provision has been made.
SECTION 4.07. Maintenance of Properties and Insurance.
(a) The Company shall cause all material properties owned by
or leased by it or any of the Restricted Subsidiaries used in the conduct of its
business or the business of any of the Restricted Subsidiaries to be improved or
maintained and kept in normal condition, repair and working order (reasonable
wear and tear excepted) and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in its judgment may be necessary, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 4.07
shall prevent the Company or any
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of the Restricted Subsidiaries from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors of the
Company or of the Board of Directors of any Restricted Subsidiary, or of an
officer (or other agent employed by the Company or of any of the Restricted
Subsidiaries) of the Company or any of its Restricted Subsidiaries having
managerial responsibility for any such property, desirable in the conduct of the
business of the Company or any Restricted Subsidiary, and if such discontinuance
or disposal is not adverse in any material respect to the Holders.
(b) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as are customarily carried by similar businesses of
similar size, including property and casualty loss, workers' compensation and
interruption of business insurance.
SECTION 4.08. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 100 days
after the close of each fiscal year, an Officers' Certificate stating that a
review of the activities of the Company has been made under the supervision of
the signing officers with a view to determining whether it has kept, observed,
performed and fulfilled its obligations under this Indenture and further
stating, as to each such Officer, Secretary or Controller of the Company signing
such certificate, that to the best of his knowledge the Company during such
preceding fiscal year has kept, observed, performed and fulfilled each and every
such covenant and no Default or Event of Default occurred during such year and
at the date of such certificate no Default or Event of Default has occurred and
is continuing or, if such signers do know of such Default or Event of Default,
the certificate shall describe its status with particularity. The Officers'
Certificate shall also notify the Trustee should the Company elect to change the
manner in which it fixes its fiscal year end.
(b) The annual financial statements delivered pursuant to
Section 4.10 shall be accompanied by a written report of the Company's
independent accountants (who shall be a firm of established national reputation)
that in conducting their audit of such financial statements nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article Four, Five or Six of this Indenture insofar as they
relate to accounting matters or, if any such violation has occurred, specifying
the nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall deliver to the Trustee, within ten days
after becoming aware of any Default or Event of Default in the performance of
any covenant, agreement or condition contained in this Indenture, an Officers'
Certificate specifying the Default or Event of Default and describing its status
with particularity. Upon the written request of the
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Trustee (which may be given at any time and from time to time), the Company
shall promptly provide written notice to the Trustee confirming that no Default
or Event of Default has occurred or is continuing, or if a Default or Event of
Default has occurred or is continuing, written notice briefly describing such
Default or Event of Default.
SECTION 4.09. Compliance with Laws.
The Company shall comply, and shall cause each of the
Restricted 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
would not in the aggregate have a material adverse effect on the financial
condition or results of operations of the Company and the Restricted
Subsidiaries taken as a whole.
SECTION 4.10. Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, to the extent
permitted by the Exchange Act, the Company will file with the Commission, and
provide to the Trustee and the Holders of the Securities, the annual reports and
the information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may by rules and regulations prescribe) that
are specified in Sections 13 and 15(d) of the Exchange Act within the time
periods required; provided, however, that availability of the foregoing
materials on the Commission's EDGAR service shall be deemed to satisfy the
Company's delivery obligations hereunder. In the event that the Company is not
permitted to file such reports, documents and information with the Commission
pursuant to the Exchange Act, the Company will nevertheless provide such
Exchange Act information to the Trustee and the Holders of the Securities as if
the Company were subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act within the time periods required by law.
(b) If the Company has designated any of its Subsidiaries as
an Unrestricted Subsidiary, then the quarterly and annual financial information
required by the preceding paragraph will include a reasonably detailed
presentation, either on the face of the financial statements or in the footnotes
to the financial statements, and in "Management's Discussion and Analysis of
Financial Condition and Results of Operations," of the financial condition and
results of operations of the Company and the Restricted Subsidiaries.
(c) In addition, the Company has agreed that, for so long as
any Securities remain outstanding, it will furnish to the Holders and to
securities analysts and prospective investors, upon their request, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
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Delivery of such reports, information and documents to the
Trustee pursuant to this Section 4.10 is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 4.11. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the Securities
as contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture, and (to
the extent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.12. Limitation on Asset Sales.
The Company will not, and will not permit any of the
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) 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;
(2) at least 75% of the consideration received by the Company
or the Restricted Subsidiary, as the case may be, from such Asset Sale
shall be in the form of cash or Cash Equivalents and is received at the
time of such disposition; and
(3) 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 after receipt
thereof either (A) to prepay Senior Debt, Guarantor Senior Debt or
Indebtedness of a Restricted Subsidiary that is not a Guarantor, in the
case of any such Senior Debt under any revolving credit facility,
effect a permanent reduction in the availability under such revolving
credit facility (or effect a permanent reduction in availability under
such revolving credit facility, regardless of the fact that no
prepayment is required), (B) to acquire Replacement Assets, or (C) a
combination of prepayment and investment permitted by the foregoing
clauses (3)(A) and (3)(B).
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Pending the final application of the Net Cash Proceeds, the Company and the
Restricted Subsidiaries may invest such Net Cash Proceeds in any manner not
prohibited by this Indenture.
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 (3)(A), (3)(B) and (3)(C) of the preceding paragraph (each, a
"Net Proceeds Offer Trigger Date"), such aggregate amount of Net Cash Proceeds
which have not been applied on or before such Net Proceeds Offer Trigger Date as
permitted in clauses (3)(A), (3)(B) and (3)(C) of the preceding paragraph (each,
a "Net Proceeds Offer Amount") shall be applied by the Company 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 60 days following the applicable
Net Proceeds Offer Trigger Date, from all Holders on a pro rata basis, that
principal amount of Securities equal to the Net Proceeds Offer Amount at a price
equal to 100% of the principal amount of the Securities to be purchased, plus
accrued and unpaid interest, if any, thereon to the date of purchase; provided,
however, that if the Company elects (or is required by the terms of Indebtedness
that ranks pari passu with the Securities), such Net Proceeds Offer may be made
ratably to purchase the Securities and such pari passu Indebtedness.
If at any time any non-cash consideration received by the
Company or any Restricted Subsidiary, 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) or Cash
Equivalents, 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 4.12.
The Company may defer the Net Proceeds Offer until there is an
aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $35.0
million resulting from one or more Asset Sales or deemed Asset Sales (at which
time, the entire unutilized Net Proceeds Offer Amount, and not just the amount
in excess of $35.0 million, shall be applied as required pursuant to this
paragraph). The first such date the aggregate unutilized Net Proceeds Offer
Amount is equal to or in excess of $35.0 million shall be treated for this
purpose as the Net Proceeds Offer Trigger Date.
In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and the Restricted Subsidiaries
after the Issue Date as an entirety to a Person in a transaction permitted under
Section 5.01, the successor corporation shall be deemed to have sold the
properties and assets of the Company and the Restricted Subsidiaries not so
transferred for purposes of this Section 4.12, and shall comply with the
provisions of this Section 4.12 with respect to such deemed sale as if it were
an Asset Sale. In addition, the Fair Market Value of such properties and assets
of the Company or the Restricted Subsidiaries deemed to be sold shall be deemed
to be Net Cash Proceeds for purposes of this Section 4.12.
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Notice of each Net Proceeds Offer will be mailed or caused to
be mailed, by first class mail, by the Company within 30 days following the Net
Proceeds Offer Trigger Date to all record Holders as shown on the register of
Holders, with a copy to the Trustee. The notice shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this
Section 4.12 and that the Holders may elect to tender their Securities
in whole or in part in integral multiples of $1,000 in exchange for
cash; provided, however, that if the aggregate principal amount of
Securities properly tendered in a Net Proceeds Offer exceeds the Net
Proceeds Offer Amount, Securities of tendering Holders will be
purchased on a pro rata basis (based on amounts tendered);
(2) the purchase price (including the amount of accrued
interest, if any) and the Net Proceeds Offer Payment Date (which shall
be at least 20 Business Days from the date of mailing of notice of such
Net Proceeds Offer, or such longer period as required by law);
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Net
Proceeds Offer shall cease to accrue interest after the Net Proceeds
Offer Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Net Proceeds 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
Net Proceeds Offer Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the Business Day prior to
the Net Proceeds Offer Payment Date, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Security the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased; and
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered.
On or before the Net Proceeds Offer Payment Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Net Proceeds Offer which are to be purchased in accordance with item (1)
above, (ii) deposit with the Paying
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Agent in accordance with Section 2.14 U.S. Legal Tender sufficient to pay the
purchase price plus accrued interest, if any, of all Securities to be purchased
and (iii) deliver to the Trustee Securities so accepted together with an
Officers' Certificate stating the Securities or portions thereof being purchased
by the Company. The Paying Agent shall promptly mail to the Holders of
Securities so accepted payment in an amount equal to the purchase price plus
accrued interest, if any. For purposes of this Section 4.12, the Trustee shall
act as the Paying Agent.
To the extent that the aggregate amount of the notes tendered
pursuant to a Net Proceeds Offer is less than the Net Proceeds Offer Amount, the
Company may use such excess Net Proceeds Offer Amount for general corporate
purposes or for any other purposes not prohibited by this Indenture. Upon
completion of any such Net Proceeds Offer, the Net Proceeds Offer Amount shall
be reset to zero.
The Company will comply with all tender offer rules under state and
federal securities laws and regulations, including, but not limited to, Section
14(e) under the Exchange Act and Rule 14e-1 thereunder, to the extent applicable
to such offer. To the extent that the provisions of any securities laws or
regulations conflict with the foregoing "Asset Sale" provisions of this
Indenture, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under the
foregoing provisions of this Indenture by virtue thereof.
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries.
The Company will not, and will not cause or permit any of the
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 (it being understood that the priority of any
preferred stock in receiving dividends or liquidating distributions prior
to dividends or liquidating distributions being paid on common stock shall
not be deemed a restriction on the ability to make distributions on
Capital Stock);
(b) make loans or advances or to pay any Indebtedness or other
obligation owed to the Company or any other Restricted Subsidiary; or
(c) transfer any of its property or assets to the Company or any
other Restricted Subsidiary;
except for such encumbrances or restrictions existing under or by reason of:
(1) applicable law;
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(2) this Indenture;
(3) the Credit Agreement and/or the documentation for the Credit
Agreement and/or Indebtedness secured by a first priority Lien permitted
pursuant to clause (B) under Section 4.15;
(4) the Senior Secured Notes and/or the documentation for the Senior
Secured Notes;
(5) customary non-assignment provisions of any contract or any lease
governing a leasehold interest of any Restricted Subsidiary;
(6) any instrument governing Acquired Indebtedness, which
encumbrance or restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired;
(7) agreements existing on the Issue Date to the extent and in the
manner such agreements are in effect on the Issue Date;
(8) any other agreement entered into after the Issue Date which
contains encumbrances and restrictions which are not materially more
restrictive with respect to any Restricted Subsidiary than those in effect
with respect to such Restricted Subsidiary pursuant to agreements as in
effect on the Issue Date;
(9) any instrument governing Indebtedness of a Foreign Restricted
Subsidiary;
(10) customary restrictions on the transfer of any property or
assets arising under a security agreement governing a Lien permitted under
this Indenture;
(11) secured Indebtedness otherwise permitted to be incurred
pursuant to Section 4.03 and Section 4.15 that limit the right of the
debtor to dispose of the assets securing such Indebtedness;
(12) any agreement governing Refinancing Indebtedness incurred to
Refinance the Indebtedness issued, assumed or incurred pursuant to an
agreement referred to in clause (2), (4), (6), (7) or (9) above; provided,
however, that the provisions relating to such encumbrance or restriction
contained in any such Refinancing Indebtedness are not materially more
restrictive than the provisions relating to such encumbrance or
restriction contained in agreements referred to in such clause (2), (4),
(6), (7) or (9);
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(13) any agreement governing the sale or disposition of any
Restricted Subsidiary which restricts dividends and distributions pending
such sale or disposition;
(14) any agreement, instrument or Lien placing encumbrances or
restrictions applicable only to a Finance Subsidiary or an Accounts
Receivable Entity; or
(15) any agreement governing Indebtedness permitted to be incurred
pursuant to Section 4.03; provided that the provisions relating to such
encumbrance or restriction contained in such Indebtedness, taken as a
whole, are not materially more restrictive than the provisions contained
in the Credit Agreement or in the Indenture as in effect on the Issue
Date.
SECTION 4.14. Limitation on Issuances of Capital Stock of Restricted
Subsidiaries.
The Company will not permit any of the Restricted Subsidiaries
(other than a Finance Subsidiary or an Accounts Receivable Entity) to issue any
Preferred Stock (other than to the Company or to a Restricted Subsidiary) or
permit any Person (other than the Company or a Restricted Subsidiary) to own any
Preferred Stock of any Restricted Subsidiary (other than a Finance Subsidiary or
an Accounts Receivable Entity).
SECTION 4.15. Limitation on Liens.
The Company will not, and will not cause or permit any of the
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of the Restricted Subsidiaries, whether now owned
or hereafter acquired, or any proceeds therefrom, or assign or otherwise convey
any right to receive income or profits therefrom unless:
(1) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Securities or a
Subsidiary Guarantee, the Securities or such Subsidiary Guarantee is
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens; and
(2) in all other cases, the Securities are equally and ratably
secured,
except for:
(A) Liens existing as of the Issue Date to the extent and in the
manner such Liens are in effect on the Issue Date;
(B) Liens securing Senior Debt and Liens securing Guarantor Senior
Debt;
(C) Liens securing the Securities or any Subsidiary Guarantee;
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(D) Liens in favor of the Company or any Guarantor;
(E) Liens securing Refinancing Indebtedness which is incurred to
Refinance any Indebtedness (including, without limitation, Acquired
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:
(I) are no less favorable to Holders of the Securities and are
not more favorable to the lienholders with respect to such Liens
than the Liens in respect of the Indebtedness being Refinanced; and
(II) 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 4.16. Prohibition on Incurrence of Senior Subordinated Debt.
The Company will not, and will not permit any Guarantor to, incur or
suffer to exist after the Issue Date Indebtedness that is senior in right of
payment to the Securities or the Guarantee of such Guarantor, as the case may
be, and subordinate in right of payment to any other Indebtedness of the Company
or such Guarantor, as the case may be.
SECTION 4.17. Limitation on Transactions with Affiliates.
(a) The Company will not, and will not permit any of the Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each, an "Affiliate
Transaction"), other than:
(x) Affiliate Transactions permitted under paragraph (b)
below; and
(y) Affiliate Transactions on terms that are not materially less
favorable than those that would have reasonably been expected in a
comparable transaction at such time on an arm's-length basis from a Person
that is not an Affiliate of the Company or such Restricted Subsidiary.
All Affiliate Transactions (and each series of related Affiliate
Transactions which are similar or part of a common plan) involving aggregate
payments or other property
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with a Fair Market Value in excess of $10.0 million shall be approved by the
Board of Directors of the Company or such Restricted Subsidiary, as the case may
be, such approval to be evidenced by a Board Resolution stating that such Board
of Directors has determined that such transaction complies with the foregoing
provisions. If the Company or any Restricted Subsidiary enters into an Affiliate
Transaction (or series of related Affiliate Transactions related to a common
plan) on or after the Issue Date that involves an aggregate Fair Market Value of
more than $50.0 million, the Company or such Restricted Subsidiary, as the case
may be, shall, prior to the consummation thereof, obtain a favorable opinion as
to the fairness of such transaction or series of related transactions to the
Company or the relevant Restricted Subsidiary, as the case may be, from a
financial point of view, from an Independent Financial Advisor and file the same
with the Trustee.
(b) The restrictions set forth in paragraph (a) above shall not
apply to
(1) employment, consulting and compensation arrangements and
agreements of the Company or any Restricted Subsidiary consistent with
past practice or approved by a majority of the disinterested members of
the Board of Directors (or a committee comprised of disinterested
directors);
(2) reasonable fees and compensation paid to and indemnity provided
on behalf of, officers, directors, employees, consultants or agents of the
Company or any Restricted Subsidiary as determined in good faith by the
Company's Board of Directors or senior management;
(3) transactions exclusively between or among the Company and any of
the Restricted Subsidiaries or exclusively between or among such
Restricted Subsidiaries; provided that such transactions are not otherwise
prohibited by this Indenture; and
(4) Restricted Payments, Permitted Investments or Permitted Liens
permitted by this Indenture.
SECTION 4.18. Issuance of Subsidiary Guarantees.
If, on or after the Issue Date, the Company forms or acquires any
Domestic Restricted Subsidiary (other than (w) an Acquired Subsidiary for so
long as it is not a Wholly Owned Domestic Restricted Subsidiary, (x) a Finance
Subsidiary, (y) an Accounts Receivable Entity or (z) an Immaterial Domestic
Subsidiary) that incurs any Indebtedness (other than Indebtedness owing to the
Company or a Restricted Subsidiary), or if, on or after the Issue Date, any
Restricted Subsidiary that is not a Guarantor guarantees (a "Guarantee") any
Indebtedness of the Company or a Guarantor (other than Indebtedness owing to the
Company or a Restricted Subsidiary) ("Guaranteed Indebtedness"), then the
Company shall cause such Domestic Restricted Subsidiary or Restricted Subsidiary
that is not a Guarantor, as the case may be, to:
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(1) execute and deliver to the Trustee a supplemental indenture in
form reasonably satisfactory to the Trustee pursuant to which such Domestic
Restricted Subsidiary or Restricted Subsidiary that is not a Guarantor, as the
case may be, shall unconditionally guarantee (each, a "Subsidiary Guarantee")
all of the Company's obligations under the Securities and this Indenture on the
terms set forth in this Indenture; and
(2) execute and deliver to the Trustee an Opinion of Counsel (which
may contain customary exceptions) that such supplemental indenture has been duly
authorized, executed and delivered by such Domestic Restricted Subsidiary or
Restricted Subsidiary that is not a Guarantor, as the case may be, and
constitutes a legal, valid, binding and enforceable obligation of such Domestic
Restricted Subsidiary or Restricted Subsidiary that is not a Guarantor, as the
case may be.
Thereafter, such Domestic Restricted Subsidiary or Restricted
Subsidiary that was not a Guarantor, as the case may be, shall be a Guarantor
for all purposes of this Indenture. The Company may cause any other Restricted
Subsidiary of the Company to issue a Subsidiary Guarantee and become a
Guarantor.
If the Guaranteed Indebtedness is pari passu with the Securities,
then the Guarantee of such Guaranteed Indebtedness shall be pari passu with the
Subsidiary Guarantee. If the Guaranteed Indebtedness is subordinated to the
Securities, then the Guarantee of such Guaranteed Indebtedness shall be
subordinated to the Subsidiary Guarantee at least to the extent that the
Guaranteed Indebtedness is subordinated to the Securities.
Notwithstanding the foregoing, a Subsidiary Guarantee of the
Securities provided by a Guarantor will be released without any action required
on the part of the Trustee or any Holder of the Securities:
(1) if the guarantee of the Credit Agreement and of the Senior
Secured Notes made by such Guarantor is released, unless such Guarantor
has any Indebtedness outstanding or remains a guarantor of Indebtedness of
the Company or another Guarantor;
(2) if (a) all of the Capital Stock of, or all or substantially all
of the assets of, such Guarantor is sold or otherwise disposed of
(including by way of merger or consolidation) to a Person other than the
Company or any of its Domestic Restricted Subsidiaries or (b) such
Guarantor ceases to be a Restricted Subsidiary, and the Company otherwise
complies, to the extent applicable, with Section 4.12;
(3) if the Company designates such Guarantor as an
Unrestricted Subsidiary in accordance with Section 4.20; and
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(4) upon the Company's request if the fair market value of the
assets of the applicable Guarantor (as determined in good faith by the
Board of Directors of the Company), together with the fair market value of
the assets of other Guarantors whose Subsidiary Guarantee was released in
the same calendar year in reliance on this paragraph (4), does not exceed
$1.0 million (subject to cumulative carryover for amounts not used in any
prior calendar year).
At the Company's request, the Trustee will execute and deliver any
instrument evidencing such release. A Guarantor may also be released from its
obligation under its Subsidiary Guarantee in connection with amendments
permitted in accordance with the provisions of Article Nine of this Indenture.
The Trustee shall only be obligated to deliver any such instrument upon receipt
of an Officers' Certificate stating that such release is in compliance with this
Indenture.
SECTION 4.19. Payments for Consent.
The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Securities for or as an inducement to any consent, waiver or amendment of
any of the terms or provisions of this Indenture, the Securities or the
Subsidiary Guarantees unless such consideration is offered to be paid to all
Holders who so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or amendment.
SECTION 4.20. Limitation on Designations of Unrestricted Subsidiaries.
The Company may, on or after the Issue Date, designate any
Subsidiary of the Company (other than a Subsidiary of the Company which owns
Capital Stock of a Restricted Subsidiary or is a Guarantor) as an "Unrestricted
Subsidiary" under this Indenture (a "Designation") only if:
(1) no Default or Event of Default shall have occurred and be
continuing at the time of or after giving effect to such Designation;
(2) the Company would be permitted under this Indenture to make an
Investment at the time of Designation (assuming the effectiveness of such
Designation) in an amount (the "Designation Amount") equal to the sum of
(A) the Fair Market Value of the Capital Stock of such Subsidiary owned by
the Company and/or any of the Restricted Subsidiaries on such date and (B)
the aggregate amount of Indebtedness of such Subsidiary owed to the
Company and the Restricted Subsidiaries on such date; and
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(3) the Company would be permitted to incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) pursuant to Section 4.03
at the time of Designation (assuming the effectiveness of such
Designation).
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment in the Designation
Amount pursuant to Section 4.04 for all purposes of this Indenture.
The Company shall not, and shall not permit any Restricted
Subsidiary to, at any time:
(x) provide direct or indirect credit support for or a guarantee of
any Indebtedness of any Unrestricted Subsidiary (including any undertaking
agreement or instrument evidencing such Indebtedness);
(y) be directly or indirectly liable for any Indebtedness of
any Unrestricted Subsidiary; or
(z) be directly or indirectly liable for any Indebtedness which
provides that the holder thereof may (upon notice, lapse of time or both)
declare a default thereon or cause the payment thereof to be accelerated
or payable prior to its final scheduled maturity upon the occurrence of a
default with respect to any Indebtedness of any Unrestricted Subsidiary
(including any right to take enforcement action against such Unrestricted
Subsidiary), except, in the case of clause (x) or (y), to the extent
permitted under Section 4.04 hereof.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary ("Revocation"), whereupon such Subsidiary shall then
constitute a Restricted Subsidiary, if
(1) no Default or Event of Default shall have occurred and be
continuing at the time and after giving effect to such Revocation;
(2) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at
such time, have been permitted to be incurred for all purposes of this
Indenture; and
(3) such Subsidiary shall for purposes of Section 4.18 be treated as
having then been acquired by the Company.
All Designations and Revocations must be evidenced by an Officers'
Certificate of the Company delivered to the Trustee certifying compliance with
the foregoing provisions.
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SECTION 4.21. Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will
have the right to require that the Company purchase all or a portion of such
Holder's 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 and unpaid interest, if any, and any liquidated damages if
any, thereon 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, the Company will
(1) repay in full and terminate all commitments under Indebtedness
under the Credit Agreement and all other Senior Debt the terms of which
require repayment upon a Change of Control or offer to repay in full and
terminate all commitments under the Credit Agreement and all other Senior
Debt and to repay the Indebtedness owed to (and terminate all commitments
of) each lender under the Credit Agreement and each of the holders of
Senior Debt which has accepted such offer; or
(2) obtain the consents required under the Credit Agreement and all
such other Senior Debt 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.
(b) Within 30 days following the date upon which the Change of
Control occurs, 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,
(1) that the Change of Control Offer is being made pursuant to this
Section 4.21 and that all Securities tendered and not withdrawn will be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the purchase date, which must be no earlier than 30 days nor later
than 60 days from the date such notice is mailed, other than as may be
required by law (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Change of Control Offer
shall cease to accrue interest after the Change of Control Payment Date;
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(5) that 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;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the Business Day prior to the Change
of Control Payment Date, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Securities the Holder
delivered for purchase and a statement that such Holder is withdrawing his
election to have such Securities purchased;
(7) that Holders whose Securities are purchased only in part will be
issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent, in accordance with
Section 2.14, U.S. Legal Tender sufficient to pay the purchase price plus
accrued interest, if any, of all Securities so tendered and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
the Securities or portions thereof being purchased by the Company. Upon receipt
by the Paying Agent of the monies specified in clause (ii) above and a copy of
the Officers' Certificate specified in clause (iii) above, the Paying Agent
shall promptly mail to the Holders of Securities so accepted payment in an
amount equal to the purchase price plus accrued interest, if any, and the
Trustee shall promptly authenticate and mail to such Holders new Securities
equal in principal amount to any unpurchased portion of the Securities
surrendered. Any Securities not so accepted shall be promptly mailed by the
Company to the Holder thereof. For purposes of this Section 4.21, the Trustee
shall act as the Paying Agent.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Securities validly tendered and not withdrawn under
such Change of Control Offer.
Any amounts remaining after the purchase of all validly tendered and
not validly withdrawn Securities pursuant to a Change of Control Offer shall be
returned by the Trustee to the Company.
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The Company shall and shall cause its Subsidiaries to comply with
all tender offer rules under state and federal securities laws, including, but
not limited to, Section 14(e) under the Exchange Act and Rule 14e-1 thereunder,
to the extent applicable to such offer. To the extent that the provisions of any
securities laws or regulations conflict with this Section 4.21, the Company
shall comply with the applicable securities laws and regulations and shall not
be deemed to have breached its obligations under this Section 4.21 by virtue
thereof.
Notwithstanding the occurrence of a Change of Control, the Company
will not be obligated to repurchase the Securities under this covenant if it has
exercised its right to redeem the Securities under the terms of Paragrah 5 of
the Securities.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(a) The Company will not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary to sell, assign, transfer, lease, convey or otherwise
dispose of) all or substantially all of the Company's assets (determined on a
consolidated basis for the Company and the Restricted Subsidiaries) whether as
an entirety or substantially as an entirety to any Person unless:
(1) either (A) the Company shall be the surviving or continuing
corporation or (B) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by sale, assignment, transfer, lease, conveyance or other
disposition the properties and assets of the Company and the Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity") (x)
shall be a corporation organized and validly existing under the laws of
the United States or any State thereof or the District of Columbia, and
(y) shall expressly assume, by supplemental indenture (in form and
substance satisfactory to the Trustee), executed and delivered to the
Trustee, the due and punctual payment of the principal of and premium, if
any, and interest on all of the Securities and the performance of every
covenant of the Securities, this Indenture and the Registration Rights
Agreement on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction on a pro
forma basis and the assumption contemplated by clause (1)(B)(y) above
(including giving effect to any Indebtedness and Acquired Indebtedness
incurred or anticipated to be incurred in connection with or in respect of
such transaction), the Company or such Surviving Entity, as the case may
be, shall be able to incur at least $1.00 of additional Indebtedness
(other than Permitted Indebtedness) pursuant to Section 4.03;
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(3) immediately before and immediately after giving effect to such
transaction and the assumption contemplated by clause (1)(B)(y) above
(including, without limitation, giving effect to any Indebtedness and
Acquired Indebtedness incurred or anticipated to be incurred and any Lien
granted or to be released in connection with or in respect of the
transaction), no Default or Event of Default shall have occurred and be
continuing; and
(4) the Company or the Surviving Entity shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, sale, assignment, transfer, lease,
conveyance or other disposition and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with the applicable provisions of this Indenture and that all
conditions precedent in this Indenture relating to such transaction have
been satisfied.
(b) For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries, the Capital Stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
(c) No Guarantor (other than any Guarantor whose Subsidiary
Guarantee is to be released in accordance with the terms of the Subsidiary
Guarantee and this Indenture in connection with any transaction complying with
the provisions of Section 4.12) will, and the Company will not cause or permit
any Guarantor to, consolidate with or merge with or into any Person other than
the Company or any other Guarantor unless:
(1) the entity formed by or surviving any such consolidation or
merger (if other than the Guarantor) is a corporation organized and
existing under the laws of the United States or any State thereof or the
District of Columbia;
(2) such entity expressly assumes by supplemental indenture (in form
and substance satisfactory to the Trustee), executed and delivered to the
Trustee, the performance of every covenant of the Securities, this
Indenture and the Registration Rights Agreement on the part of such
Guarantor to be performed or observed;
(3) immediately after giving effect to such transaction, no Default
or Event of Default shall have occurred and be continuing;
(4) immediately after giving effect to such transaction and the use
of any net proceeds therefrom on a pro forma basis, the Company could
satisfy the provisions of clause (a)(2) of this Section 5.01; and
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(5) the Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that such consolidation
or merger and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture comply with the applicable
provisions of this Indenture and that all conditions precedent in this
Indenture relating to such transaction have been satisfied.
SECTION 5.02. Successor Corporation Substituted.
In accordance with the foregoing, upon any such consolidation,
combination, merger, conveyance, lease or any transfer of all or substantially
all of the assets of the Company in which the Company is not the continuing
corporation, the Surviving Entity formed by such consolidation or into which the
Company is merged or to which such conveyance, lease or transfer is made shall
succeed to, and 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 successor had been named as the Company herein, and thereafter the
predecessor corporation will be relieved of all further obligations and
covenants under this Indenture, the Securities and the Registration Rights
Agreement; provided that solely for purposes of computing amounts described in
subclause (iii) of the first paragraph of Section 4.04, any such Surviving
Entity 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 or transfer of assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" occurs if
(1) the failure to pay interest on any Security when the same
becomes due and payable and the default continues for a period of 30 days
(whether or not such payment shall be prohibited by Article Twelve of this
Indenture);
(2) the failure to pay the principal on any Securities when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Securities
tendered pursuant to a Change of Control Offer or a Net Proceeds Offer)
(whether or not such payment shall be prohibited by Article Twelve of this
Indenture);
(3) a default by the Company or any Restricted Subsidiary 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 no-
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tice specifying the default from the Trustee or the Holders of at least
25% of the outstanding principal amount of the Securities (except in the
case of a default with respect to Article Five, which will constitute an
Event of Default with such notice requirement but without such passage of
time requirement);
(4) a default under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced
any Indebtedness of the Company or of any Restricted Subsidiary (or the
payment of which is guaranteed by the Company or any Restricted
Subsidiary), whether such Indebtedness now exists or is created after the
Issue Date, which default (a) is caused by a failure to pay principal of
such Indebtedness after any applicable grace period provided in such
Indebtedness on the date of such default (a "Payment Default"), or (b)
results in the acceleration of such Indebtedness prior to its express
maturity (and such acceleration is not rescinded, or such Indebtedness is
not repaid, within 30 days) and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, exceeds $75.0 million or more at any
time;
(5) the Company or any of its Restricted Subsidiaries (A) admits in
writing its inability to pay its debts generally as they become due, (B)
commences a voluntary case or proceeding under any Bankruptcy Law with
respect to itself, (C) consents to the entry of a judgment, decree or
order for relief against it in an involuntary case or proceeding under any
Bankruptcy Law, (D) consents to the appointment of a Custodian of it or
for substantially all of its property, (E) consents to or acquiesces in
the institution of a bankruptcy or an insolvency proceeding against it,
(F) makes a general assignment for the benefit of its creditors, or (G)
takes any corporate action to authorize or effect any of the foregoing;
(6) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any Bankruptcy
Law, which shall (A) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any of its Significant Subsidiaries, (B) appoint a Custodian of
the Company or any of its Significant Subsidiaries or for substantially
all of any of their property or (C) order the winding-up or liquidation of
its affairs; and such judgment, decree or order shall remain unstayed and
in effect for a period of 60 consecutive days;
(7) one or more judgments in an aggregate amount in excess of $75.0
million not covered by adequate insurance (other than self-insurance)
shall have been rendered against the Company or any of the Restricted
Subsidiaries and such
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judgments remain undischarged, unpaid or unstayed for a period of 60 days
after such judgment or judgments become final and nonappealable; or
(8) any Subsidiary Guarantee of a Significant Subsidiary ceases to
be in full force and effect, or any Subsidiary Guarantee of such a
Significant Subsidiary is declared to be null and void and unenforceable
or any Subsidiary Guarantee of such a Significant Subsidiary is found to
be invalid or any Guarantor which is a Significant Subsidiary denies its
liability under its Subsidiary Guarantee (other than by reason of release
of such Guarantor in accordance with the terms of this Indenture).
The Trustee shall, within 90 days after the occurrence of any
Default actually known to a Responsible Officer of the Trustee, give to the
Securityholders notice of such Default; provided that, except in the case of a
Default in the payment of principal of or interest on any of the Securities, the
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Trustee in good faith determines that the withholding
of such notice is in the interest of the Securityholders.
SECTION 6.02. Acceleration.
If an Event of Default (other than an Event of Default specified in
clause (5) or (6) above) shall occur and be continuing, the Trustee or the
Holders of at least 25% in principal amount of outstanding Securities may
declare the principal of, premium, if any, and accrued and unpaid interest on
all the Securities to be due and payable by notice in writing to the Company
(and to the Trustee, if given by the Holders) specifying the respective Events
of Default and that it is a "notice of acceleration," and the same shall become
immediately due and payable. If an Event of Default specified in clause (5) or
(6) above occurs and is continuing, then all unpaid principal of, premium, if
any, and accrued and unpaid interest on all of the outstanding 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. If any Designated Senior
Debt is outstanding at the time of any acceleration of the Securities, the
Company shall not make any payment with respect to the Securities until five
Business Days after the holders of such Designated Senior Debt receive notice of
such acceleration.
At any time after a declaration of acceleration with respect to the
Securities as described in the preceding paragraph, the Holders of a majority in
principal amount of the then outstanding 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;
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(iii) to the extent the payment of such interest is lawful, if
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 compensation and
reimbursed the Trustee for its reasonable expenses, disbursements and
advances and any other sums owing to the Trustee pursuant to Section 7.07;
and
(v) in the event of the cure or waiver of an Event of Default of the
type described in clauses (5) and (6) of the description above of Events
of Default, the Trustee shall have received an Officers' Certificate and
an Opinion of Counsel that such Event of Default has been cured or waived.
No such rescission shall affect any subsequent Default or Event of
Default or impair any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities, this Indenture or any Subsidiary
Guarantee.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of a majority
in principal amount of the then outstanding Securities by written notice to the
Trustee may waive an existing Default or Event of Default and its consequences,
except a Default in the payment of principal of or premium, if any, or interest
on any Security as specified in clauses (1) and (2) of Section 6.01. The Company
shall deliver to the Trustee an Officers' Certificate stating that the requisite
percentage of Holders have consented to such waiver and attaching copies of such
consents upon which the Trustee may conclusively rely. When a Default or Event
of Default is waived, it is cured and ceases.
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SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the
outstanding Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. Subject to Section 7.01, however, the Trustee may refuse
to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Securityholder, or that may involve the Trustee in personal liability; provided
that the Trustee may take any other action deemed proper by the Trustee which is
not inconsistent with such direction.
Prior to taking any action or following any direction pursuant to
this Section 6.05, the Trustee shall be entitled to indemnification from such
Holders satisfactory to it in its sole discretion against any fees, loss,
liability, cost or expense caused by taking such action or following such
direction.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this
Indenture, the Securities or any Subsidiary Guarantee unless
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of the
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 30 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 30-day period the Holder or Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Securityholder may not use this Indenture to prejudice the rights
of another Securityholder or to obtain a preference or priority over such other
Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal of, premium and interest on a
Security, on or after the respec-
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tive due dates expressed in such Security, or to bring suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal, premium or interest
specified in clause (1) or (2) of Section 6.01 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities for the whole amount
of principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per annum
borne by the Securities and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents and take such other actions as it may determine in its reasonable
discretion to be necessary or advisable (including participating as a member of
any creditors committee acting in the matter) in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, legal
fees, disbursements and advances of the Trustee, its agents, nominees,
custodians, counsel, accountants and experts) and the Securityholders allowed in
any judicial proceedings relating to the Company, its creditors or its property
and shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings is hereby authorized by each
Securityholder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, legal fees, disbursements and advances of the Trustee,
its agents, nominees, custodians and counsel, and any other amounts due the
Trustee under Section 7.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this
Article Six, it shall pay out the money or property in the following order,
subject to the Intercreditor Agreement:
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First: without duplication, to the Trustee for amounts owing
under Section 7.07;
Second: if the Holders are forced to proceed against the
Company, a Guarantor or any other obligor on the Securities directly
without the Trustee, to Holders for their collection costs;
Third: subject to Article Twelve, to Holders for amounts due
and unpaid on the Securities for principal, premium and interest,
ratably, without preference or priority of any kind, according to
the amounts due and payable on the Securities for principal, premium
and interest, respectively; and
Fourth: to the Company or any Guarantors, as their respective
interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Securityholders pursuant to this Section
6.10.
SECTION 6.11. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security is registered at the close of business on the Record
Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on such
Record Date by virtue of having been such Holder; and such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in
subsection (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities are registered at the close
of business on a special Record Date (the "Special Record Date") for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. 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 deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
subsection provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment
and
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not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date. In the name and at the expense of the Company,
the Trustee shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective predecessor securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
subsection (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Company has caused the Securities to be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this subsection, such payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 6.12. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Securities.
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ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default actually known to a Responsible Officer
of the Trustee has occurred and is continuing, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture and use the same degree
of care and skill in its exercise as a prudent Person would exercise or use
under the circumstances in the conduct of its own affairs. Subject to such
provisions, the Trustee shall be under no obligation to exercise any of its
rights or powers under this Indenture at the request of any of the Holders of
Securities, unless they shall have offered to the Trustee security and indemnity
satisfactory to it in its sole discretion.
(b) Except during the continuance of an Event of Default actually
known to a Responsible Officer of the Trustee:
(1) The Trustee need perform only those duties as are specifically
set forth herein and no others and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions and such
other documents delivered to it pursuant to Section 11.04 hereof 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 (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Trustee, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
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(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 6.05.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that repayment of such
funds is not assured to it or it does not receive an indemnity satisfactory to
it in its sole discretion against such risk, liability, loss, fee or expense
which might be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to this Section 7.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting 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 and an Opinion of Counsel, which shall
conform to the provisions of Section 11.05. The Trustee shall not be
liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys, agents,
custodians and nominees and shall not be responsible for the misconduct
or negligence of any attorney, agent, custodian or nominee (other than
such a person who is an employee of the Trustee) 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 reasonably believes to be
authorized or within its rights or powers.
(e) The Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and complete
authorization and protection
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from liability in respect of any action taken, omitted or suffered by
it under this Indenture, in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the fees, costs, expenses and
liabilities which may be incurred therein or thereby.
(g) Except with respect to Section 4.01, the Trustee shall not
have any duty as to inquire as to the performance by the Company of its
covenants or obligations under this Indenture. The Trustee shall not be
deemed to have notice or any knowledge of any matter (including without
limitation defaults or events of default) unless a Responsible Officer
assigned to and working in the Trustee's Corporate Trust Department has
actual knowledge thereof or unless written notice thereof is received
by the Trustee, attention: Corporate Trust Department, and such notice
references the Securities generally, the Company or this Indenture.
(h) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right
to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
(i) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, its
Subsidiaries, any Guarantors and their respective Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11 of this
Indenture as well as the provisions of the TIA.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities or any money paid to the Company or
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upon the Company's direction under any provision of this Indenture, and it shall
not be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Securities (including without
limitation any preliminary or final offering memorandum) or any statement in the
Securities other than the Trustee's certificate of authentication. The Trustee
shall not be accountable for the use or application of any money received by any
Paying Agent other than the Trustee. The Trustee makes no representations with
respect to the effectiveness or adequacy of this Indenture. The Trustee shall
not be responsible for independently ascertaining or maintaining such validity,
if any, and shall be fully protected in relying upon certificates and opinions
delivered to it in accordance with the terms of this Indenture.
SECTION 7.05. Notice of Default.
If a Default or an Event of Default occurs and is continuing
and a Responsible Officer of the Trustee receives actual notice of such event,
the Trustee shall mail to each Securityholder, as their names and addresses
appear on the Securityholder list described in Section 2.05, notice of the
uncured Default or Event of Default within 90 days after the Trustee receives
such notice (or 30 days in the case of a Default or Event of Default specified
in the following sentence). Except in the case of a Default or an Event of
Default in payment of principal of, premium or interest on, any Security,
including the failure to make payment on (i) the Change of Control Payment Date
pursuant to a Change of Control Offer or (ii) the Excess Proceeds Offer Payment
Date pursuant to an Excess Proceeds Offer, the Trustee may withhold the notice
if and so long as the board of directors, the executive committee, or a trust
committee of directors, of the Trustee in good faith determines that withholding
the notice is in the interest of the Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
This Section 7.06 shall not be operative as a part of this
Indenture until this Indenture is qualified under the TIA, and, until such
qualification, this Indenture shall be construed as if this Section 7.06 were
not contained herein.
Within 60 days after each May 15 of each year beginning with
2004, the Trustee shall, to the extent that any of the events described in TIA
Section 313(a) occurred within the previous twelve months, but not otherwise,
mail to each Securityholder a brief report dated as of such May 15 that complies
with TIA Section 313(a). The Trustee also shall comply with TIA SectionSection
313(b), 313(c) and 313(d).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the Commission and
each securities exchange, if any, on which the Securities are listed.
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The Company shall notify a Responsible Officer of the Trustee
if the Securities become listed on any securities exchange or of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity.
(a) The Company shall pay to the Trustee from time to time
such compensation for its services hereunder as the Company and the Trustee
shall from time to time agree in writing. 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
disbursements, expenses and advances (including reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for its
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, legal fees, disbursements and expenses of
the Trustee's agents, accountants, experts, nominees, custodians and counsel and
any taxes or other expenses incurred by a trust created pursuant to Section
8.01.
(b) The Company shall indemnify each of the Trustee, its
directors, officers and employees and each predecessor Trustee for, and hold
them harmless against, any loss, liability or expense incurred by the Trustee,
without negligence or bad faith on its part arising out of or in connection with
the acceptance and administration of this trust and its duties under this
Indenture, including the reasonable expenses and attorneys' fees of defending
itself against any claim of liability arising hereunder. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity. However, the failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee shall cooperate in the defense (and may
employ its own counsel) at the Company's expense. The Company need not pay for
any settlement made without its written consent, which consent shall not be
unreasonably withheld or delayed. The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee as a result of
the violation of this Indenture by the Trustee if such violation arose from the
Trustee's negligence or bad faith.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (5) or (6) of Section 6.01 occurs, the
expenses (including the reasonable fees and expenses of its agents and counsel)
and the compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to constitute
expenses of administration under any Bankruptcy Law. The Company's obligations
under this Section 7.07 and any claim arising hereunder shall survive
termination of this Indenture, the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eight and any
rejection or termination under any Bankruptcy Law.
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SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company
in writing. The Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Company and the Trustee in
writing and may appoint a successor Trustee with the Company's consent. The
Company may remove the Trustee if
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes legally incapable of acting with
respect to its duties hereunder.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the Securities may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture; provided, however, that no Trustee under this Indenture shall be
liable for any act or omission of any successor Trustee. A successor Trustee
shall mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee (at the
expense of the Company), the Company or the Holders of at least 10% in principal
amount of the outstanding Securities may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee and the Company shall pay to any such
replaced or removed Trustee all amounts owed under Section 7.07 upon such
replacement or removal.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any Securities
shall have been authenticated, but not delivered, by the Trustee then in office,
any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA Sections 310(a)(1) and 310(a)(5). The Trustee shall have a
combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities, or certificates of interest or participation in other securities, of
the Company are outstanding, if the requirements for such exclusion set forth in
TIA Section 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee, in its capacity as Trustee hereunder, shall
comply with TIA Section 311(a), excluding any creditor relationship listed in
TIA Section 311(b). A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option and at any time, with
respect to the Securities, elect to have either paragraph (b) or paragraph (c)
below applied to the outstanding Securities upon compliance with the conditions
set forth in paragraph (d).
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(b) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (b), the Company shall be deemed to have
been released and discharged from its obligations with respect to the
outstanding Securities on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such 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 the Sections and matters
under this Indenture referred to in (i) and (ii) below, and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned, except for the following, which shall survive
until otherwise terminated or discharged hereunder: (i) the rights of the
Holders of outstanding Securities to receive payments in respect of the
principal of, premium, if any, and interest on such Securities when such
payments are due, (ii) the Company's obligations to issue temporary Securities,
register the transfer or exchange of any Securities, replace mutilated,
destroyed, lost or stolen Securities and maintain an office or agency for
payments in respect of the Securities, (iii) the rights, powers, trusts, duties
and immunities of the Trustee and the Company's obligations in connection
therewith and (iv) the Legal Defeasance provisions of this Indenture. The
Company may exercise its option under this paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) below with respect to the
Securities.
(c) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Company shall be released and
discharged from its obligations under any covenant contained in Article Five and
in Sections 4.03 through 4.21 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 to be not
"outstanding" for the purpose 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. For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Securities, the Company and any Guarantor may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01(3), nor shall any event referred to in Section 6.01(4) or (7)
thereafter constitute a Default or an Event of Default thereunder but, except as
specified above, the remainder of this Indenture and such Securities shall be
unaffected thereby.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Securities:
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(1) The Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holder pursuant to an irrevocable trust
and security agreement in form and substance reasonably satisfactory to
the Trustee, U.S. Legal Tender or direct non-callable obligations of,
or non-callable obligations guaranteed by, the United States of America
for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged ("U.S. Government
Obligations") or a combination thereof, maturing as to principal and
interest in such amounts and at such times as are sufficient, without
consideration of the reinvestment of such interest and principal and
after payment of all federal, state and local taxes or other charges or
assessments in respect thereof payable by the Trustee, in the opinion
of a nationally recognized firm of Independent public accountants,
selected by the Company, expressed in a written certification thereof
(in form and substance reasonably satisfactory to the Trustee)
delivered to the Trustee, to pay the principal of, premium, if any, and
interest on all the outstanding Securities on the dates on which any
such payments are due and payable in accordance with the terms of this
Indenture and of the Securities;
(2) Such deposits shall not cause the Trustee to have a
conflicting interest as defined in and for purposes of the TIA;
(3) The Trustee shall have received Officers' Certificates
stating that 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 or, insofar as Section 6.01(5) or (6) is
concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period);
(4) The Trustee shall have received Officers' Certificates
stating that such deposit will not result in a Default under this
Indenture or a breach or violation of, or constitute a default under,
any other material instrument or agreement to which the Company or any
of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(5) (i) In the event the Company elects paragraph (b) hereof,
the Company shall deliver to the Trustee an Opinion of Counsel in the
United States, in form and substance reasonably satisfactory to the
Trustee confirming that (A) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (B) since
the Issue Date, there has been a change in the applicable federal
income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, Holders of the Securities
will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and the defeasance contemplated hereby and
will be subject to federal income taxes on the same amounts, in the
same
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manner and at the same times as would have been the case if such
deposit and defeasance had not occurred, or (ii) in the event the
Company elects paragraph (c) hereof, the Company shall deliver to the
Trustee an Opinion of Counsel in the United States, in form and
substance reasonably satisfactory to the Trustee, confirming that,
Holders of the Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and the
defeasance contemplated hereby and will be subject to federal income
tax on the same amounts and in the same manner and at the same times as
would have been the case if such deposit and defeasance had not
occurred;
(6) The Company shall have delivered to the Trustee an Opinion
of Counsel stating that as a result of the Legal Defeasance or Covenant
Defeasance, neither the Trustee nor the trust have become or are deemed
to have become an "investment company" under the Investment Company Act
of 1940, as amended;
(7) The Company shall have delivered to the Trustee an
Officers' Certificate, in form and substance reasonably satisfactory to
the Trustee, stating that the deposit under clause (1) was not made by
the Company, a Guarantor or any Subsidiary of the Company with the
intent of defeating, hindering, delaying or defrauding any other
creditors of the Company, a Guarantor, or any Subsidiary of the Company
or others;
(8) The Company shall have delivered to the Trustee an Opinion
of Counsel, in form and substance reasonably satisfactory to the
Trustee, to the effect that, after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(9) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance contemplated by
this Section 8.01 have been complied with; provided, however, that no
deposit under clause (1) above shall be effective to terminate the
obligations of the Company under the Securities or this Indenture prior
to 90 days following any such deposit; and
(10) The Company shall have paid all amounts owing to the
Trustee pursuant to Section 7.07.
Notwithstanding the foregoing, the Opinion of Counsel required
by paragraph (5) above need not be delivered if all Securities not theretofore
delivered to the Trustee for cancellation (i) have become due and payable, (ii)
will become due and payable on the maturity date for the securities within one
year, or (iii) are to be called for redemption within
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one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company.
In the event all or any portion of the Securities are to be
redeemed through such irrevocable trust, the Company must make arrangements
satisfactory to the Trustee, at the time of such deposit, for the giving of the
notice of such redemption or redemptions by the Trustee in the name and at the
expense of the Company.
SECTION 8.02. Satisfaction and Discharge.
In addition to the Company's rights under Section 8.01, the
Company may terminate all of its obligations under this Indenture (subject to
Section 8.03) when
(1) all Securities theretofore authenticated and delivered
(other than Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.07 and
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company or thereafter
repaid to the Company from such trust) have been delivered to the
Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee
for cancellation (except lost, stolen or destroyed Securities which
have been replaced or paid) have (i) become due and payable, (ii) will
become due and payable at their stated maturity within one year or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee, and the Company has
irrevocably deposited or caused to be deposited with the Trustee funds
in an amount sufficient to pay and discharge the entire Indebtedness on
the Securities not theretofore delivered to the Trustee for
cancellation, for principal of, premium, if any, and interest on the
Securities to the date of deposit together with irrevocable
instructions from the Company directing the Trustee to apply such funds
to the payment thereof at maturity or redemption, as the case may be;
and
(3) the Company and/or the Guarantors have paid or caused to
be paid all other sums payable under this Indenture; and
(4) there exists no Default or Event of Default under this
Indenture; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the satisfaction and discharge
of this Indenture have been complied with; and
(6) the Company shall have paid all amounts owing to the
Trustee pursuant to Section 7.07.
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SECTION 8.03. Survival of Certain Obligations.
Notwithstanding the satisfaction and discharge of this
Indenture and of the Securities referred to in Section 8.01 or 8.02, the
respective obligations of the Company and the Trustee under Sections 2.02, 2.03,
2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13, 4.01, 4.02 and 6.07, Article Seven and
Sections 8.05, 8.06 and 8.07 shall survive until the Securities are no longer
outstanding, and thereafter the obligations of the Company and the Trustee under
Sections 7.07, 8.05, 8.06 and 8.07 shall survive. Nothing contained in this
Article Eight shall abrogate any of the rights, obligations or duties of the
Trustee under this Indenture.
SECTION 8.04. Acknowledgment of Discharge by Trustee.
Subject to Section 8.07, after (i) the conditions of Section
8.01 or 8.02 have been satisfied, (ii) the Company has paid or caused to be paid
all other sums payable hereunder by the Company, and (iii) the Company has
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent referred to in clause (i) above
relating to the satisfaction and discharge of this Indenture have been complied
with, the Trustee upon written request shall acknowledge in writing the
discharge of the Company's obligations under this Indenture except for those
surviving obligations specified in Section 8.03.
SECTION 8.05. Application of Trust Assets.
The Trustee shall hold any U.S. Legal Tender or U.S.
Government Obligations deposited with it in the irrevocable trust established
pursuant to Section 8.01. The Trustee shall apply the deposited U.S. Legal
Tender or the U.S. Government Obligations, together with earnings thereon,
through the Paying Agent, in accordance with this Indenture and the terms of the
irrevocable trust agreement established pursuant to Section 8.01, to the payment
of principal of and interest on the Securities. The U.S. Legal Tender or U.S.
Government Obligations so held in trust and deposited with the Trustee in
compliance with Section 8.01 shall not be part of the trust estate under this
Indenture, but shall constitute a separate trust fund for the benefit of all
Holders entitled thereto.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 8.01 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
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SECTION 8.06. Repayment to the Company or Guarantors;
Unclaimed Money.
Subject to Sections 7.07 and 8.01 and to applicable laws
relating to escheat, the Trustee shall promptly pay to the Company, or if
deposited with the Trustee by any Guarantor, to such Guarantor, upon receipt by
the Trustee of an Officers' Certificate, any excess money, determined in
accordance with Section 8.01, held by it at any time. The Trustee and the Paying
Agent shall pay to the Company or any Guarantor, as the case may be, upon
receipt by the Trustee or the Paying Agent, as the case may be, of an Officers'
Certificate, any money held by it for the payment of principal, premium, if any,
or interest that remains unclaimed for two years after payment to the Holders is
required; provided, however, that the Trustee and the Paying Agent before being
required to make any payment may, but need not, 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 not be
less than 30 days from the date of such mailing or publication and shall be at
least two years after the date such money held by the Trustee for the payment of
principal, premium, if any, or interest remains unclaimed), any unclaimed
balance of such money then remaining will be repaid to the Company. After
payment to the Company or any Guarantor, as the case may be, Securityholders
entitled to such money must look solely to the Company for payment as general
creditors unless an applicable abandoned property law designates another Person,
and all liability of the Trustee or Paying Agent with respect to such money
shall thereupon cease.
SECTION 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with this Indenture 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, then and only then the Company's and each Guarantor's, if any,
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had been made pursuant to this Indenture until
such time as the Trustee is permitted to apply all such money or U.S. Government
Obligations in accordance with this Indenture; provided, however, that if the
Company or the Guarantors, as the case may be, have made any payment of
principal of, premium, if any, or interest on any Securities because of the
reinstatement of their obligations, the Company or the Guarantors, as the case
may be, shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
The Company and any Guarantors (when authorized by Board
Resolutions), and the Trustee, together, may amend or supplement this Indenture
without notice to or consent of any Securityholder
(1) to cure any ambiguity, defect or inconsistency;
(2) to evidence the succession in accordance with Article Five
hereof of another Person to the Company or a Guarantor and the
assumption by any such successor of the covenants of the Company or a
Guarantor herein and in the Securities or a Subsidiary Guarantee, as
the case may be;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(4) to make any other change that does not materially
adversely affect the rights of any Securityholders hereunder;
(5) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA; or
(6) to add or release any Guarantor pursuant to the terms of
this Indenture;
provided that each of the Company and any Guarantors has delivered to the
Trustee an Opinion of Counsel and an Officers' Certificate, each stating that
such amendment or supplement complies with the provisions of this Section 9.01;
and provided, further, that such amendment or supplement does not, in the
opinion of the Trustee, adversely affect the rights of any of the Holders in any
material respect. In formulating its opinion on such matters, the Trustee will
be entitled to rely on such evidence as it deems appropriate, including, without
limitation, solely on an Opinion of Counsel.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and any Guarantors (when
authorized by Board Resolutions) and the Trustee, together, with the written
consent of the Holder or Holders of at least a majority in aggregate principal
amount of the then outstanding Securities, may amend or supplement this
Indenture, the Securities and any Subsidiary Guarantees without notice to any
other Securityholders. Subject to Section 6.07, the Holder or Holders of a
majority
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in aggregate principal amount of the then outstanding Securities may waive
compliance by the Company with any provision of this Indenture or the Securities
without notice to any other Securityholder (including, without limitation, the
provisions of Section 4.22). Without the consent of each Securityholder
affected, however, no amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may
(1) reduce the principal amount of Securities whose Holders
must consent to an amendment, supplement or waiver of any provision of
this Indenture, the Securities or any Subsidiary Guarantees;
(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 fixed maturity of any Securities; or change the date on
which any Securities may be subject to redemption, or reduce the
redemption price therefor;
(4) make any Securities payable in money other than that
stated in the Securities;
(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 Securities on or after the stated due date
thereof or to bring suit to enforce such payment, or permitting Holders
of a majority in principal amount of the then outstanding Securities to
waive Defaults or Events of Default;
(6) amend, change or modify in any material respect the
obligations of the Company to make and consummate a Change of Control
Offer after the occurrence of a Change of Control or make and
consummate a Net Proceeds Offer with respect to any Asset Sale that has
been consummated or modify any of the provisions or definitions with
respect thereto;
(7) modify or change any provision of this Indenture or the
related definitions affecting the ranking of the Securities or any
Subsidiary Guarantee in a manner which adversely affects the Holders;
(8) modify the provisions of Section 4.19, 6.04, 6.07 or this
Section 9.02 in any manner adverse to a Holder of Securities; or
(9) release any Guarantor from any of its obligations under
its Subsidiary Guarantee or this Indenture otherwise than in accordance
with the terms of this Indenture.
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It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 9.03. Compliance with TIA.
From the date on which this Indenture is qualified under the
TIA, every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of his Security by notice to the
Trustee or the Company received before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then notwithstanding
the last sentence of the immediately preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only those
Persons, shall be entitled to revoke any consent previously given, whether or
not such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (1) through (11) of Section 9.02, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security; provided that any
such waiver shall not impair or affect the right of any Holder to receive
payment of principal of and interest on a Security, on or after the respective
due dates expressed
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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.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the 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 and effect of such amendment, supplement or waiver.
SECTION 9.06. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided that the Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate,
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and constitutes the legal, valid and binding obligation of the Company
and any Guarantor enforceable in accordance with its terms (subject to customary
exceptions) and, in the case of any supplemental indenture required by Section
4.18, constitutes a guarantee as defined therein. Such Opinion of Counsel shall
be at the expense of the Company, and the Trustee shall have a lien under
Section 7.07 for any such expense.
ARTICLE TEN
GUARANTEE
SECTION 10.01. Unconditional Guarantee.
Each Guarantor agrees to unconditionally, jointly and
severally, guarantee 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, premium, if any, 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
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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
10.03. Each Guarantor agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Securities or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Securities with respect to any provisions
hereof or thereof, 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 Guarantor 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 its Subsidiary Guarantee will not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and each Subsidiary Guarantee. If any Securityholder or the Trustee is
required by any court or otherwise to return to the Company, any Guarantor or
any custodian, trustee, liquidator or other similar official acting in relation
to the Company or any Guarantor, any amount paid by the Company or any Guarantor
to the Trustee or such Securityholder, each Subsidiary Guarantee to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor further agrees that, as between each 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 Six for
the purposes of each Subsidiary 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 Six, such obligations (whether or not due and payable)
shall forthwith become due and payable by each Guarantor for the purpose of its
Subsidiary Guarantee.
SECTION 10.02. Severability.
In case any provision of a Subsidiary 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 10.03. Release of a Guarantor.
In the event of either (i) the issuance or sale of Capital
Stock of a Guarantor in compliance with this Indenture which results in the
Guarantor no longer being a Subsidiary of the Company, (ii) a Guarantor becoming
an Unrestricted Subsidiary or (iii) the sale of all or substantially all of the
assets of a Guarantor pursuant to an Asset Sale which complies with the
provisions of Section 4.12, the applicable Guarantor's Subsidiary Guarantee will
be released.
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The Trustee shall deliver an appropriate instrument 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 10.03. Any Guarantor not so released remains liable for the
full amount of principal of and interest on the Securities as provided in this
Article Ten.
SECTION 10.04. Limitation of a Guarantor's Liability.
Each Guarantor and, by its acceptance hereof, each Holder
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Subsidiary Guarantee not constitute a
fraudulent transfer or conveyance for purposes of any 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 each Guarantor irrevocably agree that the obligations of each Guarantor
under its Subsidiary Guarantee shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Subsidiary Guarantee, or pursuant to Section 10.05, result
in the obligations of such Guarantor under its Subsidiary Guarantee not
constituting such fraudulent transfer or conveyance.
SECTION 10.05. Contribution.
In order to provide for just and equitable contribution among
the Guarantors, the Guarantors agree, inter se, that in the event any payment or
distribution is made by any Guarantor (a "Funding Guarantor") under its
Subsidiary Guarantee, such Funding Guarantor shall be entitled to a contribution
from all other Guarantors in a pro rata amount based on the Adjusted Net Assets
of each Guarantor (including the Funding Guarantor) for all payments, damages
and expenses incurred by that Funding Guarantor in discharging the Company's
obligations with respect to the Securities or any other Guarantor's obligations
with respect to its Subsidiary Guarantee. "Adjusted Net Assets" of a Guarantor
at any date shall mean the lesser of the amount by which (x) the fair value of
the property of such Guarantor exceeds the total amount of liabilities,
including, without limitation, contingent liabilities (after giving effect to
all other fixed and contingent liabilities incurred or assumed on such date),
but excluding liabilities under the Subsidiary Guarantee of such Guarantor at
such date and (y) the present fair salable value of the assets of such Guarantor
at such date exceeds the amount that will be required to pay the probable
liability of such Guarantor on its debts (after giving effect to all other fixed
and contingent liabilities incurred or assumed on such date), excluding debt in
respect of the Subsidiary Guarantee of such Guarantor, as they become absolute
and matured.
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SECTION 10.06. Waiver of Subrogation.
Until all Subsidiary Guarantee Obligations are paid in full,
each Guarantor hereby irrevocably waives any claims or other rights which it may
now or hereafter acquire against the Company that arise from the existence,
payment, performance or enforcement of such Guarantor's obligations under its
Subsidiary Guarantee 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 Guarantor in
violation of the preceding sentence and the Securities shall not have been paid
in full, such amount shall be deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the Securities,
and shall forthwith be paid to the Trustee for the benefit of such Holders to be
credited and applied upon the Securities, in accordance with the terms of this
Indenture. Each 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 10.06 is knowingly made in contemplation of
such benefits.
SECTION 10.07. Execution of Subsidiary Guarantees.
To evidence its guarantee to the Securityholders set forth in
this Article Ten, each Guarantor shall execute a Subsidiary Guarantee in
substantially the form of Exhibit G attached hereto, which shall be endorsed on
each Security ordered to be authenticated and delivered by the Trustee. Each
Guarantor agrees that its Subsidiary Guarantee set forth in this Article Ten
shall remain in full force and effect notwithstanding any failure to endorse on
each Security a notation of such Subsidiary Guarantee as well as a supplemental
indenture as required by Section 4.18. Each such Subsidiary Guarantee shall be
signed on behalf of each Guarantor by two Officers, or an Officer and a
secretary, treasurer, controller or an assistant secretary of the Guarantor or
one Officer shall sign and one Officer or a secretary, treasurer, controller or
an assistant secretary of the Guarantor (each of whom shall, in each case, have
been duly authorized by all requisite corporate actions) shall attest to such
Subsidiary Guarantee prior to the authentication of the Security on which it is
endorsed, and the delivery of such Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of such
Subsidiary Guarantee on behalf of such Guarantor. Such signatures upon the
Subsidiary Guarantee may be by manual or facsimile signature of such officers
and may be imprinted or otherwise reproduced on the Subsidiary Guarantee, and in
case any such officer who shall have signed the Subsidiary Guarantee shall cease
to be such officer before the Security on which such Subsidiary Guarantee is
endorsed shall have been authenticated and delivered by the Trustee or disposed
of by the Company, such Security nevertheless may be authenticated
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and delivered or disposed of as though the person who signed the Subsidiary
Guarantee had not ceased to be such officer of the Guarantor.
SECTION 10.08. Waiver of Stay, Extension or Usury Laws.
Each 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 Guarantor
from performing its Subsidiary 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 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 ELEVEN
MISCELLANEOUS
SECTION 11.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or
conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.
SECTION 11.02. Notices.
Any notices or other communications required or permitted
hereunder shall be in writing, and shall be sufficiently given if made by hand
delivery, by telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company or a Guarantor:
Tenneco Automotive Inc.
500 North Field Drive
Lake Forest, Illinois 60045
Attention: Kenneth R. Trammel
Chief Financial Officer
Facsimile: (847) 482-5180
with a copy to:
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Timothy R. Donovan
General Counsel
Tenneco Automotive Inc.
500 North Field Drive
Lake Forest, Illinois 60045
Facsimile: (847) 482-5040
if to the Trustee:
The Bank of New York Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Facsimile: (312) 827-8542/8543
Each of the Company and the Trustee by written notice to each
other such Person may designate additional or different addresses for notices to
such Person. Any notice or communication to the Company or a Guarantor or the
Trustee shall be deemed to have been given or made as of the date so delivered
if personally delivered; when receipt is acknowledged, if telecopied; and five
(5) calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall
be mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a 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 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture,
the Securities or any Subsidiary Guarantees. The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA Section 312(c).
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SECTION 11.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee at the request of the Trustee:
(1) an Officers' Certificate, in form and substance
satisfactory to the Trustee, stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.08, shall include
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make reasonable
rules for its functions.
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SECTION 11.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made
on the next succeeding day that is a Business Day with the same force and effect
as if made on such payment date.
SECTION 11.08. Governing Law.
THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES WILL 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 LAW OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY. Each of the parties hereto hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Indenture, and the Securities to which it
is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or
that such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar from of mail), postage
prepaid, to such person at its address referred to in Section 11.02 or
at such other address of which notice shall have been given pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall
limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
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SECTION 11.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of any of the Company or any of its Subsidiaries or any
Guarantor. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 11.10. No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as
such, of the Company or any of its Subsidiaries or any Guarantor shall not have
any liability for any obligations of the Company or any Guarantor under the
Securities, this Indenture or any Subsidiary Guarantee or for any claim based
on, in respect of or by reason of such obligations or their creations. Each
Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Securities.
SECTION 11.11. Successors.
All agreements of the Company and any Guarantors in this
Indenture, the Securities and any Subsidiary Guarantees shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture.
Each signed copy or counterpart shall be an original, but all of them together
shall represent the same agreement.
SECTION 11.13. Severability.
In case any one or more of the provisions in this Indenture,
in the Securities or in any Subsidiary Guarantee shall be held invalid, illegal
or unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 11.14. Table of Contents, Headings, Etc.
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, and are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
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ARTICLE TWELVE
SUBORDINATION
SECTION 12.01. Securities Subordinated to Senior Debt; Guarantees Subordinated
to Guarantor Senior Debt.
The Company and each Guarantor covenant and agree, and each
Holder of the Securities, by its acceptance thereof, likewise covenants and
agrees, that all Securities and Guarantees shall be issued subject to the
provisions of this Article Twelve; and each Person holding any Security, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees that the payment of all Obligations on the Securities and Guarantees
by the Company and any Guarantors shall, to the extent and in the manner herein
set forth, be subordinated and junior in right of payment to the prior payment
in full in cash or Cash Equivalents (or such payment shall be duly provided for
to the satisfaction of the holders of the Senior Debt and Guarantor Senior Debt,
as the case may be) of all Obligations on the Senior Debt and Guarantor Senior
Debt, as the case may be; that the subordination is for the benefit of, and
shall be enforceable directly by, the holders of Senior Debt and Guarantor
Senior Debt, as the case may be, and that each holder of Senior Debt and
Guarantor Senior Debt, as the case may be, whether now outstanding or hereafter
created, incurred, assumed or guaranteed shall be deemed to have acquired Senior
Debt and Guarantor Senior Debt, as the case may be, in reliance upon the
covenants and provisions contained in this Indenture.
SECTION 12.02. No Payment on Securities in Certain Circumstances.
(a) If any default occurs and is continuing in the payment
when due, whether at maturity, upon any redemption, by declaration or otherwise,
of any principal of, interest on, unpaid drawings for letters of credit issued
in respect of, regularly accruing fees with respect to, or other Obligations
with respect to, any Senior Debt, no payment or distribution of any kind or
character shall be made by or on behalf of the Company or any Guarantor with
respect to any Obligations on the Securities or the Guarantees or to acquire,
redeem or defease any of the Securities for cash or property or otherwise. In
addition, if any other event of default occurs and is continuing with respect to
any Designated Senior Debt, as such event of default is defined in the
instrument creating or evidencing such Designated Senior Debt, permitting the
holders of such Designated Senior Debt then outstanding to accelerate the
maturity thereof and if the Representative for such Designated Senior Debt gives
written notice of the event of default to the Trustee (a "Default Notice"), then
neither the Company, any Guarantor nor any other Person on its behalf shall (x)
make any payment or distribution of any kind or character with respect to any
Obligations on the Securities or the Guarantees or (y) acquire, redeem or
defease any of the Securities for cash or property or otherwise for a period of
time (the "Blockage Period") terminating on the earliest to occur of (1) the
date all
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events of default with respect to the applicable issue of Designated Senior Debt
have been cured or waived or shall have ceased to exist and the Company and the
Trustee receive written notice thereof from the Representative for the
applicable issue of Designated Senior Debt, (2) the Trustee receives written
notice from the Representative for the applicable issue of Designated Senior
Debt terminating the Blockage Period, or the benefits of this sentence are
waived by the Representative for the applicable issue of Designated Senior Debt,
(3) the applicable issue of Designated Senior Debt is discharged or paid in full
in cash or Cash Equivalents or (4) the expiration of the 180-day consecutive
period commencing on the date of the giving of such Default Notice. Upon the
termination of such Blockage Period, the Company shall (to the extent not
otherwise prohibited by this Article Twelve) promptly resume making all payments
on the Securities, including all payments not made during such Blockage Period.
Notwithstanding anything herein to the contrary, in no event shall a Blockage
Period extend beyond 179 days from the date the Default Notice was delivered to
the Trustee and only one such Blockage Period may be commenced within any 360
consecutive days. No event of default which existed or was continuing on the
date of the commencement of any Blockage Period with respect to the Designated
Senior Debt shall be, or be made, the basis for commencement of a second
Blockage Period by the Representative of such Designated Senior Debt, whether or
not after a period of 360 consecutive days, unless such event of default shall
have been cured or waived or ceased to exist for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period commencing after the date of
commencement of such Blockage Period that, in either case, would give rise to an
event of default pursuant to any provisions of the Designated Senior Debt under
which an event of default previously existed or was continuing shall constitute
a new event of default for this purpose).
(b) In the event that, notwithstanding the foregoing, any
payment or distribution shall be received by the Trustee or any Holder when such
payment or distribution is prohibited by Section 12.02(a), such payment or
distribution shall be held in trust for the benefit of, and shall be paid over
or delivered to, the holders of Senior Debt or Guarantor Senior Debt, as the
case may be (pro rata to such holders on the basis of the respective amount of
Senior Debt or Guarantor Senior Debt, as the case may be, held by such holders),
or their Representative as their respective interests may appear. The Trustee
shall be entitled to conclusively rely on information regarding amounts then due
and owing on the Senior Debt or Guarantor Senior Debt, as the case may be, if
any, received from the holders of Senior Debt or Guarantor Senior Debt (or their
Representatives), as the case may be, or, if such information is not received
from such holders or their Representatives, from the Company. The Company shall
keep complete and accurate records of the names, addresses and amounts owed to
all holders of Senior Debt and Guarantor Senior Debt, shall produce such records
to the Trustee upon request and the Trustee shall be absolutely protected in
relying on such records in paying over or delivering moneys pursuant to this
Article Twelve.
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Nothing contained in this Article Twelve shall limit or
compromise the right of the Trustee or the Holders to take any action to
accelerate the maturity of the Securities pursuant to Section 6.02 or to pursue
any rights or remedies hereunder or otherwise; provided, however, that all
Senior Debt and Guarantor Senior Debt of the applicable Guarantor thereafter due
or declared to be due shall first be paid in full in cash or Cash Equivalents
before the Holders are entitled to receive any payment or distribution of any
kind or character with respect to Obligations on the Securities or the Guarantee
of the applicable Guarantor, as the case may be.
SECTION 12.03. Payment Over of Proceeds upon Dissolution, Etc.
(a) Upon any payment or distribution of assets or securities
of the Company or a Guarantor of any kind or character, whether in cash,
property or securities to creditors upon any liquidation, dissolution,
winding-up, reorganization, assignment for the benefit of creditors or
marshaling of assets of the Company or such Guarantor or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
the Company or its property or such Guarantor or its property, whether voluntary
or involuntary, all Obligations due or to become due upon all Senior Debt or
Guarantor Senior Debt of such Guarantor, as the case may be, shall first be paid
in full in cash or Cash Equivalents, or such payment shall be duly provided for
to the satisfaction of the holders of Senior Debt or Guarantor Senior Debt of
such Guarantor, as the case may be, before any payment or distribution of any
kind or character is made on account of any Obligations on the Securities or the
Guarantee of such Guarantor, as the case may be, or for the acquisition,
redemption or defeasance of any of the Securities for cash or property or
otherwise. Upon any such dissolution, winding-up, liquidation, reorganization,
assignment, marshalling of assets, receivership or similar proceeding, any
payment or distribution of assets or securities of the Company or a Guarantor of
any kind or character, whether in cash, property or securities, to which the
Holders or the Trustee under this Indenture would be entitled, except for the
provisions hereof, shall be paid by the Company or such Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of Senior Debt or
Guarantor Senior Debt of such Guarantor, as the case may be (pro rata to such
holders on the basis of the respective amounts of Senior Debt or Guarantor
Senior Debt of such Guarantor, as the case may be, held by such holders), or
their respective Representatives, or to the trustee or trustees under any
indenture pursuant to which any of such Senior Debt or Guarantor Senior Debt of
such Guarantor, as the case may be, may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt or Guarantor
Senior Debt of such Guarantor, as the case may be, remaining unpaid until all
such Senior Debt or Guarantor Senior Debt of such Guarantor, as the case may be,
has been paid in full in cash or Cash Equivalents after giving effect to any
concurrent payment or distribution in cash or Cash Equivalents to or for the
holders of Senior Debt or Guarantor Senior Debt of such Guarantor, as the case
may be.
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(b) To the extent any payment of Senior Debt or Guarantor
Senior Debt (whether by or on behalf of the Company or a Guarantor, as proceeds
of security or enforcement of any right of setoff or otherwise) is declared to
be fraudulent or preferential, set aside or required to be paid to any receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law,
then, if such payment is recovered by, or paid over to, such receiver, trustee
in bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Debt or Guarantor Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
(c) In the event that, notwithstanding the foregoing, any
payment or distribution of assets or securities of the Company or a Guarantor of
any kind or character, whether in cash, property or securities, shall be
received by the Trustee or any Holder when such payment or distribution is
prohibited by Section 12.03(a), such payment or distribution shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt or Guarantor Senior Debt of such Guarantor, as the case may be (pro
rata to such holders on the basis of the respective amount of Senior Debt or
Guarantor Senior Debt of such Guarantor, as the case may be, held by such
holders), or their respective Representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt or Guarantor
Senior Debt of such Guarantor, as the case may be, may have been issued, as
their respective interests may appear, for application to the payment of Senior
Debt or Guarantor Senior Debt of such Guarantor, as the case may be, remaining
unpaid until all such Senior Debt or Guarantor Senior Debt of such Guarantor, as
the case may be, has been paid in full in cash or Cash Equivalents, after giving
effect to any concurrent payment or distribution to or for the holders of such
Senior Debt or Guarantor Senior Debt of such Guarantor, as the case may be.
(d) The consolidation of the Company with, or the merger of
the Company with or into, another corporation or the liquidation or dissolution
of the Company following the conveyance or transfer of all or substantially all
of its assets, to another corporation upon the terms and conditions provided in
Article Five hereof shall not be deemed a dissolution, winding-up, liquidation
or reorganization for the purposes of this Section if, in the event the Company
is not the surviving corporation, such other corporation shall, as a part of
such consolidation, merger, conveyance or transfer, assume the Company's
obligations hereunder in accordance with Article Five hereof.
SECTION 12.04. Payments May Be Paid Prior to Dissolution.
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) the Company, except under the conditions described
in Sections 12.02 and 12.03, from making payments at any time for the purpose of
making payments of principal of and interest on the Securities, or from
depositing with the Trustee any monies for such payments, or (ii) in the absence
of actual knowledge by the Trustee that a given payment would be pro-
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hibited by Section 12.02 or 12.03, the application by the Trustee of any monies
deposited with it for the purpose of making such payments of principal of, and
interest on, the Securities to the Holders entitled thereto unless at least one
Business Day prior to the date upon which such payment would otherwise become
due and payable, the Trustee shall have received the written notice provided for
in Section 12.02(a) or in Section 12.07. The Company shall give prompt written
notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of the Company.
SECTION 12.05. Subrogation.
Subject to the payment in full in cash or Cash Equivalents of
all Senior Debt and Guarantor Senior Debt, the Holders shall be subrogated to
the rights of the holders of Senior Debt and Guarantor Senior Debt to receive
payments or distributions of cash, property or securities of the Company and
such Guarantor applicable to the Senior Debt and Guarantor Senior Debt until the
Securities shall be paid in full; and, for the purposes of such subrogation, no
such payments or distributions to the holders of the Senior Debt and Guarantor
Senior Debt by or on behalf of the Company or any Guarantor or by or on behalf
of the Holders by virtue of this Article Twelve which otherwise would have been
made to the Holders shall, as between the Company or any Guarantor and the
Holders, be deemed to be a payment by the Company or any Guarantor to or on
account of the Senior Debt or Guarantor Senior Debt, as the case may be, it
being understood that the provisions of this Article Twelve are and are intended
solely for the purpose of defining the relative rights of the Holders, on the
one hand, and the holders of the Senior Debt or Guarantor Senior Debt, as the
case may be, on the other hand.
SECTION 12.06. Obligations of the Company Unconditional.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Securities or Guarantees is intended to or shall impair, as
among the Company, any Guarantor, their respective creditors other than the
holders of Senior Debt or Guarantor Senior Debt, and the Holders, the obligation
of the Company and any Guarantors, which is absolute and unconditional, to pay
to the Holders the principal of and any interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors of
the Company and any Guarantors other than the holders of any Senior Debt or
Guarantor Senior Debt, nor shall anything herein or therein prevent the Holders
or the Trustee on their behalf from exercising all remedies otherwise permitted
by applicable law upon default under this Indenture, subject to the rights, if
any, under this Article Twelve of the holders of Senior Debt or Guarantor Senior
Debt in respect of cash, property or securities of the Company or any Guarantor
received upon the exercise of any such remedy.
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SECTION 12.07. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of
any fact known to the Company which would prohibit the making of any payment or
distribution to or by the Trustee in respect of the Securities pursuant to the
provisions of this Article Twelve. Regardless of anything to the contrary
contained in this Article Twelve or elsewhere in this Indenture, the Trustee
shall not be charged with knowledge of the existence of any default or event of
default with respect to any Senior Debt or Guarantor Senior Debt or of any other
facts which would prohibit the making of any payment or distribution to or by
the Trustee unless and until the Trustee shall have received notice in writing
referencing this Indenture and the Notes from the Company, or from a holder of
Senior Debt or Guarantor Senior Debt or a Representative therefor, and, prior to
the receipt of any such written notice, the Trustee shall be entitled to assume
(in the absence of actual knowledge of a Responsible Officer to the contrary)
that no such facts exist.
In the event that the Trustee determines in good faith that
any evidence is required with respect to the right of any Person as a holder of
Senior Debt or Guarantor Senior Debt to participate in any payment or
distribution pursuant to this Article Twelve, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amounts of Senior Debt or Guarantor Senior Debt held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article Twelve, and if such evidence is not furnished the Trustee may defer
any payment to such Person pending judicial determination as to the right of
such person to receive such payment.
SECTION 12.08. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets or securities of
the Company or any Guarantor referred to in this Article Twelve, the Trustee,
subject to the provisions of Article Seven hereof, and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding-up, liquidation or
reorganization proceedings are pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, agent or other person making such
payment or distribution, delivered to the Trustee or the Holders, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt or Guarantor Senior Debt and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Twelve.
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SECTION 12.09. Trustee's Relation to Senior Debt or Guarantor Senior Debt.
The Trustee and any agent of the Company or the Trustee shall
be entitled to all the rights set forth in this Article Twelve with respect to
any Senior Debt or Guarantor Senior Debt which may at any time be held by it in
its individual capacity or any other capacity to the same extent as any other
holder of Senior Debt or Guarantor Senior Debt and nothing in this Indenture
shall deprive the Trustee or any such agent of any of its rights as such holder.
With respect to the holders of Senior Debt or Guarantor Senior
Debt, the Trustee undertakes to perform or to observe only such of its covenants
and obligations as are specifically set forth in this Article Twelve, and no
implied covenants or obligations with respect to the holders of Senior Debt or
Guarantor Senior Debt shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt or Guarantor Senior Debt.
Whenever a payment or distribution is to be made or a notice
given to holders or owners of Senior Debt or Guarantor Senior Debt, the payment
or distribution may be made and the notice may be given to their Representative,
if any.
SECTION 12.10. Subordination Rights Not Impaired by Acts or Omissions of the
Company or a Guarantor or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
or Guarantor Senior Debt to enforce subordination as provided herein shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or a Guarantor or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or a Guarantor
with the terms of this Indenture, regardless of any knowledge thereof which any
such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt or Guarantor Senior Debt may, at any time
and from time to time, without the consent of or notice to the Trustee or the
Holders, without incurring responsibility to the Trustee or the Holders and
without impairing or releasing the subordination provided in this Article Twelve
or the obligations hereunder of the Holders to the holders of the Senior Debt or
Guarantor Senior Debt, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Debt or Guarantor Senior Debt, or otherwise amend or supplement in
any manner Senior Debt or Guarantor Senior Debt, or any instrument evidencing or
securing the same or any agreement under which Senior Debt or Guarantor Senior
Debt is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Debt or
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Guarantor Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Senior Debt or Guarantor Senior Debt; and (iv) exercise
or refrain from exercising any rights against the Company or a Guarantor or any
other Person.
SECTION 12.11. Holders Authorize Trustee To Effectuate Subordination of
Securities.
Each Holder by its acceptance of the Securities authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt or
Guarantor Senior Debt and the Holders, the subordination provided in this
Article Twelve, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company or a Guarantor (whether in bankruptcy, insolvency,
receivership, reorganization or similar proceedings or upon an assignment for
the benefit of creditors or otherwise) tending towards liquidation of the
business and assets of the Company or a Guarantor, the filing of a claim for the
unpaid balance of its Securities and accrued interest in the form required in
those proceedings.
If the Trustee does not file a proper claim or proof of debt
in the form required in such proceeding prior to 30 days before the expiration
of the time to file such claim or claims, then the holders of the Senior Debt or
Guarantor Senior Debt or their Representative are hereby authorized to have the
right to file and are hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Debt or Guarantor
Senior Debt or their Representative to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee or the holders of Senior Debt or Guarantor
Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 12.12. This Article Twelve Not To Prevent Events of Default.
The failure to make a payment on account of principal of or
interest on the Securities by reason of any provision of this Article Twelve
will not be construed as preventing the occurrence of an Event of Default.
SECTION 12.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Twelve will apply to amounts due to
the Trustee pursuant to other Sections in this Indenture.
[Signature Pages Follow]
S-1
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
TENNECO AUTOMOTIVE INC.
By:
----------------------------------------
Name:
Title:
TENNECO AUTOMOTIVE OPERATING COMPANY INC.,
as Guarantor
By:
----------------------------------------
Name:
Title:
THE PULLMAN COMPANY, as Guarantor
By:
----------------------------------------
Name:
Title:
CLEVITE INDUSTRIES INC., as Guarantor
By:
----------------------------------------
Name:
Title:
TENNECO GLOBAL HOLDINGS INC.,
as Guarantor
By:
----------------------------------------
Name:
Title:
S-2
TMC TEXAS INC., as Guarantor
By:
----------------------------------------
Name:
Title:
TENNECO INTERNATIONAL HOLDING CORP.,
as Guarantor
By:
----------------------------------------
Name:
Title:
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By:
----------------------------------------
Name:
Title:
EXHIBIT A
[FORM OF SERIES A SECURITY]
THIS NOTE (AND ANY GUARANTEE THEREOF) HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND NEITHER
THIS SECURITY (NOR ANY GUARANTEE THEREOF) NOR ANY INTEREST OR PARTICIPATION
HEREIN (OR THEREIN) MAY BE OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF, BY ITS ACCEPTANCE OF THIS
SECURITY, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE THERETO UNDER RULE 144(K) UNDER THE SECURITIES ACT
WHICH IS APPLICABLE TO THIS SECURITY (THE "RESALE RESTRICTION TERMINATION DATE")
OTHER THAN (1) TO THE ISSUER OR ITS SUBSIDIARIES, (2) SO LONG AS THIS SECURITY
IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, IN EACH CASE TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF THIS SECURITY IS NOT
IN BOOK-ENTRY FORM), (3) TO A NON-"U.S. PERSON" IN AN "OFFSHORE TRANSACTION" (AS
SUCH TERMS ARE DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY IF
THIS SECURITY IS NOT IN BOOK-ENTRY FORM), (4) PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, INCLUDING
THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, IF AVAILABLE, OR
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
SUBJECT IN EACH OF THE FOREGOING CASES TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF ITS PROPERTY OR THE PROPERTY OF SUCH INVESTOR ACCOUNT OR ACCOUNTS
BE AT ALL TIMES WITHIN ITS OR THEIR CONTROL, AND SUBJECT TO THE RIGHT OF THE
IS-
A-1
SUER OR THE TRUSTEE FOR THE SECURITIES PRIOR TO ANY SUCH SALE, PLEDGE OR OTHER
TRANSFER PURSUANT TO CLAUSE (4) ABOVE TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON REQUEST OF THE HOLDER ON OR AFTER THE RESALE
RESTRICTION TERMINATION DATE.
A-2
TENNECO AUTOMOTIVE INC.
8 5/8% Senior Subordinated Notes
due November 15, 2014, Series A
CUSIP No.:
No. [ ] $[ ]
TENNECO AUTOMOTIVE INC., a Delaware corporation (the
"Company," which term includes any successor corporation), for value received
promises to pay to Cede & Co. or registered assigns, the principal sum of [ ]
Dollars, on November 15, 2014.
Interest Payment Dates: May 15 and November 15, commencing May
15, 2005.
Record Dates: May 1 and November 1.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: [ ]
TENNECO AUTOMOTIVE INC.
By:
-------------------------------
Name:
Title:
By:
-------------------------------
Name:
Title:
A-4
This is one of the 8 5/8% Senior Subordinated Notes due 2014,
Series A, described in the within-mentioned Indenture.
Dated: [ ]
THE BANK OF NEW YORK TRUST COMPANY,
N.A. as Trustee
By:
----------------------------------
Authorized Signatory
A-5
(REVERSE OF SECURITY)
TENNECO AUTOMOTIVE INC.
8 5/8% Senior Subordinated Notes
due November 15, 2014, Series A
1. Interest.
TENNECO AUTOMOTIVE INC., a Delaware corporation (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 semi-annually on May 15 and
November 15 of each year (an "Interest Payment Date"), commencing May 15, 2005.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from [ ]. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to
time on demand at the rate borne by the Securities plus 2% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are canceled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall 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. The Company may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York Trust Company, N.A. (the "Trustee")
will act as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
November 19, 2004 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to
A-6
the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the
"TIA"), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date on
which the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are governed by all such terms, and Holders of
Securities are referred to the Indenture and the TIA for a statement of them.
5. Optional Redemption.
The Securities will be redeemable, at the Company's option, in whole
at any time or in part from time to time, on and after November 15, 2009 upon
not less than 30 nor more than 60 days' notice, at the following redemption
prices (expressed as percentages of the principal amount thereof) if redeemed
during the twelve-month period commencing on November 15 of the applicable year
set forth below, plus, in each case, accrued and unpaid interest, if any, to the
date of redemption:
Year Percentage
---- ----------
2009.......................... 104.313%
2010.......................... 102.875%
2011.......................... 101.438%
2012 and thereafter........... 100.000%
6. Optional Redemption upon Equity Offerings.
At any time, or from time to time, on or prior to November 15, 2007,
the Company may, at its option, use all or any portion of the net cash proceeds
of one or more Equity Offerings (as defined below) to redeem up to 35% of the
aggregate principal amount of the Securities issued at a redemption price equal
to 108.625% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of redemption; provided that at least 65% of the aggregate
principal amount of Securities issued remains outstanding immediately after any
such redemption. In order to effect the foregoing redemption with the proceeds
of any Equity Offering, the Company shall make such redemption not more than 180
days after the consummation of any such Equity Offering.
As used in the preceding paragraph, "Equity Offering" means any
public or private sale of the common stock of the Company, other than any public
offering with respect to the Company's common stock registered on Form S-8 or
other issuances upon exercise of options by employees of the Company or any of
its Restricted Subsidiaries.
7. 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 such Holder's registered address. Securities in denominations of
$1,000 may be redeemed only in whole. The
A-7
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all of the outstanding Securities at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase.
9. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to make an
offer to purchase Securities at 100% of their principal amount plus accrued and
unpaid interest to the date of repurchase with certain net cash proceeds of
certain sales or other dispositions of assets in accordance with the Indenture.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
A-8
13. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the
Indenture and the Securities except for certain provisions thereof, and may be
discharged from its obligations to comply with certain covenants contained in
the Indenture and the Securities, in each case upon satisfaction of certain
conditions specified in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the Commission in connection with
the qualification of the Indenture under the TIA, or make any other change that
does not materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and certain of its subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to issue preferred
or other capital stock of subsidiaries, to sell assets, to permit restrictions
on dividends and other payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets, to engage in transactions
with affiliates or to engage in certain businesses. The limitations are subject
to a number of important qualifications and exceptions.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal, premium or interest, including an
accelerated payment) if it determines that withholding notice is in their
interest.
A-9
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries, any Guarantor and their respective
Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation 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. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. 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 as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company will be
obligated upon the occurrence of certain events to consummate an exchange offer
pursuant to which the Holder of this Security shall have the right to exchange
this Series A Security for the Company's 8 5/8% Senior Subordinated Notes due
2014, Series B (the "Series B Securities"), which have been registered under the
Securities Act, in like principal amount and having terms identical in all
material respects as the Series A Securities. The Holders shall be entitled to
receive certain additional interest payments in the event such exchange offer is
not consummated and upon certain other conditions, all pursuant to and in
accordance with the terms of the Registration Rights Agreement.
A-10
23. Subordination.
The Securities are subordinated in right of payment, in the manner
and to the extent set forth in the Indenture, to the prior payment in full in
cash or Cash Equivalents of all Senior Debt of the Company, whether outstanding
on the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to
TENNECO AUTOMOTIVE INC., 500 North Field Drive, Lake Forest, IL 60045,
Attention: Chief Financial Officer.
A-11
ASSIGNMENT FORM
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Dated: Signed:
---------------------- ------------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor reasonably acceptable
to the Trustee)
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Section 4.21 of the Indenture, check the appropriate
box:
Section 4.12 [ ] Section 4.21 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.12 or Section 4.21 of the Indenture, state the
amount: $
Date: Your Signature:
----------------- -----------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor reasonably acceptable
to the Trustee)
A-13
EXHIBIT B
[FORM OF SERIES B SECURITY]
TENNECO AUTOMOTIVE INC.
8 5/8% Senior Subordinated Notes
due November 15, 2014, Series B
CUSIP No.: [ ]
No. [ ] $[ ]
TENNECO AUTOMOTIVE INC., a Delaware corporation (the "Company,"
which term includes any successor corporation), for value received promises to
pay to Cede & Co. or registered assigns, the principal sum of [ ] Dollars,
on November 15, 2014.
Interest Payment Dates: May 15 and November 15, commencing [ ].
Record Dates: May 1 and November 1.
Reference is made to the further provisions of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.
B-1
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Dated: [ ], [ ]
TENNECO AUTOMOTIVE INC.
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
B-2
This is one of the 8 5/8% Senior Subordinated Notes due 2014, Series
B, described in the within-mentioned Indenture.
Dated: [ ], [ ]
THE BANK OF NEW YORK TRUST COMPANY, N.A.,
as Trustee
By:
-----------------------------------
Authorized Signatory
B-3
(REVERSE OF SECURITY)
TENNECO AUTOMOTIVE INC.
8 5/8% Senior Subordinated Notes
due 8 5/8%, 2014, Series B
1. Interest.
TENNECO AUTOMOTIVE INC., a Delaware corporation (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 semi-annually on May 15 and
November 15 of each year (an "Interest Payment Date"), commencing [ ].
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from November 19, 2004.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal from time to
time on demand at the rate borne by the Securities plus 2% and on overdue
installments of interest (without regard to any applicable grace periods) to the
extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are canceled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall 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. The Company may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York Trust Company, N.A. (the
"Trustee") will act as Paying Agent and Registrar. The Company may change
any Paying Agent, Registrar or co-Registrar without notice to the Holders.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of
November 19, 2004 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securi-
B-4
ties 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. Sections
77aaa-77bbbb) (the "TIA"), as in effect on the date of the Indenture until such
time as the Indenture is qualified under the TIA, and thereafter as in effect on
the date on which the Indenture is qualified under the TIA. Notwithstanding
anything to the contrary herein, the Securities are governed by to all such
terms, and Holders of Securities are referred to the Indenture and the TIA for a
statement of them.
5. Optional Redemption.
The Securities will be redeemable, at the Company's option, in whole
at any time or in part from time to time, on and after November 15, 2009 upon
not less than 30 nor more than 60 days' notice, at the following redemption
prices (expressed as percentages of the principal amount thereof) if redeemed
during the twelve-month period commencing on November 15 of the applicable year
set forth below, plus, in each case, accrued and unpaid interest, if any, to the
date of redemption:
Year Percentage
---- ----------
2009.......................... 104.313%
2010.......................... 102.875%
2011.......................... 101.438%
2012 and thereafter........... 100.000%
6. Optional Redemption upon Equity Offerings.
At any time, or from time to time, on or prior to November 15, 2007,
the Company may, at its option, use all or any portion of the net cash proceeds
of one or more Equity Offerings (as defined below) to redeem up to 35% of the
aggregate principal amount of the Securities issued at a redemption price equal
to 108.625% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of redemption; provided that at least 65% of the aggregate
principal amount of Securities issued remains outstanding immediately after any
such redemption. In order to effect the foregoing redemption with the proceeds
of any Equity Offering, the Company shall make such redemption not more than 180
days after the consummation of any such Equity Offering.
As used in the preceding paragraph, "Equity Offering" means any
public or private sale of the common stock of the Company, other than any public
offering with respect to the Company's common stock registered on Form S-8 or
other issuances upon exercise of options by employees of the Company or any of
its Restricted Subsidiaries.
7. 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 such Holder's registered address. Securities in denominations of
$1,000 may be redeemed only in whole. The
B-5
Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption.
8. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all of the outstanding Securities at a purchase
price equal to 101% of the principal amount thereof plus accrued and unpaid
interest, if any, to the date of repurchase.
9. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to make an
offer to purchase Securities at 100% of their principal amount plus accrued and
unpaid interest to the date of repurchase with certain net cash proceeds of
certain sales or other dispositions of assets in accordance with the Indenture.
10. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
11. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
12. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed
for two years, the Trustee and the Paying Agent will repay the funds to the
Company at its request. After that, all liability of the Trustee and such Paying
Agent with respect to such funds shall cease.
B-6
13. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the
Indenture and the Securities except for certain provisions thereof, and may be
discharged from its obligations to comply with certain covenants contained in
the Indenture and the Securities, in each case upon satisfaction of certain
conditions specified in the Indenture.
14. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities or comply with any requirements of the Commission in connection with
the qualification of the Indenture under the TIA, or make any other change that
does not materially adversely affect the rights of any Holder of a Security.
15. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and certain of its subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to issue preferred
or other capital stock of subsidiaries, to sell assets, to permit restrictions
on dividends and other payments by subsidiaries to the Company, to consolidate,
merge or sell all or substantially all of its assets, to engage in transactions
with affiliates or to engage in certain businesses. The limitations are subject
to a number of important qualifications and exceptions.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee is not obligated to enforce the Indenture or the
Securities unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Securities notice of any continuing Default or Event of Default
(except a Default in payment of principal, premium or interest, including an
accelerated payment) if it determines that withholding notice is in their
interest.
B-7
17. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries, any Guarantor and their respective
Affiliates as if it were not the Trustee.
18. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as
such, of the Company shall have any liability for any obligation 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. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. 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 as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Subordination.
The Securities are subordinated in right of payment, in the manner
and to the extent set forth in the Indenture, to the prior payment in full in
cash or Cash Equivalents of all Senior Debt of the Company, whether outstanding
on the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be necessary or appropriate to effectuate the
subordination provided for in the Indenture and appoints the Trustee his
attorney-in-fact for such purposes.
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The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made
to: TENNECO AUTOMOTIVE INC., 500 North Field Drive, Lake Forest, IL 60045,
Attention: Chief Financial Officer.
B-9
ASSIGNMENT FORM
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Dated: Signed:
------------------ -------------------------------------
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
B-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Section 4.21 of the Indenture, check the appropriate
box:
Section 4.12 [ ] Section 4.21 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.12 or Section 4.21 of the Indenture, state the
amount: $
Date: Your Signature:
----------------- -----------------------------------
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee:
------------------------------------------------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
B-11
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear
a legend (which would be in addition to any other legends required in the case
of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO A
NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS 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.
C-1
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
Re: 8 5/8% Senior Subordinated Notes due 2014, Series A,
and 8 5/8% Senior Subordinated Notes due 2014,
Series B (the "Securities"), of Tenneco Automotive Inc.
This Certificate relates to $_______ principal amount of Securities
held in the form of* ___ a beneficial interest in a Global Security or* _______
Physical Securities by ______ (the "Transferor").
The Transferor:*
[ ] has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a Physical Security or Physical Securities in definitive, registered
form of authorized denominations and an aggregate number equal to its beneficial
interest in such Global Security (or the portion thereof indicated above); or
[ ] has requested by written order that the Registrar exchange or
register the transfer of a Physical Security or Physical Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Indenture relating to the above captioned Securities and the
restrictions on transfers thereof as provided in Section 2.16 of such Indenture,
and that the transfer of this Securities does not require registration under the
Securities Act of 1933, as amended (the "Act"), because*:
[ ] Such Security is being acquired for the Transferor's own
account, without transfer (in satisfaction of Section 2.16(a)(II)(A) or Section
2.16(d)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
[ ] Such Security is being transferred to an institutional
"accredited investor" (within the meaning of subparagraph (a)(1), (2), (3) or
(7) of Rule 501 under the Act).
- ----------
* Check applicable box.
D-1
[ ] Such Security is being transferred in reliance on Regulation S
under the Act
[ ] Such Security is being transferred in reliance on Rule 144 under
the Act.
[ ] Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the Act other
than Rule 144A or Rule 144 or Regulation S under the Act to a person other than
an institutional "accredited investor."
--------------------------------
[INSERT NAME OF TRANSFEROR]
By:
-----------------------------------------
[Authorized Signatory]
Date:
-----------------------
D-2
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
---------------, ----
The Bank of New York Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Attention: Global Finance Unit
Re: Tenneco Automotive Inc. (the "Company") Indenture
(the "Indenture") relating to 8 5/8% Senior Subordinated
Notes due 2014, Series A
Ladies and Gentlemen:
In connection with our proposed purchase of 8 5/8% Senior
Subordinated Notes due 2014, Series A of Tenneco Automotive Inc. (the
"Company"), we confirm that:
1. We have received such information as we deem necessary in order
to make our investment decision.
2. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture
and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such
restrictions and conditions and the Securities Act of 1933, as amended
(the "Securities Act").
3. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except as permitted in the following sentence. We
agree for the benefit of the issuer that this Security may not be offered,
sold, pledged or otherwise transferred prior to the expiration of the
holding period applicable thereto under Rule 144(k) under the Securities
Act which is applicable to this Security (the "Resale Restriction
Termination Date") other than (1) to the issuer or its subsidiaries, (2)
so long as this Security is eligible for resale pursuant to Rule 144A
under the Securities Act ("Rule 144A"), to a person who
E-1
the seller reasonably believes is a "Qualified Institutional Buyer" within
the meaning of Rule 144A purchasing for its own account or for the account
of a Qualified Institutional Buyer, in each case to whom notice is given
that the resale, pledge or other transfer is being made in reliance on
Rule 144A (as indicated by the box checked by the transferor on the
certificate of transfer on the reverse of this Security if this Security
is not in book-entry form), (3) to a non-"U.S. person" in an "Offshore
Transaction" (as such terms are defined in Regulation S under the
Securities Act) in accordance with Regulation S under the Securities Act
(as indicated by the box checked by the transferor on the certificate of
transfer on the reverse of this Security if this Security is not in
book-entry form), (4) pursuant to any other available exemption from the
registration requirements of the Securities Act, including the exemption
provided by Rule 144 under the Securities Act, if available, or (5)
pursuant to an effective registration statement under the Securities Act,
subject in each of the foregoing cases to any requirement of law that the
disposition of its property or the property of such investor account or
accounts be at all times within its or their control, and subject to the
right of the issuer or the Trustee for the Securities prior to any such
sale, pledge or other transfer pursuant to clause (4) above to require the
delivery of an opinion of counsel, certifications and/or other information
satisfactory to each of them. This legend will be removed upon request of
the holder on or after the Resale Restriction Termination Date.
4. We understand that, on any proposed resale of Securities, we will
be required to furnish to the Trustee and the Company, such certification,
legal opinions and other information as the Trustee and the Company may
reasonably require to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Securities
purchased by us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and
have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the
Securities, and we and any accounts for which we are acting are each able
to bear the economic risk of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for our account
or for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
E-2
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 proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
-----------------------------------
[Authorized Signatory]
E-3
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
---------------, ----
The Bank of New York Trust Company, N.A.
2 North LaSalle Street, Suite 1020
Chicago, IL 60602
Attention: Global Finance Unit
Re: Tenneco Automotive Inc. (the "Company")
8 5/8% Senior Subordinated Notes due 2014,
Series A (the "Securities"),
Dear Sirs:
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 Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on
our behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated offshore 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;
(3) no directed selling efforts have been made in the United States
in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
F-1
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the 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. Defined terms used herein without
definition have the respective meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-----------------------------------------
[Authorized Signatory]
F-2
EXHIBIT G
[FORM OF SUBSIDIARY GUARANTEE]
Each undersigned Guarantor (as defined in the Indenture referred to
in the Security upon which this notation is endorsed and each referred to as the
"Guarantor," which term includes any successor person under the Indenture)
unconditionally guarantees on a senior basis as set forth in the Indenture (such
guarantee by the Guarantor being referred to herein as a "Subsidiary Guarantee")
(i) the due and punctual payment of the principal of and interest on the
Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal and interest, if any, on
the Securities, to the extent lawful, and the due and punctual performance of
all other obligations of the Company to the Holders or the Trustee all in
accordance with the terms set forth in Article Ten of the Indenture and (ii) in
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
No stockholder, officer, director or incorporator, as such, past,
present or future, of the Guarantor shall have any liability under the
Subsidiary Guarantee by reason of his or its status as such stockholder,
officer, director or incorporator.
The Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which the
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
G-1