1
Exhibit 4(a)
EXECUTION COPY
""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""
INSILCO CORPORATION
AS ISSUER
to
STAR BANK, N.A.
AS TRUSTEE
----------------
Indenture
Dated as of November 9, 1998
----------------
$150,000,000
12% SENIOR SUBORDINATED NOTES DUE 2007
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TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY...................................................................1
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 1.01 DEFINITIONS........................................................................2
Act.........................................................................................3
Affiliate...................................................................................3
Agent Member................................................................................3
Applicable Procedures.......................................................................3
Asset Disposition...........................................................................3
Authenticating Agent........................................................................3
Base Interest...............................................................................3
Board of Directors..........................................................................4
Board Resolution............................................................................4
Business Day................................................................................4
Capital Lease Obligation....................................................................4
Capital Stock...............................................................................4
Change of Control...........................................................................4
Claim.......................................................................................4
Commission..................................................................................4
Common Stock................................................................................4
Company.....................................................................................5
Company Order...............................................................................5
Company Request.............................................................................5
Consolidated EBITDA.........................................................................5
Consolidated EBITDA Coverage Ratio..........................................................5
Consolidated Income Tax Expense.............................................................6
Consolidated Interest Expense...............................................................6
Consolidated Net Income.....................................................................6
Consolidated Net Worth......................................................................6
Consolidated Subsidiaries...................................................................6
Corporate Trust Office......................................................................7
Corporation.................................................................................7
Debt........................................................................................7
Defaulted Interest..........................................................................8
Defeasance..................................................................................8
Depositary..................................................................................8
Designated Senior Debt......................................................................8
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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PAGE
DTC.........................................................................................8
Event of Default............................................................................8
Excepted Disposition........................................................................8
Exchange Act................................................................................8
Exchange Notes..............................................................................9
Exchange Offer..............................................................................9
Exchange Registration Statement.............................................................9
Expiration Date.............................................................................9
Global Note.................................................................................9
Guarantee...................................................................................9
Holders.....................................................................................9
Incur.......................................................................................9
Indenture..................................................................................10
Initial Purchaser..........................................................................10
Insolvency Proceeding......................................................................10
Interest Payment Date......................................................................10
Interest Rate, Currency or Commodity Price Agreement.......................................10
Investment.................................................................................10
Lien ......................................................................................10
Liquidated Damages.........................................................................11
Maturity...................................................................................11
Net Available Proceeds.....................................................................11
Notice of Default..........................................................................11
Obligations................................................................................12
Offer Document.............................................................................12
Offer Expiration Date......................................................................12
Offer to Purchase..........................................................................12
Officers" Certificate......................................................................14
Old Credit Facility........................................................................14
Opinion of Counsel.........................................................................14
Original Notes.............................................................................14
Outstanding................................................................................14
Paying Agent...............................................................................15
payment in full............................................................................15
Permitted Interest Rate, Currency or Commodity Price Agreement.............................15
Permitted Investment.......................................................................15
Person.....................................................................................16
Plan or Reorganization.....................................................................16
Post-Petition Interest.....................................................................16
Predecessor Note...........................................................................16
Preferred Stock............................................................................16
Public Offering............................................................................17
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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PAGE
Purchase Agreement.........................................................................17
Purchase Amount............................................................................17
Purchase Date..............................................................................17
Purchase Price.............................................................................17
Receivables................................................................................17
Receivables Sale...........................................................................17
Redeemable Interest........................................................................17
Redemption Date............................................................................17
Redemption Price...........................................................................17
Registered Notes...........................................................................17
Registration Rights Agreement..............................................................17
Regular Record Date........................................................................18
Reinvested Amounts.........................................................................18
Related Person.............................................................................18
Required Filing Dates......................................................................18
Restricted Global Note.....................................................................18
Restricted Payment.........................................................................18
Restricted Securities......................................................................18
Restricted Securities Certificate..........................................................18
Restricted Securities Legend...............................................................18
Restricted Subsidiary......................................................................18
Rule 144A..................................................................................19
Rule 144A Notes............................................................................19
Notes......................................................................................19
Securities Act.............................................................................19
Securities Act Legend......................................................................19
Note Register..............................................................................19
Note Registrar.............................................................................19
Senior Debt................................................................................19
Shares.....................................................................................19
Shelf Registration Statement...............................................................20
Special Record Date........................................................................20
Stated Maturity............................................................................20
Subordinated Debt..........................................................................20
Subordinated Obligations...................................................................20
Subordinated Securities....................................................................21
Subsidiary.................................................................................21
Successor Company..........................................................................21
Successor Note.............................................................................21
Tender Offer...............................................................................21
Trust Indenture Act........................................................................21
Trustee....................................................................................22
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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PAGE
Unpermitted Debt...........................................................................22
Unrestricted Notes Certificate.............................................................22
Unrestricted Subsidiary....................................................................22
U.S. Person................................................................................22
Vice President.............................................................................23
Voting Stock...............................................................................23
Water Street...............................................................................23
Wholly Owned Restricted Subsidiary.........................................................23
SECTION 1.02 Compliance Certificates and Opinions..............................................23
SECTION 1.03 Form of Documents Delivered to Trustee............................................24
SECTION 1.04 Acts of Holders; Record Dates.....................................................24
SECTION 1.05 Notices, Etc., to Trustee and the Company.........................................26
SECTION 1.06 Notice to Holders; Waiver.........................................................27
SECTION 1.07 Conflict with Trust Indenture Act.................................................27
SECTION 1.08 Effect of Headings and Table of Contents..........................................27
SECTION 1.09 Successors and Assigns............................................................27
SECTION 1.10 Separability Clause...............................................................28
SECTION 1.11 Benefits of Indenture.............................................................28
SECTION 1.12 Governing Law.....................................................................28
SECTION 1.13 Legal Holidays....................................................................28
ARTICLE TWO
Note Forms
SECTION 2.01 Forms Generally; Initial Forms of Rule 144A Notes.................................28
SECTION 2.02 Form of Face of Note..............................................................29
SECTION 2.03 Form of Reverse of Note...........................................................34
SECTION 2.04 Form of Trustee"s Certificate of Authentication...................................37
ARTICLE THREE
The Notes
SECTION 3.01 Title and Terms...................................................................38
SECTION 3.02 Denominations.....................................................................39
SECTION 3.03 Execution, "Authentication" Delivery and Dating...................................39
SECTION 3.04 Temporary Notes...................................................................40
SECTION 3.05 Global Notes......................................................................41
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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PAGE
SECTION 3.06 Registration, Registration of Transfer and Exchange
Generally; Restrictions on Transfer and Exchange; Securities
Act Legends.......................................................................42
SECTION 3.07 Mutilated, Destroyed, Lost and Stolen Notes.......................................44
SECTION 3.08 Payment of Interest; Interest Rights Preserved....................................45
SECTION 3.09 Persons Deemed Owners.............................................................46
SECTION 3.10 Cancellation......................................................................46
SECTION 3.11 Computation of Interest...........................................................46
SECTION 3.12 CUSIP Numbers.....................................................................46
ARTICLE FOUR
Satisfaction and Discharge
SECTION 4.01 Satisfaction and Discharge of Indenture...........................................47
SECTION 4.02 Application of Trust Money........................................................48
ARTICLE FIVE
Remedies
SECTION 5.01 Events of Default.................................................................48
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment................................50
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Trustee...........................................................................51
SECTION 5.04 Trustee May File Proofs of Claim..................................................51
SECTION 5.05 Trustee May Enforce Claims Without Possession of Notes............................52
SECTION 5.06 Application of Money Collected....................................................52
SECTION 5.07 Limitation on Suits...............................................................52
SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium
and Interest......................................................................53
SECTION 5.09 Restoration of Rights and Remedies................................................53
SECTION 5.10 Rights and Remedies Cumulative....................................................54
SECTION 5.11 Delay or Omission Not Waiver......................................................54
SECTION 5.12 Control by Holders................................................................54
SECTION 5.13 Waiver of Past Defaults...........................................................54
SECTION 5.14 Undertaking for Costs.............................................................55
SECTION 5.15 Waiver of Stay, Usury or Extension Laws...........................................55
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE SIX
The Trustee
PAGE
SECTION 6.01 Certain Duties and Responsibilities...............................................55
SECTION 6.02 Notice of Defaults................................................................56
SECTION 6.03 Certain Rights of Trustee.........................................................56
SECTION 6.04 Not Responsible for Recitals or Issuance of Notes.................................57
SECTION 6.05 May Hold Notes....................................................................57
SECTION 6.06 Money Held in Trust...............................................................57
SECTION 6.07 Compensation and Reimbursement....................................................57
SECTION 6.08 Disqualification; Conflicting Interests...........................................58
SECTION 6.09 Corporate Trustee Required; Eligibility...........................................58
SECTION 6.10 Resignation and Removal; Appointment of Successor.................................58
SECTION 6.11 Acceptance of Appointment by Successor............................................60
SECTION 6.12 Merger Conversion, Consolidation or Succession to Business........................60
SECTION 6.13 Preferential Collection of Claims Against Company.................................60
SECTION 6.14 Appointment of Authenticating Agent...............................................60
SECTION 6.15 Trustee"s Application for Instructions from the Company...........................62
ARTICLE SEVEN
Holders Lists and Reports by Trustee, Company and Guarantors
SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders.........................62
SECTION 7.02 Preservation of Information; Communications to Holders............................63
SECTION 7.03 Reports by Trustee................................................................63
SECTION 7.04 Reports by the Company and Guarantors.............................................63
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 8.01 Mergers, Consolidations and Certain Transfers, Leases and
Acquisitions of Assets............................................................64
SECTION 8.02 Successor Substituted.............................................................65
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE NINE
Supplemental Indentures
PAGE
SECTION 9.01 Supplemental Indentures Without Consent of Holders................................65
SECTION 9.02 Supplemental Indentures with Consent of Holders...................................66
SECTION 9.03 Execution of Supplemental Indentures..............................................67
SECTION 9.04 Effect of Supplemental Indentures.................................................68
SECTION 9.05 Conformity with Trust Indenture Act...............................................68
SECTION 9.06 Reference in Notes to Supplemental Indentures.....................................68
SECTION 9.07 Changes Adverse to Holders of Senior Debt.........................................68
ARTICLE TEN
Covenants
SECTION 10.01 Payment of Principals Premium and Interest........................................68
SECTION 10.02 Maintenance of Office or Agency...................................................68
SECTION 10.03 Money for Note Payments to Be Held in Trust.......................................69
SECTION 10.04 Existence.........................................................................70
SECTION 10.05 Maintenance of Properties.........................................................70
SECTION 10.06 Payment of Taxes and Other Claims.................................................70
SECTION 10.07 Maintenance of Insurance..........................................................71
SECTION 10.08 Limitation on Consolidated Debt...................................................71
SECTION 10.09 Limitation on Debt and Preferred Stock of Subsidiaries............................73
SECTION 10.10 Limitation on Layered Debt........................................................74
SECTION 10.11 Limitation on Issuance of Guarantees of Subordinated Debt.........................74
SECTION 10.12 Limitation on Restricted Payments.................................................74
SECTION 10.13 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries............................................................76
SECTION 10.14 Limitation on Liens...............................................................77
SECTION 10.15 Limitation on Ownership of Capital Stock of Subsidiaries..........................78
SECTION 10.16 Limitation on Transactions with Affiliates and Related
Persons...........................................................................78
SECTION 10.17 Limitation on Certain Asset Dispositions..........................................79
SECTION 10.18 Change of Control.................................................................81
SECTION 10.19 Provision of Financial Information................................................82
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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PAGE
SECTION 10.20 Unrestricted Subsidiaries.........................................................83
SECTION 10.21 Note Guarantees...................................................................85
SECTION 10.22 Statement by Officers as to Default; Compliance Certificates......................85
SECTION 10.23 Waiver of Certain Covenants.......................................................86
ARTICLE ELEVEN
Redemption of Notes
SECTION 11.01 Redemption at the Election of the Company.........................................86
SECTION 11.02 Applicability of Article..........................................................86
SECTION 11.03 Election to Redeem; Notice to Trustee.............................................86
SECTION 11.04 Selection by Trustee of Notes to Be Redeemed......................................87
SECTION 11.05 Notice of Redemption..............................................................87
SECTION 11.06 Deposit of Redemption Price.......................................................88
SECTION 11.07 Notes Payable on Redemption Date..................................................88
SECTION 11.08 Notes Redeemed in Part............................................................88
SECTION 11.09 Special Redemption................................................................88
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 12.01 Company"s Option to Effect Defeasance or Covenant Defeasance......................89
SECTION 12.02 Defeasance and Discharge..........................................................89
SECTION 12.03 Covenant Defeasance...............................................................90
SECTION 12.04 Conditions to Defeasance or Covenant Defeasance...................................90
SECTION 12.05 Deposited Money and U.S. Government Obligations to Be Held
in Trust: Other Miscellaneous Provisions..........................................92
SECTION 12.06 Reinstatement.....................................................................92
ARTICLE THIRTEEN
Subordination of Notes
SECTION 13.01 Notes Subordinate to Senior Debt..................................................93
SECTION 13.02 Payment Over of Proceeds Upon Dissolution, Etc. ..................................93
SECTION 13.03 No Payment When Senior Debt in Default............................................94
SECTION 13.04 Certain Payments Permitted........................................................95
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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PAGE
SECTION 13.05 Subrogation to Rights of Holders of Senior Debt...................................95
SECTION 13.06 Provisions Solely to Define Relative Rights.......................................96
SECTION 13.07 Trustee to Effectuate Subordination...............................................96
SECTION 13.08 No Waiver of Subordination Provisions.............................................96
SECTION 13.09 Notice to Trustee.................................................................97
SECTION 13.10 Reliance on Judicial Order or Certificate of Liquidation
Agent.............................................................................98
SECTION 13.11 Trustee Not Fiduciary for Holders of Senior Debt..................................98
SECTION 13.12 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee"s Rights..................................................................99
SECTION 13.13 Article Applicable to Paying Agents...............................................99
SECTION 13.14 Defeasance of this Article Thirteen...............................................99
ARTICLE FOURTEEN
Note Guarantees
SECTION 14.01 Guarantee.........................................................................99
SECTION 14.02 Subordination of Note Guarantee..................................................100
SECTION 14.03 Limitation on Guarantor Liability................................................101
SECTION 14.04 Execution and Delivery of Note Guarantee.........................................101
SECTION 14.05 Guarantors May Consolidate, etc., on Certain Terms...............................101
SECTION 14.06 Releases Following Sale of Assets................................................102
ARTICLE FIFTEEN
Jurisdiction and Consent to Service of Process
SECTION 15.01 Jurisdiction and Consent to Service of Process...................................103
ANNEX A -- Form of Unrestricted Notes Certificate
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Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INSILCO CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
- - ------------------------------------------------------------------------------------------------------------------
Trust Indenture Indenture
Act Section Section
Section 310(a)(1) ...................................................... 6.09
(a)(2) ...................................................... 6.09
(a)(3) ...................................................... Not Applicable
(a)(4) ...................................................... Not Applicable
(b) ...................................................... 6.08
6.10
Section 311(a) ...................................................... 6.13
(b) ...................................................... 6.13
Section 312(a) ...................................................... 7.01
7.02(a)
(b) ...................................................... 7.02(b)
(c) ...................................................... 7.03(a)
Section 313(a) ...................................................... 7.03(a)
(a)(4) ...................................................... 1.01
10.04
(b) ...................................................... 7.03(a)
(c) ...................................................... 7.03(a)
(d) ...................................................... 7.03(b)
Section 314(a) ...................................................... 7.04
(b) ...................................................... Not Applicable
(c)(1) ...................................................... 1.02
(c)(2) ...................................................... 1.02
(c)(3) ...................................................... Not Applicable
(d) ...................................................... Not Applicable
(e) ...................................................... 1.02
Section 315(a) ...................................................... 6.01
(b) ...................................................... 6.02
(c) ...................................................... 6.01
(d) ...................................................... 6.01
(e) ...................................................... 5.14
Section 316(a) ...................................................... 1.01
(a)(1)(A) ...................................................... 5.02
5.12
(a)(1)(B) ...................................................... 5.13
(a)(2) ...................................................... Not Applicable
(b) ...................................................... 5.08
(c) ...................................................... 1.04
Section 317(a)(1) ...................................................... 5.03
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(a)(2) ...................................................... 5.04
(b) ...................................................... 10.03
Section 318(a) ...................................................... 1.07
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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 9, 1998, among INSILCO
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company " ), having its principal office
at 425 Metro Place N., Fifth Floor, Box 7196, Dublin, Ohio 43017, and STAR BANK,
N.A, an Ohio corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of (i) initially, $120,000,000
aggregate principal amount of its senior subordinated notes designated as its
12% Senior Subordinated Notes due 2007 (including any Exchange Notes issued in
respect thereof, the "Initial Notes") and (ii), if and when issued, up to an
aggregate principal amount of $30,000,000 additional 12% Subordinated Notes due
2007, of substantially the tenor hereinafter set forth, which may be offered
hereafter (including any Exchange Notes issued in respect thereof, the
"Additional Notes"), and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture. The Initial Notes and the Additional
Notes are referred to herein as the "Notes". All Notes shall be identical in all
respects other than issue dates, the date from which interest accrues and any
changes relating thereto. The Notes may consist of either or both of Original
Notes or Exchange Notes, each as defined herein. The Original Notes and the
Exchange Notes shall rank pari passu with one another.
All things necessary (i) to make the Notes, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and (ii) to make this Indenture a
valid agreement of the Company, all in accordance with their respective terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
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ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation;
(4) all references in this Indenture and the Notes to interest
in respect of any Note shall be deemed to include all interest payable
with respect to any Non-Guarantee Period, if any, and all Liquidated
Damages, if any, in respect of such Note, unless the context otherwise
requires, and express mention of the payment of Liquidated Damages in
any provision hereof or thereof shall not be construed as excluding
reference to Liquidated Damages in those provisions hereof or thereof
where such express mention is not made; all references in this
Indenture and the Notes to principal in respect of any Note shall be
deemed to include any Redemption Price or Purchase Price payable in
respect of such Note pursuant to any redemption or Offer to Purchase
hereunder (and all such references to the Stated Maturity of the
principal in respect of any Note shall be deemed to include the
Redemption Date with respect to any such Redemption Price and the
Purchase Date with respect to any such Purchase Price), and express
mention of the payment of any Redemption Price or Purchase Price in any
provision hereof or thereof shall not be construed as excluding
reference to any Redemption Price or Purchase Price in those provisions
hereof or thereof where such express reference is not made;
(5) unless the context otherwise requires, any reference to
"Article", "Section" or "Annex" refers to an Article or Section of or
Annex to this Indenture;
(6) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision; and
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(7) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Notes" means additional Notes (other than the
Initial Notes) issued under this Indenture in accordance with Sections 3.01 and
9.01 hereof.
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such Person. For the purposes of this definition, "control" when
used with respect to any Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Note, to the extent applicable to such
transaction and as in effect at the time of such transfer or transaction.
"Asset Disposition" means, with respect to the Company or any
Restricted Subsidiary, any transfer, conveyance, sale, lease or other
disposition by the Company or such Restricted Subsidiary (including a
consolidation or merger or other sale of such Restricted Subsidiary with, into
or to another Person in a transaction in which such Restricted Subsidiary ceases
to be a Restricted Subsidiary) of (i) shares of Capital Stock (other than
directors" qualifying shares) or other ownership interests of any Restricted
Subsidiary, (ii) substantially all of the assets of the Company or such
Restricted Subsidiary representing a division or line of business or (iii) other
assets or rights of the Company or any Restricted Subsidiary outside of the
ordinary course of business, but excluding, in each case of Clauses (i), (ii)
and (iii), (a) any disposition in the ordinary course of business of obsolete
equipment or other property used in the business of the Company or any
Restricted Subsidiary that is no longer used or useful in such business, (b) any
disposition by the Company or any Restricted Subsidiary to the Company or any
Wholly Owned Restricted Subsidiary, (c) required payments with respect to any
Debt permitted to be Incurred pursuant to Section 10.08, (d) any disposition
that is permitted pursuant to Section 10.12, and (e) the disposition of all or
substantially all of the assets of the Company and its Subsidiaries on a
consolidated basis permitted pursuant to Section 8.01.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Notes.
"Base Interest" means the interest that would otherwise accrue
on the Notes under the terms thereof and the Indenture, without giving effect to
any Liquidated Damages.
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16
"Board of Directors" means, with respect to the Company, the
board of directors of the Company or any duly authorized committee of that
board. Except as otherwise provided or unless the context otherwise requires,
each reference herein to the "Board of Directors" shall mean the Board of
Directors of the Company.
"Board Resolution" of the Company means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by its Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee. Except as otherwise
expressly provided or unless the context otherwise requires, each reference
herein to a "Board Resolution" shall mean a Board Resolution of the Company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation
to pay rent or other payment amounts under a lease of (or other Debt
arrangements conveying the right to use) real or personal property of such
Person that is required to be classified and accounted for as a capital lease or
a liability on the face of a balance sheet of such Person in accordance with
generally accepted accounting principles. The stated maturity of such obligation
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty. The principal amount of such obligation
shall be the capitalized amount thereof that would appear on the face of a
balance sheet of such Person in accordance with generally accepted accounting
principles.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock or other equity participations, including partnership interests, whether
general or limited, of such Person.
"Change of Control" has the meaning specified in Section
1018(c).
"Claim" means any and all rights to payment under or in
respect of any of the Notes or this Indenture, all rights, remedies, demands,
causes of action and claims of every type and description at any time held or
asserted by, or arising in favor of, any holder of a Note against the Company or
any of its Subsidiaries or Affiliates or any of their assets, in each case on
account of any breach of any promise, obligation, agreement, indemnity,
representation, warranty or covenant in a Note or the Indenture or the
performance or nonperformance or payment or nonpayment thereof.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" of any Person means Capital Stock of such
Person that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or
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involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated EBITDA" of any Person means for any period, on a
consolidated basis for such Person and its Consolidated Subsidiaries, the sum of
the amounts for such period of (i) Consolidated Net Income, (ii) Consolidated
Interest Expense (but excluding any interest capitalized in accordance with
generally accepted accounting principles), (iii) Consolidated Income Tax
Expense, (iv) depreciation and amortization expense, (v) other non-cash charges
and (vi) other non-operating expenses that have been deducted in the
determination of Consolidated Net Income; PROVIDED, HOWEVER, that for each such
Consolidated Subsidiary the items (i) through (vi) shall be included in such sum
only (x) to the extent and in the same proportion that the Consolidated Net
Income of such Consolidated Subsidiary was included in calculating the
Consolidated Net Income of such Person and (y) only to the extent that the
amount specified in Clause (x) is not restricted from the payment of dividends
or the making of distributions to such Person during such period.
"Consolidated EBITDA Coverage Ratio" of any Person means for
any period the ratio of (i) Consolidated EBITDA of such Person for such period
to (ii) the sum of (A) Consolidated Interest Expense of such Person for such
period, plus (B) the annual interest expense (including the amortization of debt
discount but excluding the fees and expenses incurred in connection with the
amortization of the Old Credit Facility) with respect to any Debt Incurred or
proposed to be Incurred by such Person or its Consolidated Subsidiaries since
the beginning of such period to the extent not included within Clause (ii)(A),
minus (C) Consolidated Interest Expense of such Person with respect to any Debt
that is no longer outstanding or that will no longer be outstanding as a result
of the transaction with respect to which the Consolidated EBITDA Coverage Ratio
is being calculated, to the extent included within Clause (ii)(A); provided,
however, that in making such computation, the Consolidated Interest Expense of
such Person attributable to interest on any Debt bearing a floating interest
rate shall be computed on a pro forma basis as if the rate in effect on the date
of computation had been the applicable rate for the entire period; and provided,
further, that, in the event such Person or any of its Consolidated Subsidiaries
has made acquisitions or dispositions of assets not in the ordinary course of
business (including by merger, consolidation or purchase of Capital Stock)
during or after such period, the computation of the Consolidated EBITDA Coverage
Ratio (and for the purpose of such computation, the calculation of Consolidated
Net Income, Consolidated Interest Expense, Consolidated Income Tax Expense and
Consolidated EBITDA) shall be made on a pro forma basis as if the acquisitions
or dispositions had taken place on the first day of such period.
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"Consolidated Income Tax Expense" of any Person means for any
period the consolidated provision for income taxes of such Person and its
Consolidated Subsidiaries for such period determined in accordance with
generally accepted accounting principles.
"Consolidated Interest Expense" of any Person means for any
period, on a consolidated basis for such Person and its Consolidated
Subsidiaries, all of the following determined in accordance with generally
accepted accounting principles: (i) the consolidated interest expense included
in a consolidated income statement (net of interest income), (ii) the portion of
any rental obligation in respect of any Capital Lease Obligation allocable to
interest expense in accordance with generally accepted accounting principles;
(iii) the amortization of Debt discounts (but excluding the amortization of fees
and expenses Incurred in connection with the amortization of the Old Credit
Facility and the amount of financing costs and expenses that are capitalized and
amortized); (iv) to the extent not included in total interest expense, any net
payments made or received during such period under interest rate or currency
swaps, hedges or exchanges or similar derivative agreements, including any
amortized portion of such payments and (v) any interest capitalized in
accordance with generally accepted accounting principles.
"Consolidated Net Income" of any Person means for any period
the consolidated net income (or loss) of such Person and its Consolidated
Subsidiaries for such period determined in accordance with generally accepted
accounting principles; provided that there shall be excluded therefrom (i) the
net income (or loss) of any Person acquired by such Person or a Subsidiary of
such Person in a pooling-of-interests transaction for any period prior to the
date of such transaction (subject to the final proviso of the definition of
Consolidated EBITDA Coverage Ratio when Consolidated Net Income is being
computed for purposes of calculating the Consolidated EBITDA Coverage Ratio),
(ii) the net income (but not net loss) of any Consolidated Subsidiary of such
Person to the extent restricted from the payment of dividends or the making of
distributions to such Person during such period, (iii) the net income (or loss)
of any Person that is not a Consolidated Subsidiary of such Person except to the
extent of the amount of dividends or other distributions actually paid to such
Person by such other Person during such period, (iv) extraordinary gains and
losses (and any unusual gains and losses arising outside the ordinary course of
business not included in extraordinary gains and losses), (v) net gains and
losses in respect of dispositions of assets other than in the ordinary course of
business and (vi) the tax effect of any of the items described in Clauses (i)
through (v) above.
"Consolidated Net Worth" of any Person at any date means the
consolidated stockholders" equity of such Person and its Consolidated
Subsidiaries at such date, as determined on a consolidated basis in accordance
with generally accepted accounting principles, less amounts attributable to
Redeemable Interests of such Person; provided, however, that, with respect to
the Company and its Restricted Subsidiaries, adjustments following the date of
the Indenture to the accounting books and records of the Company and its
Restricted Subsidiaries in accordance with Accounting Principles Board Opinions
Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting from the
acquisition of control of the Company by another Person shall not be given
effect to.
"Consolidated Subsidiaries" of any Person means all other
Persons that would be accounted for as consolidated Persons in such Person's
financial statements in accordance with
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generally accepted accounting principles; provided, however, that, for any
particular period during which any Subsidiary of the Company was an Unrestricted
Subsidiary, "Consolidated Subsidiaries" will exclude such Subsidiary for such
period (or portion thereof) during which it was an Unrestricted Subsidiary.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors of the Company who (a) was a member of such
Board of Directors on the date of the Indenture or (b) was nominated for
election or elected to such Board of Directors with the approval of, or whose
election to the Board of Directors was ratified by, at least a majority of the
Continuing Directors who were members of such Board of Directors at the time of
such nomination or election.
"Corporate Trust Office" means the office of the Trustee
maintained in Cincinnati, Ohio, at which at any particular time its principal
corporate trust business shall be administered, which as of the date hereof, is
located at 425 Walnut Street, Cincinnati, Ohio 45201-1118.
"Corporation" means a corporation, association, company,
joint-stock company or business trust.
"Credit Facility" means, collectively, the Credit Agreement
dated as of July 3, 1997 among the Company, certain of its Subsidiaries, the
financial institutions from time to time party thereto as Lenders and Issuing
Banks, The First National Bank of Chicago and Goldman Sachs Credit Partners
L.P., as syndication agents, and Citicorp USA, Inc., in its separate capacity as
collateral and administrative agent for the Lenders and Issuing Banks, and the
Loan Documents (as defined therein) (or other analogous documents entered into
in connection with any refinancing thereof), in each case as the same may from
time to time be amended, renewed, restated, supplemented or otherwise modified
at the option of the parties thereto; and any other agreement pursuant to which
any of the Debt, commitments, Obligations, costs, expenses, fees, reimbursements
and other indemnities payable or owing under the Credit Facility may be
refinanced, restructured, renewed, extended, refunded or increased, as any such
other agreement may from time to time at the option of the parties thereto be
amended, renewed, restated, supplemented, or otherwise modified.
"CVC" means 399 Venture Partners, Inc. and its Affiliates.
"Debt" means (without duplication), with respect to any
Person, whether recourse is to all or a portion of the assets of such Person,
(i) every obligation of such Person for money borrowed, (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including payment obligations Incurred in connection with the acquisition of
property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business), (v) every Capital Lease Obligation of such Person,
(vi) the maximum fixed redemption or repurchase price of Redeemable Interests of
such Person at the time of determination, (vii) the market value of any
indebtedness, obligation or other liability of
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such Person in respect of any interest rate or currency swap, hedge or exchange
or similar derivative agreement with any counterparty thereto, net of
indebtedness, obligations or other liabilities owed to such Person by such
counterparty and (viii) every obligation of the type referred to in Clauses (i)
through (vii) of another Person and all dividends of another Person the payment
of which, in either case, such Person has Guaranteed or for which such Person is
responsible or liable, directly or indirectly, jointly or severally, as obligor,
Guarantor or otherwise, but excluding from Debt (a) any indebtedness,
obligations or other liabilities subject to the Plan of Reorganization and (b)
any indebtedness or other liabilities Incurred in connection with obligations
Incurred to pay premiums for corporate owned life insurance policies purchased
by the Company in an aggregate amount not to exceed the aggregate cash value of
such policies.
"Defaulted Interest" has the meaning specified in Section
3.08.
"Defeasance" has the meaning specified in Section 12.02.
"Depositary" means, with respect to any Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Securities (or any successor
securities clearing agency so registered).
"Designated Senior Debt" means (i) all Obligations in respect
of the Credit Facility and (ii) all Obligations in respect of any other Senior
Debt of the Company in each case in an outstanding principal amount not less
than $10 million.
"DLJMB" means DLJ Merchant Banking Partners II, L.P. and its
Affiliates.
"Domestic Subsidiary" means a Subsidiary that is organized
under the laws of the United States or any state, district or territory thereof.
"DTC" means The Depository Trust Company, a New York
corporation.
"Event of Default" has the meaning specified in Section 5.01.
"Excepted Disposition" means a transfer, conveyance, sale,
lease or other disposition by the Company or any Restricted Subsidiary of (i)
the Capital Stock or any or all of the assets of Taylor Publishing Company, (ii)
certain assets of a Restricted Subsidiary that may be required to be divested,
in an amount not to exceed $8 million, in connection with an action by the
Federal Trade Commission relating to the acquisition by the Company of certain
assets of Helima-Helvetion International, Inc. or (iii) any other asset of the
Company or any Restricted Subsidiary for which the Company or any Restricted
Subsidiary receives a mortgage or a purchase money security interest the
principal amount of which at any time outstanding does not exceed $8 million or,
taken together with all other mortgages and purchase money security interests in
respect of any other such assets, the aggregate principal amount of which at any
time outstanding does not exceed $15 million.
"Exchange Act" means the Securities Exchange Act of 1934 (or
any successor statute), as it may be amended from time to time.
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21
"Exchange Notes" means the Notes issued pursuant to the
Exchange Offer and their Successor Notes.
"Exchange Offer" means an offer made by the Company pursuant
to the Registration Rights Agreement under an effective registration statement
under the Securities Act to exchange securities substantially identical to
Outstanding Notes (except for the differences provided for herein) for
Outstanding Notes.
"Exchange Registration Statement" means a registration
statement of the Company under the Securities Act registering Exchange Notes for
distribution pursuant to the Exchange Offer.
"Expiration Date" has the meaning specified in Section 104.
"Global Note" means a Note that is registered in the Note
Register in the name of a Depositary or a nominee thereof.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing any Debt, or dividends or distributions
on any equity security, of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person, (i) to purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or to purchase (or to advance or
supply funds for the purchase of) any security for the payment of such Debt,
(ii) to purchase property, securities or services for the purpose of assuring
the holder of such Debt of the payment of such Debt, or (iii) to maintain
working capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Debt (and "Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing); provided, however, that the Guarantee by any
Person shall not include endorsements by such Person for collection or deposit,
in either case, in the ordinary course of business.
"Guarantors" means (i) each of the Domestic Subsidiaries of
the Company that is a Wholly Owned Restricted Subsidiary on the date of the
Indenture and that executes a supplemental indenture to provide a Note Guarantee
in accordance with the provisions of this Indenture and (ii) any other
Subsidiary of the Company that executes a supplemental indenture to provide a
Note Guarantee in accordance with the provisions of this Indenture, and in each
case, which has not been released as a Guarantor pursuant to the provisions of
Section 14.06.
"Holders" means a Person in whose name a Note is registered in
the Note Register.
"Holdings" means Insilco Holding Co., a Delaware corporation.
"Incur" means, with respect to any Debt or other obligation of
any Person, to create, issue, incur (by conversion, exchange or otherwise),
assume, Guarantee or otherwise become liable in respect of such Debt or other
obligation or the recording, as required pursuant to generally accepted
accounting principles or otherwise, of any such Debt or other obligation on
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the balance sheet of such Person (and "Incurrence", "Incurred", "Incurrable" and
"Incurring" shall have meanings correlative to the foregoing); provided,
however, that a change in generally accepted accounting principles that results
in an obligation of such Person that exists at such time becoming Debt shall not
be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Notes" has the meaning specified in the recitals to
this Indenture.
"Initial Purchaser" means Donaldson, Lufkin & Jenrette
Securities Corporation, as initial purchaser of the Initial Notes from the
Company pursuant to the Purchase Agreement, or any initial purchaser of
Additional Notes under a Purchase Agreement.
"Insolvency Proceeding" has the meaning specified in Section
1302.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Rate, Currency or Commodity Price Agreement" of any
Person means any forward contract, futures contract, swap, option or other
financial agreement or arrangement (including, without limitation, caps, floors,
collars and similar agreements) relating to, or the value of which is dependent
upon, interest rates, currency exchange rates or commodity prices or indices
(excluding contracts for the purchase or sale of goods in the ordinary course of
business).
"Investment" by any Person in any other Person means (i) any
direct or indirect loan, advance or other extension of credit or capital
contribution to or for the account of such other Person (by means of any
transfer of cash or other property to any Person or any payment for property or
services for the account or use of any Person, or otherwise), (ii) any direct or
indirect purchase or other acquisition of any Capital Stock, bond, note,
debenture or other debt or equity security or evidence of Debt, or any other
ownership interest, issued by such other Person, whether or not such acquisition
is from such or any other Person, (iii) any direct or indirect payment by such
Person on a Guarantee of any obligation of or for the account of such other
Person or (iv) any other investment of cash or other property by such Person in
or for the account of such other Person.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, Receivables Sale,
deposit arrangement, security interest, lien, charge, easement (other than any
easement not materially impairing usefulness or marketability), encumbrance,
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including, without limitation, any conditional sale or other title retention
agreement having substantially the same economic effect as any of the
foregoing).
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"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Maturity", when used with respect to any security, means the
date on which the principal of such security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Net Available Proceeds" means cash, readily marketable cash
equivalents, readily marketable fixed-income securities and equity securities
traded on a national securities exchange or NASDAQ (valued, in the case of
securities, at the market value thereof when received by the Company or such
Restricted Subsidiary) received (including by way of sale or discounting of a
note, installment receivable or other receivable, but excluding any other
consideration received in the form of an assumption by any transferee of Debt or
other obligations relating to the properties or assets transferred, or otherwise
received in any non-cash form) from an Asset Disposition by the Company or any
Restricted Subsidiary, net of (i) all legal, title and recording tax expenses,
commissions and other fees and expenses Incurred and all federal, state,
provincial, foreign and local taxes required to be accrued as a liability as a
consequence of such Asset Disposition, (ii) all payments made by the Company or
any Restricted Subsidiary on any Debt which is secured by assets disposed of in
such Asset Disposition in accordance with the terms of any Lien upon or with
respect to such assets or which must by the terms of such Lien, or in order to
obtain a necessary consent to such Asset Disposition or by applicable law, be
repaid out of the proceeds from such Asset Disposition, (iii) amounts provided
as a reserve by the Company or any Restricted Subsidiary, in accordance with
generally accepted accounting principles, against liabilities under any
indemnification obligations to the buyer in such Asset Disposition (except to
the extent and at the time any such amounts are released from any such reserve,
such amounts shall constitute Net Available Proceeds) and (iv) all distributions
and other payments made to minority interest holders in Restricted Subsidiaries
or joint ventures as a result of such Asset Disposition.
"Non-Guarantee Period" means, if prior to the 90th day after
the date of this Indenture, all Wholly-Owned Restricted Subsidiaries on the date
of the Indenture which are Domestic Subsidiaries (other than Subsidiaries
entitled to be released from the Note Guarantee pursuant to Section 14.06) have
not executed and delivered a Supplemental Indenture providing a Note Guarantee,
the period commencing on such 90th day and ending on the date, if any, that all
such Domestic Subsidiaries (other than Subsidiaries entitled to be released from
the Note Guarantee pursuant to Section 14.06) have executed and delivered a
Supplemental Indenture providing a Note Guarantee.
"Notes" has the meaning specified in the first paragraph of
the recitals to this instrument and includes the Exchange Notes.
"Note Guarantee" means the Guarantee by each Guarantor,
pursuant to Section 9.01 and Article Fourteen.
"Note Register" and "Note Registrar" have the respective
meanings specified in Section 306.
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"Notice of Default" means a written notice of the kind
specified in Section 5.01(4).
"Obligations" mean any principal, interest, penalties,
expenses, fees, indemnities, reimbursements, damages and other liabilities
payable under the documentation governing any Debt.
"Offer Document" has the meaning specified in the definition
of "Offer to Purchase".
"Offer Expiration Date" has the meaning specified in the
definition of "Offer to Purchase".
"Offer to Purchase" means an offer, set forth in a writing
(the "Offer Document") sent by the Company by first class mail, postage prepaid,
to each Holder at its address appearing in the Note Register on the date of the
Offer Document, to purchase up to the principal amount of Notes specified in
such Offer Document at the purchase price specified in such Offer Document (as
determined pursuant to this Indenture). Unless otherwise required by applicable
law, the Offer Document shall specify an expiration date (the "Offer Expiration
Date") of the Offer to Purchase which shall be, subject to any contrary
requirements of applicable law, not less than 30 days or more than 60 days after
the date of such Offer Document and a settlement date (the "Purchase Date") for
the purchase of Notes within five Business Days after the Offer Expiration Date.
The Company shall notify the Trustee in writing at least 15 Business Days (or
such shorter period as is acceptable to the Trustee) prior to the mailing of the
Offer Document of the Company's obligation to make an Offer to Purchase, and the
Offer Document shall be mailed by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company. The Offer Document
shall contain information concerning the business of the Company and its
Subsidiaries which the Company in good faith believes will enable such Holders
to make an informed decision with respect to the Offer to Purchase (which at a
minimum will include (i) the most recent annual and quarterly financial
statements and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" required to be filed with the Trustee pursuant to Section
10.19 (which requirements may be satisfied by delivery of such documents
together with the Offer Document), (ii) a description of material developments
in the Company's business subsequent to the date of the latest of such financial
statements referred to in Clause (i) (including a description of the events
requiring the Company to make the Offer to Purchase), (iii) if applicable,
appropriate pro forma financial information concerning the Offer to Purchase and
the events requiring the Company to make the Offer to Purchase and (iv) any
other information required by applicable law to be included therein. The Offer
Document shall contain all instructions and materials necessary to enable such
Holder to tender Notes pursuant to the Offer to Purchase. The Offer Document
shall also state:
(1) the Section of this Indenture pursuant to which the Offer
to Purchase is being made;
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(2) the Offer Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Notes
offered to be purchased by the Company pursuant to the Offer to
Purchase (including, if less than 100%, the manner by which such amount
has been determined as required by this Indenture) (the "Purchase
Amount");
(4) the purchase price to be paid by the Company for each
$1,000 aggregate principal amount of Notes accepted for payment (as
specified pursuant to this Indenture);
(5) that the Holder may tender all or any portion of the Notes
registered in the name of such Holder and that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal
amount;
(6) the place or places where Notes are to be surrendered for
tender pursuant to the Offer to Purchase and a description of the
procedure which a Holder must follow to tender all or a portion of the
Notes;
(7) that interest on any Note not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will
continue to accrue;
(8) that on the Purchase Date the purchase price will become
due and payable upon each Note accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on
and after the Purchase Date;
(9) that each Holder electing to tender a Note pursuant to the
Offer to Purchase will be required to surrender such Note at the place
or places specified in the Offer Document prior to the close of
business on the Offer Expiration Date (such Note being duly endorsed
by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing and bearing
appropriate signature guarantees);
(10) that Holders will be entitled to withdraw all or any
portion of Notes tendered if the Company (or its Paying Agent)
receives, not later than the close of business on the Offer Expiration
Date, a telegram, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Note the Holder
tendered, the certificate number of the Note the Holder tendered and a
statement that such Holder is withdrawing all or a portion of its
tender;
(11) that (a) if Notes in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not
withdrawn pursuant to the Offer to Purchase, the Company shall purchase
all such Notes and (b) if Notes in an aggregate principal amount in
excess of the Purchase Amount are tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase Notes having an
aggregate principal amount equal to the Purchase Amount on a pro rata
basis (with such adjustments as may
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be deemed appropriate so that only Notes in denominations of $1,000 or
integral multiples thereof shall be purchased);
(12) that in the case of any Holder whose Note is purchased
only in part, the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service
charge, a new Note or Notes, of any authorized denomination as
requested by such Holder, in an aggregate principal amount equal to and
in exchange for the unpurchased portion of the Note so tendered; and
(13) that each Holder electing to tender a Note pursuant to
the Offer to Purchase will be required to complete the Option of Holder
to Elect Purchase.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer Document for such Offer to Purchase.
"Officers' Certificate" of the Company means a certificate
signed by the Chairman of the Board, a Vice Chairman of the Board, the President
or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Company, and delivered to the Trustee. One of
the officers signing an Officers' Certificate given pursuant to Section 10.21
shall be the principal executive, financial or accounting officer of the
Company. Unless the context otherwise requires, each reference herein to an
"Officers' Certificate" shall mean an Officers' Certificate of the Company.
References herein, or in any Note, to any officer of a Person that is a
partnership shall mean such officer of the partnership or, if none, of a general
partner of the partnership authorized thereby to act on its behalf.
"Old Credit Facility" means the revolving credit and term loan
facility to which the Company and certain of its Subsidiaries were parties that
was replaced by, and repaid in full by advances under, the Credit Facility.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be reasonably acceptable to the
Trustee. An Opinion of Counsel may have qualifications customary for opinions of
the type required and counsel delivering such Opinion of Counsel may rely on
certificates of the Company or government or other officials customary for
opinions of the type required, including certificates testifying as to matters
of fact.
"Original Notes" means all Notes other than Exchange Notes.
"Outstanding", when used with respect to Notes, means, as of
the date of determination, all Notes theretofore authenticated and delivered
under this Indenture or any indenture supplemental hereto, except:
(i) Notes theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the
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27
Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as a Paying Agent) for the Holders of such
Notes; provided that, if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Notes which have been defeased pursuant to Section
12.02; and
(iv) Notes which have been paid pursuant to Section 3.07
or in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than any
such Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Notes are held by a bona
fide purchaser in whose hands such Notes are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Company or any other obligor upon the Notes or the Note Guarantees or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee actually
knows to be so owned shall be so disregarded. Notes so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Notes on behalf of
the Company.
"Payment in full," together with any correlative term such as
"paid in full" and "pay in full," means with respect to any Obligation payment
in full thereof in cash.
"Permitted Interest Rate, Currency or Commodity Price
Agreement" of any Person means any Interest Rate, Currency or Commodity Price
Agreement entered into with one or more financial institutions that is designed
to protect such Person against fluctuations in interest rates or currency
exchange rates with respect to Debt Incurred or, in the case of currency or
commodity protection agreements, against currency exchange rate or commodity
price fluctuations relating to then existing financial obligations or then
existing or sold production and, in any case, not for purposes of speculation.
"Permitted Investment" means (i) Investments in the Company or
any Person that is, or as a consequence of such Investment becomes, a Restricted
Subsidiary, (ii) securities either issued directly or fully guaranteed or
insured by the government of the United States of America or any agency or
instrumentality thereof having maturities of not more than one year, (iii) time
deposits and certificates of deposit, demand deposits and banker's acceptances
having maturities of not more than one year from the date of deposit, of any
domestic commercial bank having capital and surplus in excess of $500 million
and having a peer group rating of B or better (or the
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equivalent thereof) by Thompson BankWatch, Inc. or outstanding long-term debt
rated BBB or better (or the equivalent thereof) by Standard & Poor's Ratings
Group or Baa2 or better (or the equivalent thereof) by Moody's Investors
Service, Inc., (iv) demand deposits made in the ordinary course of business and
consistent with the Company's customary cash management policy in any domestic
office of any commercial bank organized under the laws of the United States of
America or any state thereof, (v) insured deposits issued by commercial banks of
the type described in Clause (iv) above, (vi) mutual funds whose investment
guidelines restrict such funds' investments primarily to those satisfying the
provisions of any of Clauses (ii), (iii), (vii) and (viii) of this definition,
(vii) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in Clauses (ii) and (iii) above
entered into with any bank meeting the qualifications specified in Clause (iii)
above, (viii) commercial paper (other than commercial paper issued by an
Affiliate or Related Person) rated A-1 or the equivalent thereof by Standard &
Poor's Ratings Group or P-1 or the equivalent thereof by Moody's Investors
Service, Inc., and in each case maturing within 360 days, (ix) receivables owing
to the Company or a Restricted Subsidiary if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with customary
trade terms, (x) any Investment consisting of loans and advances to employees of
the Company or any Restricted Subsidiary for travel, entertainment, relocation,
employee incentive plans or other expenses in the ordinary course of business,
(xi) any Investment consisting of a Permitted Interest Rate, Currency or
Commodity Price Agreement, (xii) any Investment acquired by the Company or any
of its Restricted Subsidiaries (A) in exchange for any other Investment or
accounts receivable held by the Company or any such Restricted Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or the obligor with
respect to such accounts receivable or (B) as a result of a foreclosure by the
Company or any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment in
default, (xiii) any Investment that constitutes part of the consideration from
an Asset Disposition made pursuant to, and in compliance with, Section 10.17,
(xiv) Investments the payment for which consists exclusively of Capital Stock
(exclusive of Redeemable Interests) of the Company and (xv) Investments existing
as of the date of the Indenture of the Company or any Subsidiary of the Company.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Plan or Reorganization" means the Company's Amended and
Restated Plan of Reorganization dated November 23, 1992.
"Post-Petition Interest" means all interest accrued or
accruing after the commencement of any Insolvency Proceeding (and interest that
would accrue but for the commencement of any Insolvency Proceeding) in
accordance with and at the contract rate (including, without limitation, any
rate applicable upon default) specified in the agreement or instrument creating,
evidencing or governing any Senior Debt, whether or not, pursuant to applicable
law or otherwise, the claim for such interest is allowed as a claim in such
Insolvency Proceeding.
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"Predecessor Note" of any particular Note means every Note
issued before, and evidencing all or a portion of the same debt as that
evidenced by, such particular Note; and, for the purposes of this definition,
any Note authenticated and delivered under Section 3.07 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Note shall be deemed to evidence
the same debt as the mutilated, destroyed, lost or stolen Note.
"Preferred Stock" of any Person means Capital Stock of such
Person of any class or classes (however designated) that ranks prior, as to the
payment of dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to shares of
Capital Stock of any other class of such Person.
"Principals" means DLJMB and/or CVC.
"Public Offering" means any underwritten public offering of
Capital Stock pursuant to a registration statement filed under the Securities
Act.
"Purchase Agreement" means the Purchase Agreement, dated as of
November 2, 1998, among the Company, Holdings and Donaldson, Lufkin & Jenrette
Securities Corporation, as such agreement may be amended from time to time, and
any purchase agreement with the Company relating to Additional Notes, as such
agreement may be amended from time to time.
"Purchase Amount" has the meaning specified in the definition
of "Offer to Purchase".
"Purchase Date" has the meaning specified in the definition of
"Offer to Purchase".
"Purchase Price" has the meaning specified in the definition
of "Offer to Purchase".
"Receivables" means receivables, chattel paper, instruments,
documents or intangibles evidencing or relating to the right to payment of
money.
"Receivables Sale" of any Person means any sale of Receivables
of such Person (pursuant to a purchase facility or otherwise), other than in
connection with a disposition of the business operations of such Person relating
thereto or a disposition of defaulted Receivables for purpose of collection and
not as a financing arrangement.
"Redeemable Interest" of any Person means any equity security
of or other ownership interest in such Person that by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable) or
otherwise (including upon the occurrence of an event) matures or is required to
be redeemed (pursuant to any sinking fund obligation or otherwise) or is
convertible into or exchangeable for Debt or is redeemable at the option of the
holder thereof, in whole or in part, at any time prior to the final Stated
Maturity of the Notes.
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"Redemption Date", when used with respect to any Note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Notes" means the Exchange Notes and all other
Notes sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their respective Successor
Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 9, 1998, by and between the Company and
Donaldson, Lufkin & Jenrette Securities Corporation, as Initial Purchaser, as
such agreement may be amended from time to time, and, with respect to any
Additional Notes, one or more registration rights agreements between the Company
and the other parties thereto, as such agreement(s) may be amended, from time to
time, relating to rights given by the Company to the purchasers of Additional
Notes to register or exchange such Additional Notes under the Securities Act.
"Regular Record Date" for the interest payable on any Interest
Payment Date means February 1 and August 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date.
"Reinvested Amounts", with respect to any Asset Disposition,
means amounts invested, within one year from the later of the date of the
related Asset Disposition or the receipt of the Net Available Proceeds from such
Asset Disposition, in assets that will be used in the same or a substantially
similar or related business of the Company or any of its Wholly Owned Restricted
Subsidiaries as conducted prior to such Asset Disposition (determined by the
Board of Directors in good faith, as evidenced by a resolution of such Board of
Directors).
"Related Party" means, with respect to any Principal, (a) any
controlling stockholder or partner of such Principal on the date of the
Indenture, or (b) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding
(directly or through one or more Subsidiaries) a 51% or more controlling
interest of which consist of the Principals and/or such other Persons referred
to in the immediately preceding clauses (a) or (b).
"Related Person" of any Person means any other Person directly
or indirectly owning (a) 5% or more of the outstanding Common Stock of such
Person (or, in the case of a Person that is not a corporation, 5% or more of the
equity interest in such Person) or (b) 5% or more of the combined voting power
of the Voting Stock of such Person.
"Required Filing Dates" has the meaning specified in Section
10.19.
"Restricted Global Note" has the meaning specified in Section
2.01.
"Restricted Payment" has the meaning specified in Section
10.12.
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"Restricted Securities" means all Notes required pursuant to
Section 3.06(c) to bear a Restricted Securities Legend. Such term includes the
Restricted Global Note.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"Restricted Securities Legend" means a legend substantially in
the form of the legend required in the form of Note set forth in Section 2.02 to
be placed upon a Restricted Note.
"Restricted Subsidiary" means (i) at any date, a Subsidiary of
the Company that is not an Unrestricted Subsidiary as of such date and (ii) for
any period, a Subsidiary of the Company that for any portion of such period is
not an Unrestricted Subsidiary, provided that such term shall mean such
Subsidiary only for such portion of such period.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Notes" means the Notes purchased by the Initial
Purchaser from the Company pursuant to the Purchase Agreement.
"Securities Act" means the Securities Act of 1933 (or any
successor statute), as it may be amended from time to time.
"Securities Act Legend" means a Restricted Securities Legend.
"Senior Debt" means with respect to any Person (i) all Debt
and other Obligations owing in respect of the Credit Facility (including,
without limitation, all loans, letters of credit and other extensions of credit
thereunder and all expenses, fees, reimbursements, indemnities and other amounts
owing pursuant thereto), (ii) all Debt referred to in Clauses (i), (ii), (iii),
(v), (vii) or (viii) of the definition of Debt, whether Incurred on or prior to
the date of the Indenture or thereafter Incurred, and (iii) amendments,
modifications, renewals, extensions, refinancings and refundings of any such
Debt; provided, however, the following shall not constitute Senior Debt: (a) any
Debt owed to a Person when such Person is a Subsidiary of the Company, (b) any
Debt which by the terms of the instrument creating or evidencing the same is
pari passu with or subordinate in right of payment to the Notes, (c) any Debt
Incurred in violation of the Indenture or (d) any Debt which is subordinate in
right of payment in any respect to any other Debt of such Person. For purposes
of this definition, "Debt" includes any obligation to pay principal, premium (if
any), interest, penalties, reimbursement or indemnity amounts, fees and expenses
(including Post-Petition Interest). To the extent any payment of Senior Debt
(whether by or on behalf of the Company, as proceeds of security or enforcement
or any right of setoff or otherwise) is declared to be fraudulent or
preferential, set aside or required to be paid to a trustee, receiver or other
similar party under any bankruptcy, insolvency, receivership or similar law,
then if such payment is recovered by, or paid over to, such trustee, receiver or
other similar party, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred. All Senior Debt shall be and remain Senior Debt for all
purposes of the Indenture, whether or not subordinated in any Insolvency
Proceeding.
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"Shares" means shares of the Company"s Common Stock, $.001 par
value per share.
"Shelf Registration Statement" means a shelf registration
statement under the Securities Act filed by the Company, if required by, and
meeting the requirements of, the Registration Rights Agreement (including
pursuant to Section 2(b) but excluding Section 2(c) of the initial Registration
Right Agreement and the Shelf Registration Statement containing a market making
prospectus) registering Notes for resale.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.08.
"Special Redemption" has the meaning set forth in Section
11.09.
"Special Redemption Account" has the meaning set forth in
Section 11.09.
"Special Redemption Date" has the meaning set forth in Section
11.09.
"Stated Maturity", when used with respect to any Note or any
instalment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such instalment of interest,
as the case may be, is due and payable.
"Subordinated Debt" means Debt of the Company as to which the
payment of principal of (and premium, if any) and interest and other payment
obligations in respect of such Debt shall be subordinate to the prior payment in
full of the Notes to at least the following extent: (i) no payments of principal
of (or premium, if any) or interest on or otherwise due in respect of such Debt
may be permitted for so long as any default in the payment of principal (or
premium, if any) or interest on the Notes exists; (ii) in the event that any
other default exists with respect to the Notes that with the passing of time or
the giving of notice, or both, would constitute an event of default, upon notice
by Holders of 25% or more in principal amount of the Notes to the Trustee, the
Trustee shall have the right to give notice to the Company and the holders of
such Debt (or trustees or agents therefor) of a payment blockage, and thereafter
no payments of principal of (or premium, if any) or interest on or otherwise due
in respect of such Debt may be made for a period of 179 days from the date of
such notice; and (iii) such Debt may not (x) provide for payments of principal
of such Debt at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance, retirement
or repurchase thereof by the Company (including any redemption, retirement or
repurchase which is contingent upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such Debt upon an event of
default thereunder), in each case prior to the final Stated Maturity of the
Notes or (y) permit redemption or other retirement (including pursuant to an
offer to purchase made by the Company) of such other Debt at the option of the
holder thereof prior to the final Stated Maturity of the Notes, other than a
redemption or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Company) which is
conditioned upon a change of control of the Company pursuant to provisions
substantially similar to those described under "Change of Control" (and which
shall provide that such Debt will not be repurchased pursuant to such provisions
prior to the
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Company's repurchase of the Notes required to be repurchased by the Company
pursuant to the provisions described under "Change of Control").
"Subordinated Obligations" has the meaning specified in
Section 13.01.
"Subordinated Securities" mean securities distributed to the
holders of the Notes (i) in an Insolvency Proceeding, pursuant to a plan of
reorganization consented to by each class of Senior Debt or (ii) outside an
Insolvency Proceeding, but only if, in each case, all of the terms and
conditions of such securities (including, without limitation, term, tenor,
interest, amortization, subordination, covenants and defaults) are in all
material respects at least as favorable (and provide the same relative benefits)
to the holders of Senior Debt and, in the case of an Insolvency Proceeding, to
the holders of any Note distributed in such Insolvency Proceeding on account of
Senior Debt as the terms and conditions of the Notes and the Indenture are and
provide to the holders of Senior Debt.
"Subsidiary" of any Person means (i) a corporation more than
50% of the combined voting power of the outstanding Voting Stock of which is
owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person or by such Person and one or more Subsidiaries
thereof or (ii) any other Person (other than a corporation) in which such Person
or one or more other Subsidiaries of such Person or such Person and one or more
other Subsidiaries thereof, directly or indirectly, has at least a majority
ownership and power to direct the policies, management and affairs thereof.
"Successor Company" has the meaning specified in Section 8.01.
"Successor Note" of any particular Note means every Note
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 307 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"10 1/4% Notes' means the Company's existing 10-1/4% Senior
Subordinated Notes due 2007 in the aggregate principal amount of $150,000,000.
"10 1/4% Offer to Purchase" means the offer to repurchase the
10-1/4% Notes at a purchase price equal to, 101% of the principal amount
thereof, plus accrued interest that the Company was required to make pursuant
to the 10-1/4% Note Indenture in connection with the Mergers (as defined in
the initial Purchase Agreement).
"Tender Offer" means the Company's offer to purchase,
commenced July 11, 1997, up to 2,857,142 Shares at a price of $38.50 per Share.
"Transactions" means (i) the Tender Offer, (ii) the repurchase
by the Company of Shares from Robert L. Smialek at $38.50 per Share pursuant to
a negotiated share purchase agreement entered into in July 1997, (iii) the
repurchase by the Company of Shares from Water Street at $38.50 per Share
pursuant to a negotiated share purchase agreement entered into in July
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1997, (iv) the entering into by the Company of the Credit Facility and (v) the
offering of the 10 1/4 % Notes.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Units" means the 120,000 units each consisting of $1,000
principal amount of Notes and one Warrant.
"Unpermitted Debt" has the meaning specified in Section 1020.
"Unrestricted Notes Certificate" means a certificate
substantially in the form set forth in Annex A.
"Unrestricted Subsidiary" means (i) at any date, a Subsidiary
of the Company that is an Unrestricted Subsidiary in accordance with the
provisions of Section 1020 and (ii) for any period, a Subsidiary of the Company
that for any portion of such period is an Unrestricted Subsidiary in accordance
with the provisions of Section 1020, PROVIDED that such term shall mean such
Subsidiary only for such portion of such period.
"U.S. Person" means (i) any individual resident in the United
States, (ii) any partnership or corporation organized or incorporated under the
laws of the United States, (iii) any estate of which an executor or
administrator is a U.S. Person (other than an estate governed by foreign law and
of which at least one executor or administrator is a non-U.S. Person who has
sole or shared investment discretion with respect to its assets), (iv) any trust
of which any trustee is a U.S. Person (other than a trust of which at least one
trustee is a non-U.S. Person who has sole or shared investment discretion with
respect to its assets and no beneficiary of the trust (and no settlor if the
trust is revocable) is a U.S. Person), (v) any agency or branch of a foreign
entity located in the United States, (vi) any non-discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary for
the benefit or account of a U.S. Person, (vii) any discretionary or similar
account (other than an estate or trust) held by a dealer or other fiduciary
organized, incorporated or (if an individual) resident in the United States
(other than such an account held for the benefit or account of a non-U.S.
Person), (viii) any partnership or corporation organized or incorporated under
the laws of a foreign jurisdiction and formed by a U.S. Person principally for
the purpose of investing in securities not registered under the Securities Act
(unless it is organized or incorporated, and owned, by accredited investors
within the meaning of Rule 5.01(a) under the Securities Act who are not natural
persons, estates or trusts); provided, however, that the term "U.S. Person" does
not include (A) a branch or agency of a U.S. Person that is located and
operating outside the United States for valid business purposes as a locally
regulated branch or agency engaged in the banking or insurance business,
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(B) any employee benefit plan established and administered in accordance with
the law, customary practices and documentation of a foreign country and (C) the
international organizations set forth in Section 902(o)(7) of Regulation S under
the Securities Act and any other similar international organizations, and their
agencies, affiliates and pension plans.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president of such Person, whether or not designated by a
number or a word or words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
"Warrants" means the 120,000 warrants issued as Units with the
Initial Notes to purchase an aggregate of 62,400 shares of Holdings Common Stock
(subject to adjustment). Each Warrant will be exercisable for 0.52 of a share of
Holdings Common Stock (subject to adjustment) initially at an exercise price of
$45 per share.
"Water Street" means Water Street Corporate Recovery Fund I,
L.P.
"Wholly Owned Restricted Subsidiary" means a Restricted
Subsidiary all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
the Company, Holdings or by one or more Wholly Owned Restricted Subsidiaries or
by the Company, Holdings and one or more Wholly Owned Restricted Subsidiaries.
SECTION 1.02 COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company or a Guarantor
to the Trustee to take any action under any provision of this Indenture, the
Company or such Guarantor shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act or this Indenture.
Each such certificate or opinion shall be given in the form of an Officers"
Certificate, if to be given by an officer of the Company or of such Guarantor,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(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;
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(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.03 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04 ACTS OF HOLDERS; RECORD DATES.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a
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notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
The ownership of Notes shall be proved by the Note Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Notes, provided that the Company may not set a record date for, and
the provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Notes on such record date, and no other Holders, shall be entitled
to take the relevant action, whether or not such Holders remain Holders after
such record date; provided that no such action shall be effective hereunder
unless taken on or prior to the applicable Expiration Date by Holders of the
requisite principal amount of Outstanding Notes on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Notes
on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Notes in the manner
set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Notes entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.02, (iii) any request to institute proceedings referred
to in Section 5.07(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding Notes
on such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Notes on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a
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new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding Notes
on the date such action is taken. Promptly after any record date is set pursuant
to this paragraph, the Trustee, at the Company's expense, shall cause notice of
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of Notes in the
manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Notes in the manner set forth in Section 1.06, on
or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Note may do so with
regard to all or any part of the principal amount of such Note or by one or more
duly appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.05 NOTICES, ETC., TO TRUSTEE AND THE COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or at any other
address previously furnished in writing to the Holders or the Company
by the Trustee, or, with respect to notices by the Company, transmitted
by facsimile transmission (confirmed by guaranteed overnight courier)
to the following facsimile number: (513) 632-5511 or to any other
facsimile number previously furnished in writing to the Company by the
Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to it addressed to it at the address of the Company's
principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by
the Company or, with respect to notices by the
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Trustee, transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile number: (614) 791-3197 or
to any other facsimile number previously furnished in writing to the
Trustee by the Company.
SECTION 1.06 NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at its address as it appears in the Note
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be. Until such time as this Indenture shall be qualified under the Trust
Indenture Act, this Indenture, the Company and the Trustee shall be deemed for
all purposes hereof to be subject to and governed by the Trust Indenture Act to
the same extent as would be the case if this Indenture were so qualified on the
date hereof.
SECTION 1.08 EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
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SECTION 1.09 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10 SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Notes 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 1.11 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Notes, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders of Notes, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12 GOVERNING LAW.
THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
SECTION 1.13 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Purchase Date or Stated Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of interest or principal (and premium, if any) need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, Redemption Date or Purchase Date
or at the Stated Maturity, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date, Purchase Date or
Stated Maturity, as the case may be.
ARTICLE TWO
Note Forms
SECTION 2.01 FORMS GENERALLY; INITIAL FORMS OF RULE 144A NOTES.
The Notes and the Trustee's certificates of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently
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herewith, be determined by the officers executing such Notes, as evidenced by
their execution thereof.
The definitive Notes shall be printed, lithographed, engraved,
typewritten or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Notes may be listed, all as determined by the
officers executing such Notes, as evidenced by their execution thereof.
Upon their original issuance, Rule 144A Notes shall be issued
in the form of one or more Global Notes registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee, as custodian for DTC,
for credit by DTC to the respective accounts of beneficial owners of the Notes
represented thereby (or such other accounts as they may direct). Such Global
Notes, together with their Successor Notes which are Global Notes are
collectively herein called the "Restricted Global Note".
SECTION 2.02 FORM OF FACE OF NOTE.
[IF THE NOTE IS A RESTRICTED NOTE, THEN INSERT -- THIS NOTE
(OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OR, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER:
(1) REPRESENTS THAT (A)IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1),(2),(3) OR (7) OR REGULATION D UNDER THE SECURITIES ACT (AN
"IAI"))
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVED IS A QIB PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (C) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (D) TO AN IAI THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT, (E) IN ACCORDANCE WITH ANOTHER
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EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION COUNSEL ACCEPTABLE TO THE COMPANY) OR (F)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
[IF THE NOTE IS A GLOBAL NOTE, THEN INSERT -- THIS NOTE IS A
GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A NOTE REGISTERED, AND NO TRANSFER OF THIS
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.]
[IF THE NOTE IS A GLOBAL NOTE AND THE DEPOSITORY TRUST COMPANY
IS TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- 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.]
[IF THE NOTE IS ISSUED AS PART OF A UNIT PRIOR TO THE
SEPARATION DATE, THEN INSERT -- THE NOTES EVIDENCED BY THIS CERTIFICATE ARE
INITIALLY ISSUED AS PART OF AN ISSUANCE OF UNITS (THE "UNITS"), EACH OF WHICH
CONSIST OF $1,000 PRINCIPAL AMOUNT AT MATURITY OF THE 12% SENIOR SUBORDINATED
NOTES DUE 2007 OF INSILCO CORPORATION. (THE "NOTES") AND ONE WARRANT (THE
"WARRANTS") INITIALLY ENTITLING THE HOLDER THEREOF TO PURCHASE 0.52 OF A SHARE,
PAR VALUE $0.001 PER SHARE, OF INSILCO HOLDING CO.
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PRIOR TO THE EARLIEST TO OCCUR OF (I) 180 DAYS AFTER THE
CLOSING OF THE OFFERING OF THE UNITS, (II) THE DATE ON WHICH A REGISTRATION
STATEMENT WITH RESPECT TO A REGISTERED EXCHANGE OFFER FOR THE NOTES IS DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (III) THE DATE A SHELF REGISTRATION
STATEMENT WITH RESPECT TO THE NOTES IS DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (IV) SUCH DATE AS DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION IN
ITS SOLE DISCRETION SHALL DETERMINE AND (V) THE OCCURRENCE OF A CHANGE OF
CONTROL (AS DEFINED IN THE INDENTURE GOVERNING THE NOTES), THE NOTES EVIDENCED
BY THIS CERTIFICATE MAY NOT BE TRANSFERRED OR EXCHANGED SEPARATELY FROM, BUT MAY
BE TRANSFERRED OR EXCHANGED ONLY TOGETHER WITH, THE WARRANTS.]
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INSILCO CORPORATION
12% SENIOR SUBORDINATED NOTES DUE 2007
[If Restricted Global Note - CUSIP No. ________]
No. ________ $___________
INSILCO CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________, or registered assigns,
the principal sum of __________________ Dollars (such amount the "principal
amount" of this Note) [IF THE NOTE IS A GLOBAL NOTE, THEN INSERT --, or such
other principal amount (which, when taken together with the principal amounts of
all other Outstanding Notes, shall not exceed $150,000,000 in the aggregate at
any time) as may be set forth in the records of the Trustee hereinafter referred
to in accordance with the Indenture, on August 15, 2007 and to pay interest
thereon from [INSERT DATE OF ISSUANCE] or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
February 15 and August 15 in each year, commencing [INSERT FIRST INTEREST
PAYMENT DATE], at the rate of 12.00% per annum (or during any Non-Guarantee
Period (as defined in the Indenture), 12.125% per annum) (the "Base Interest"),
until the principal hereof is paid or made available for payment [IF THE NOTE IS
AN ORIGINAL NOTE, THEN INSERT - - and pay Liquidated Damages, if any, payable
pursuant to the Registration Rights Agreement (as defined in the Indenture);
provided that any amount of principal of (and premium, if any) and interest on
this Note which is overdue shall bear interest (to the extent that payment
thereof shall be legally enforceable) at the rate of 14.00% per annum (or during
any Non-Guarantee Period, 14.125% per annum), from the date such amount is due
to the day it is paid or made available for payment, and such overdue interest
shall be payable on demand. [IF THE NOTE IS AN ORIGINAL NOTE, THEN INSERT -- All
references to interest in this Note shall include any Liquidated Damages payable
with respect to this Note pursuant to the Registration Rights Agreement.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be February 1 or August 1 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date [IF THE NOTE IS AN
ORIGINAL NOTE, THEN INSERT --, provided that any accrued and unpaid interest on
this Note upon the issuance of an Exchange Note in exchange for this Note shall
cease to be payable to the Holder hereof and shall be payable on the next
Interest Payment Date for such Exchange Note to the Holder thereof on the
related Regular Record Date]. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on the relevant
Regular Record Date and may either be paid to the Person in whose name this Note
(or one or more Predecessor Notes) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Notes not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Notes
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may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture. Interest on this Note shall be computed on
the basis set forth in the Indenture.
Payment of the principal of (and premium, if any) and interest
on this Note will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, New York and at
any other office or agency maintained by the Company for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register; provided further that all payments of the principal (and premium, if
any) and interest on Notes, the Holders of which have given wire transfer
instructions to the Company or its agent at least 10 Business Days prior to the
applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by such Holders in such
instructions.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
INSILCO CORPORATION
By________________________________
Attest:
- - -------------------------
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SECTION 2.03 FORM OF REVERSE OF NOTE.
This Note is one of a duly authorized issue of Notes of the
Company designated as its 12% Senior Subordinated Notes Due 2007 (herein called
the "Notes"), limited in aggregate principal amount to $150,000,000, issued and
to be issued under an Indenture, dated as of November 9, 1998 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company and Star Bank, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the Notes
and of the terms upon which the Notes, are, and are to be, authenticated and
delivered.
The Notes are subject to redemption upon not less than 30 nor
more than 60 days' notice by mail, to each Holder of Notes to be redeemed at
such Holder's address appearing in the Note Register, in amounts of $1,000 or an
integral multiple of $1,000 principal amount, at the following Redemption Prices
(expressed as percentages of principal amount) plus any accrued but unpaid
interest to but excluding the Redemption Date if redeemed during the 12-month
period beginning on August 15 of each of the years indicated below:
YEAR REDEMPTION PRICE
---- ----------------
2002 106.000%
2003 104.000%
2004 102.000%
2005 and thereafter 100.000%
provided that interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Notes, or one or more
Predecessor Notes, of record at the close of business on the relevant Regular
Record Dates referred to on the face hereof.
Except as described in the next paragraph, the Notes do not
have the benefit of any mandatory redemption or sinking fund obligations.
The Indenture provides that in certain circumstances a portion
of the Notes will be subject to a mandatory Special Redemption. In addition, the
Indenture provides that, subject to certain conditions, if (i) certain Net
Available Proceeds are available to the Company as a result of Asset
Dispositions or (ii) a Change of Control occurs, the Company shall be required
to make an Offer to Purchase for all or a specified portion of the Notes.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Note in part only, a new Note or Notes of like tenor for the
unredeemed or unpurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
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If an Event of Default shall occur and be continuing, the
principal of all the Notes may be declared due and payable in the manner and
with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Note or (ii) certain restrictive
covenants and Events of Default with respect to this Note, in each case upon
compliance with certain conditions set forth therein.
The Notes shall be subordinated in right of payment to Senior
Debt of the Company as provided in the Indenture.
If the Note Guarantee is provided by any Guarantor, the holder
of the Note shall have the benefit of the Note Guarantee as provided in, and
subject to the terms of, the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes under the
Indenture at any time by the Company and the Trustee with the consent of the
Holders of at least two-thirds in aggregate principal amount of the Notes at the
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Notes at the time
Outstanding, on behalf of the Holders of all the Notes, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
As provided in and subject to the provisions of the Indenture,
the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes at the
time Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in principal amount of Notes at the time Outstanding a
direction inconsistent with such request and shall have failed to institute any
such proceeding for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to certain suits described in the
Indenture, including any suit instituted by the Holder of this Note for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein (or, in the case of
redemption, on or after the Redemption Date or, in the case of any purchase of
this Note required to be made pursuant to an Offer to Purchase, on the Purchase
Date).
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of (and premium, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
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As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Note Register, upon surrender of this Note for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Note Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Notes, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons
in denominations of $1,000 principal amount and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Notes are exchangeable for a like aggregate principal amount of Notes of
a different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Note shall be governed by and construed
in accordance with the laws of the State of New York.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased in its
entirety by the Company pursuant to Section 10.17 or 10.18 of the Indenture,
check the box:
[ ]
If you want to elect to have only a part of this Note
purchased by the Company pursuant to Section 10.17 or 10.18 of the Indenture,
state the principal amount of this Note you want to elect to have so purchased
by the Company: $__________
Dated: Your Signature:_____________________________
(Sign exactly as name
appears on the other
side of this Note)
Signature Guarantee:_____________________________________________
Notice: Signature(s) must be guaranteed by
an "eligible guarantor institution" meeting
the requirements of the Trustee, which
requirements will include membership or
participation in STAMP or such other
"signature guarantee program" as may be
determined by the Trustee in addition to, or
in substitution for STAMP, all in accordance
with the Securities Exchange Act of 1934, as
amended.
SECTION 2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Notes referred to in the within-mentioned
Indenture.
------------------------------------,
as Trustee
Dated: By ___________________________________
Authorized Signatory
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ARTICLE THREE
The Notes
SECTION 3.01 TITLE AND TERMS.
The aggregate principal amount of Notes which may be
authenticated and delivered under this Indenture is limited to $150,000,000,
except for Notes authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other Notes pursuant to Sections 3.03, 3.04,
3.05, 3.06, 3.07, 9.06, 11.08 or in connection with an Offer to Purchase
pursuant to Sections 10.17 or 10.18. The Company may issue Exchange Notes from
time to time pursuant to an Exchange Offer, in each case pursuant to a Board
Resolution and subject to Section 3.03, in authorized denominations in exchange
for a like principal amount of Original Notes. Upon any such exchange the
Original Notes shall be cancelled in accordance with Section 3.10 and shall no
longer be deemed Outstanding for any purpose. In no event shall the aggregate
principal amount of Original Notes and Exchange Notes Outstanding exceed
$150,000,000.
The Notes shall be designated as the 12% Senior Subordinated
Notes of the Company and the Original Notes shall be known as the "12.00% Senior
Subordinated Notes due 2007, Series A" and the Exchange Notes shall be known as
the "12.00% Senior Subordinated Notes due 2007, Series B" in each case, of the
Company. The Stated Maturity of the Notes shall be August 15, 2007 and they
shall bear interest at the rate of 12.00% per annum (or during any Non-Guarantee
Period, at the rate of 12.125% per annum) (the "Base Interest"), from their date
of issuance or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable semiannually on
February 15 and August 15, commencing February 15, 1998, until the principal
thereof is paid or made available for payment and, with respect to any Original
Notes, Liquidated Damages, if any, will be payable pursuant to the Registration
Rights Agreement; provided that any amount of principal of (and premium, if any)
and interest on the Notes which is overdue shall bear interest (to the extent
that payment thereof shall be legally enforceable) at the rate of 14.00% per
annum, or during any Non-Guarantee Period at the rate of 14.125% per annum, from
the date such amount is due to the day it is paid or made available for payment,
and such overdue interest shall be payable on demand. All references to interest
in this Indenture shall include any Liquidated Damages payable with respect to
the Notes pursuant to the Registration Rights Agreement. The Company shall
provide written notice to the Trustee of any period during which Liquidated
Damages are payable or of any Non-Guarantee Period at the end of any such
period.
The principal of (and premium, if any) and interest on the
Notes shall be payable at the office or agency of the Company in the Borough of
Manhattan, The City of New York, New York, maintained for such purpose and at
any other office or agency maintained by the Company for such purpose; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Note Register; provided further that all payments of the principal
(and premium, if any) and interest on Notes, the Holders of which have given
wire transfer
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instructions to the Company or its agent at least 10 Business Days prior to the
applicable payment date will be required to be made by wire transfer of
immediately available funds to the accounts specified by such Holders in such
instructions.
The Notes shall be subject to redemption as provided in
Article Eleven.
The Notes shall be subject to repurchase by the Company
pursuant to an Offer to Purchase as provided in Sections 10.17 and 10.18.
The Notes shall not have the benefit of any sinking fund
obligations.
The Notes shall be subject to defeasance at the option of the
Company as provided in Article Twelve.
Unless the context otherwise requires, the Original Notes
(including any Additional Notes) and the Exchange Notes (including any
Additional Notes) shall constitute one series for all purposes under the
Indenture, including with respect to any amendment, waiver, acceleration or
other Act of Holders, redemption or Offer to Purchase.
SECTION 3.02 DENOMINATIONS.
The Notes shall be issuable only in registered form without
coupons, and only in denominations of $1,000 principal amount and, any integral
multiple thereof.
SECTION 3.03 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Notes shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, Chief Executive Officer,
its President or one of its Vice Presidents, attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the Notes
may be manual or facsimile.
Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Notes or did
not hold such offices at the date of such Notes.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Notes executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Notes; and the Trustee in accordance with
such Company Order shall authenticate and deliver such Notes as in this
Indenture provided and not otherwise.
At any time and from time to time after the execution and
delivery of this Indenture and after the effectiveness of a registration
statement under the Securities Act with respect thereto, the Company may deliver
Exchange Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of
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such Exchange Notes and a like principal amount of Original Notes for
cancellation in accordance with Section 3.10 of this Indenture, and the Trustee
in accordance with the Company Order shall authenticate and deliver such Notes.
Prior to authenticating such Exchange Notes, and accepting any additional
responsibilities under this Indenture in relation to such Notes, the Trustee
shall be entitled to receive, if requested, and (subject to Section 6.01) shall
be fully protected in relying upon, an Opinion of Counsel stating in substance
(a) that all conditions hereunder precedent to the
authentication and delivery of such Exchange Notes have been complied
with and that such Exchange Notes, when such Notes have been duly
authenticated and delivered by the Trustee (and subject to any other
conditions specified in such Opinion of Counsel), have been duly issued
and delivered and will constitute valid and legally binding obligations
of the Company, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors" rights and to general equity principles; and
(b) that the issuance of the Exchange Notes in exchange for
Original Notes has been effected in compliance with the Securities Act.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any Note
shall be conclusive evidence, and the only evidence, that such Note has been
duly authenticated and delivered hereunder.
SECTION 3.04 TEMPORARY NOTES.
Pending the preparation of definitive Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Notes, which Notes are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes, in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as evidenced by
their execution thereof.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes, upon surrender of the temporary Notes at any office or agency
of the Company designated pursuant to Section 10.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
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SECTION 3.05 GLOBAL NOTES.
(a) Each Global Note authenticated under this Indenture shall
be registered in the name of the Depositary designated by the Company for such
Global Note or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Note shall constitute a
single Note for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes registered, and no
transfer of a Global Note in whole or in part may be registered, in the name of
any Person other than the Depositary for such Global Note or a nominee thereof
unless (i) such Depositary (A) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Note or (B) has ceased to be a
clearing agency registered as such under the Exchange Act, and in either case
the Company fails to appoint a successor Depositary within 90 days, (ii) the
Company, at its option, executes and delivers to the Trustee a Company Order
stating that it elects to cause the issuance of the Notes in certificated form
and that all Global Notes shall be exchanged in whole for Notes that are not
Global Notes (in which case such exchange shall be effected by the Trustee) or
(iii) there shall have occurred and be continuing an Event of Default or any
event which after notice or lapse of time or both would be an Event of Default
with respect to such Global Note.
(c) If any Global Note is to be exchanged for other Notes or
cancelled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Note Registrar, for exchange or cancellation as
provided in this Article Three. If any Global Note is to be exchanged for other
Notes or cancelled in part, or if another Note is to be exchanged in whole or in
part for a beneficial interest in any Global Note, then either (i) such Global
Note shall be so surrendered for exchange or cancellation as provided in this
Article Three or (ii) the principal amount thereof shall be reduced or increased
by an amount equal to the portion thereof to be so exchanged or cancelled, or
equal to the principal amount of such other Note to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate
adjustment made on the records of the Trustee, as Note Registrar, whereupon the
Trustee, in accordance with the Applicable Procedures, shall instruct the
Depositary or its authorized representative to make a corresponding adjustment
to its records. Upon any such surrender or adjustment of a Global Note, the
Trustee shall, subject to Section 3.06(c) and as otherwise provided in this
Article Three, authenticate and deliver any Notes issuable in exchange for such
Global Note (or any portion thereof) to or upon the order of, and registered in
such names as may be directed by, the Depositary or its authorized
representative. Upon the request of the Trustee in connection with the
occurrence of any of the events specified in the preceding paragraph, the
Company shall promptly make available to the Trustee a reasonable supply of
Notes that are not in the form of Global Notes. The Trustee shall be entitled to
rely upon any order, direction or request of the Depositary or its authorized
representative which is given or made pursuant to this Article Three if such
order, direction or request is given or made in accordance with the Applicable
Procedures.
(d) Every Note authenticated and delivered upon registration
of transfer of, or in exchange for or in lieu of, a Global Note or any portion
thereof, whether pursuant to this Article Three or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global
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Note, unless such Note is registered in the name of a Person other than the
Depositary for such Global Note or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Note, shall be the Holder of such Global Note for all purposes under the
Indenture and the Notes, and owners of beneficial interests in a Global Note
shall hold such interests pursuant to the Applicable Procedures. Accordingly,
any such owner"s beneficial interest in a Global Note will be shown only on, and
the transfer of such interest shall be effected only through, records maintained
by the Depositary or its nominee or its Agent Members.
SECTION 3.06 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
GENERALLY; RESTRICTIONS ON TRANSFER AND EXCHANGE;
SECURITIES ACT LEGENDS.
(a) REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE
GENERALLY. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company designated pursuant to Section 10.02 being
herein sometimes collectively referred to as the "Note Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers and exchanges of Notes.
The Trustee is hereby appointed "Note Registrar" for the purpose of registering
Notes and transfers and exchanges of Notes as herein provided. Such Note
Register shall distinguish between Original Notes and Exchange Notes.
Upon surrender for registration of transfer of any Note at an
office or agency of the Company designated pursuant to Section 10.02 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of any authorized denominations, of a like aggregate principal amount
and bearing such restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other
provisions of this Section 3.06, Notes may be exchanged for other Notes of any
authorized denominations, of a like aggregate principal amount, upon surrender
of the Notes to be exchanged at any such office or agency. Whenever any Notes
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Notes which the Holder making the exchange
is entitled to receive.
All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company, evidencing the same
debt, and (except for the differences between Original Notes and Exchange Notes
provided for herein) entitled to the same benefits under this Indenture, as the
Notes surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of
transfer or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Note
Registrar duly executed, by the Holder thereof or his attorney duly authorized
in writing.
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No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 3.03, 3.04, 3.05, 3.06, 9.06, 10.17, 10.18 or
11.08 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Note during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Notes selected for redemption under Section 11.04 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(b) CERTAIN TRANSFERS AND EXCHANGES. Notwithstanding any other
provision of this Indenture or the Notes a beneficial interest in a Global Note
may be exchanged for a Note that is not a Global Note as provided in Section
3.05, PROVIDED that, if such interest is a beneficial interest in the Restricted
Global Note, then such interest shall be exchanged for a Restricted Note
(subject in to Section 3.06(c)).
(c) SECURITIES ACT LEGENDS. Rule 144A Notes and their
Successor Notes shall bear a Restricted Securities Legend, subject to the
following:
(i) subject to the following Clauses of this Section
3.06(c), a Note or any portion thereof which is exchanged, upon
transfer or otherwise, for a Global Note or any portion thereof shall
bear the Securities Act Legend borne by such Global Note while
represented thereby;
(ii) subject to the following Clauses of this Section
3.06(c), a new Note which is not a Global Note and is issued in
exchange for another Note (including a Global Note) or any portion
thereof, upon transfer or otherwise, shall bear the Securities Act
Legend borne by such other Note, provided that, if such new Note is
required pursuant to Section 3.06(b) to be issued in the form of a
Restricted Note, it shall bear a Restricted Securities Legend;
(iii) Registered Notes shall not bear a Securities Act
Legend;
(iv) at any time after the Notes may be freely transferred
without registration under the Securities Act or without being subject
to transfer restrictions pursuant to the Securities Act, a new Note
which does not bear a Securities Act Legend may be issued in exchange
for or in lieu of a Note (other than a Global Note) or any portion
thereof which bears such a legend if the Trustee has received an
Unrestricted Notes Certificate, satisfactory to the Trustee and duly
executed by the Holder of such legended Note or his attorney duly
authorized in writing, and after such date and receipt of such
certificate, the Trustee shall authenticate and deliver such a new Note
in exchange for or in lieu of such other Note as provided in this
Article Three;
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(v) a new Note which does not bear a Securities Act Legend
may be issued in exchange for or in lieu of a Note (other than a Global
Note) or any portion thereof which bears such a legend if, in the
Company"s judgment, placing such a legend upon such new Note is not
necessary to ensure compliance with the registration requirements of
the Securities Act, and the Trustee, at the direction of the Company,
shall authenticate and deliver such a new Note as provided in this
Article Three; and
(vi) notwithstanding the foregoing provisions of this
Section 3.06(c), a Successor Note of a Note that does not bear a
particular form of Securities Act Legend shall not bear such form of
legend unless the Company has reasonable cause to believe that such
Successor Note is a "restricted Note" within the meaning of Rule 144,
in which case the Trustee, at the direction of the Company, shall
authenticate and deliver a new Note bearing a Restricted Securities
Legend in exchange for such Successor Note as provided in this Article
Three.
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 Note (including any transfers between or among Agent Members or
beneficial owners of interests in any Global Note) 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.
SECTION 3.7 MUTILATED, DESTROYED, LOST AND STOLEN NOTES.
If any mutilated Note is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Note and
(ii) such Note or indemnity as may be required by either of them to save each of
them and any agent of any of them harmless, then, in the absence of notice to
the Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Notes.
SECTION 3.8 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Note which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the Person
in whose name that Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Note which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Note and the date of the proposed payment, 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 Clause 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 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 and, in the name and at the expense of the Company,
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 of Notes at such Holder"s address as it appears
in the Note 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
Notes (or their respective Predecessor Notes) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
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(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 Notes may 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
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
SECTION 3.09 PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Note is registered as the owner of such
Note for the purpose of receiving payment of principal of (and premium, if any)
and (subject to Section 3.08) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION 3.10 CANCELLATION.
All Notes surrendered for payment, redemption, repurchase
pursuant to any Offer to Purchase, registration of transfer or exchange shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee and the Trustee
will certify as to such disposal to the reasonable satisfaction of the Company;
PROVIDED, HOWEVER, that the Trustee shall in no event be required to destroy any
Notes. The Trustee shall provide the Company a list of all Notes that have been
cancelled from time to time as requested by the Company.
SECTION 3.11 COMPUTATION OF INTEREST.
Interest on the Notes shall be computed on the basis of a
360-day year of twelve 30-day months; PROVIDED, HOWEVER, that any interest on
overdue principal of (and premium, if any) and interest on any Notes, shall be
computed on the basis of a 365-day or 366-day year, as the case may be, and the
number of days actually elapsed during the relevant period of default in the
payment of such overdue principal (and premium, if any) or interest.
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SECTION 3.12 CUSIP NUMBERS.
The Company in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 4.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Notes theretofore authenticated and delivered
(other than (i) Notes which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 3.07 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(B) all such Notes not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(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 for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Notes not
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theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers"
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 10.03 shall survive.
SECTION 4.02 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be
held in trust and applied by it, in accordance with the provisions of the Notes
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 5.01 EVENTS OF DEFAULT.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Note when
it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Note at its Maturity; or
(3) failure to perform or comply with the provisions of
Sections 8.01, 10.17 and 10.18; or
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(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than Section 10.21 or
a covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with) or the Notes, and
continuance of such default or breach for a period of 60 days after
there has been given, in the manner provided in Section 1.06, to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Notes a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default or defaults under the terms of any bond(s),
debenture(s), note(s) or other evidence(s) of, or obligations
constituting, Debt by the Company or any Restricted Subsidiary, or
under any mortgage(s), indenture(s), agreement(s) or instrument(s)
under which there may be issued or existing or by which there may be
secured or evidenced, any Debt of the Company or any Restricted
Subsidiary, in each case with a principal or similar amount then
outstanding, individually or in the aggregate, in excess of $15
million, whether such Debt now exists or is hereafter Incurred, which
default or defaults constitute a failure to pay any portion of the
principal or similar amount of such Debt when due and payable after the
expiration of any applicable grace period with respect thereto or will
have resulted in such Debt becoming or being declared due and payable
prior to the date on which it would otherwise have become due and
payable; or
(6) a final judgment or final judgments (not subject to
appeal) for the payment of money are entered against the Company or any
Restricted Subsidiary in an aggregate amount in excess of $15 million
(in excess of applicable insurance coverage) by a court or courts of
competent jurisdiction, which judgments remain unstayed, undischarged
or unbonded for a period of 60 days after the entry of such judgment or
judgments; or
(7) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Restricted Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Restricted
Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Restricted Subsidiary or
of any substantial part of the property of the Company or any
Restricted Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company or any Restricted Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days;
(8) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by the Company or any
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Restricted Subsidiary to the entry of a decree or order for relief in
respect of the Company or any Restricted Subsidiary in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against the Company
or any Restricted Subsidiary or the filing by the Company or any
Restricted Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by the Company or any Restricted Subsidiary to the filing
of such a petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or any Restricted Subsidiary or of any
substantial part of the property of the Company or any Restricted
Subsidiary, or the making by the Company or any Restricted Subsidiary
of an assignment for the benefit of creditors, or the admission by the
Company or any Restricted Subsidiary in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or any Restricted Subsidiary in furtherance of
any such action;
(9) except as permitted by this Indenture, any Note Guarantee
after it is provided shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be in full
force and effect or any Guarantor, or any Person acting on behalf of
any Guarantor, shall deny or disaffirm its obligations under its Note
Guarantee.
SECTION 5.02 ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default (other than an Event of Default
specified in Section 5.01(7) or (8)) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Notes may declare the principal of all the Notes to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal and any
accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 5.01(7) or (8) occurs and is continuing, the
principal of and any accrued interest on the Notes then Outstanding shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
In addition, if an Event of Default occurs by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company had then elected to redeem the Notes pursuant to
the provisions of Section 11.01 hereof at the next earliest possible date, a
premium equal to the premium that otherwise would have been applicable pursuant
to Section 11.01 at such time (or if such Event of Default occurs prior to
August 15, 2002, a premium equal to the premium that would be payable had the
Company elected to redeem the Notes during the 12-month period beginning on
August 15, 2002) shall become and be immediately due and payable upon the Notes
becoming immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the
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Outstanding Notes, by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Notes,
(B) the principal of (and premium, if any, on) any
Notes which have become due otherwise than by such declaration
of acceleration (including any Notes required to have been
purchased on the Purchase Date pursuant to an Offer to
Purchase made by the Company) and any interest thereon at the
rate borne by the Notes,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Notes, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of Notes which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any Note
when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note at the Maturity thereof or, with respect
to any Note required to have been purchased pursuant to an Offer to
Purchase made by the Company, at the Purchase Date thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal (and premium, if any) and interest, and, to the extent that payment of
such interest shall be legally enforceable, interest on any principal (and
premium, if any) and interest that is overdue, at the rate provided therefor in
the Notes, and, in addition thereto, such further amount as shall be sufficient
to cover the costs
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and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company or
any other obligor upon the Notes or the property of the Company or its
creditors, the Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions, including participation as
a member, voting or otherwise, of any committee of creditors, authorized under
the Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or deliverable on
any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 6.07.
Notwithstanding the foregoing, no provision of this Indenture
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Notes or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding; PROVIDED, HOWEVER, that the Trustee may, on
behalf of such Holders, vote for the election of a trustee in bankruptcy or
similar official and be a member of a creditors" or other such committee.
SECTION 5.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
NOTES.
All rights of action and claims under this Indenture or the
Notes may be prosecuted and enforced by the Trustee without the possession of
any of the Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
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SECTION 5.06 APPLICATION OF MONEY COLLECTED.
Subject to Article 13 and applicable law, any money collected
by the Trustee pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee upon prior written notice to the
Company and, in case of the distribution of such money on account of principal
(or premium, if any) or interest, upon presentation of the Notes and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Notes in respect
of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Notes for principal (and premium, if
any) and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 5.07 LIMITATION ON SUITS.
No Holder of any Note shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
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SECTION 5.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, but
subject to Article Thirteen hereof, the Holder of any Note shall have the right,
which is absolute and unconditional, to receive payment of the principal of (and
premium, if any) and (subject to Section 3.08) any interest on such Note on the
respective Stated Maturities expressed in such Note (or, in the case of
redemption or repurchase, on the Redemption Date or the Purchase Date, as the
case may be) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 5.09 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph
of Section 3.07, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Note to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as
the case may be.
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SECTION 5.12 CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Notes shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than two-thirds in aggregate principal
amount of the Outstanding Notes may on behalf of the Holders of all the Notes
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note (including any Note which is required to have been
purchased pursuant to an Offer to Purchase made by the Company), or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14 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,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; PROVIDED, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company,
the Trustee or any Holder, or group of Holders, holding in the aggregate at
least 10% in principal amount of the Outstanding Notes or in any suit instituted
by any Holder for the enforcement of principal of (and premium, if any) or
interest on any Note on or after the respective Stated Maturities expressed in
such Note (or, in the case of redemption, on or after the Redemption Date or, in
the case of any purchase required to be made pursuant to an Offer to Purchase,
on or after the Purchase Date).
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SECTION 5.15 WAIVER OF STAY, USURY OR EXTENSION LAWS.
The Company and each of the Guarantors covenants (to the
extent that they may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, usury or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture;
and the Company and each of the Guarantors (to the extent that they may lawfully
do so) 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 SIX
The Trustee
SECTION 6.01 CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, 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 thereunder, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not herein or therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.02 NOTICE OF DEFAULTS.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; PROVIDED,
HOWEVER, that in the case of any default of the character specified in Section
5.01(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default.
SECTION 6.03 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers"
Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have notice or
knowledge of any matter unless an officer of the Trustee regularly
employed in its Corporate Trust Office has actual knowledge thereof or
unless written notice thereof is received by, or provided pursuant to
the provisions of Section 1.05 to, the Trustee at its Corporate Trust
Office and such notice refers to the Notes generally, the Company or
this Indenture.
SECTION 6.04 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES.
The recitals contained herein and in the Notes, except the
Trustee"s certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or the Notes except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its
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obligations hereunder. The Trustee shall not be accountable for the use or
application by the Company of Notes or the proceeds thereof.
SECTION 6.05 MAY HOLD NOTES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Note Registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 6.08 and 6.13, may otherwise deal with the Company and any
other obligor upon the Notes with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Note Registrar or such other agent.
SECTION 6.06 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 6.07 COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee or any predecessor Trustees and
their agents for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses, of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall have a lien prior to the Notes as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.07, except with respect to funds
held in trust for the benefit of the Holders of particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01, the expenses
(including the reasonable charges and expenses
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of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 6.08 DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such,
has a combined capital and surplus of at least $50 million and has its Corporate
Trust Office located in the Borough of Manhattan, The City of New York. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of its supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and the Company.
(d) If at any time:
(l) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Note for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Note for at least six months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.11 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
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No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes 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 Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
SECTION 6.13 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company or any other obligor upon the Notes, the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company or any such other obligor.
SECTION 6.14 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon original issue and upon exchange, registration of transfer, partial
redemption or partial purchase or pursuant to Section 3.07, and Notes so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if such Notes had been authenticated by
the Trustee hereunder. Wherever reference is made in this Indenture to-the
authentication and delivery of Notes by the Trustee or the Trustee"s certificate
of authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50 million and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
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Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment first-class postage prepaid, to each Holder of Notes at such
Holder"s address as it appears in the Note Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.07.
If an appointment is made pursuant to this Section, the Notes
may have endorsed thereon, in addition to the Trustee"s certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Notes described in the within-mentioned
Indenture.
----------------------------------,
As Trustee
Dated: By________________________________,
As Authenticating Agent
By________________________________,
Authorized Officer
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SECTION 6.15 TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE COMPANY.
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
Holders" Lists and Reports by Trustee, Company and Guarantors
SECTION 7.01 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Note Registrar.
SECTION 7.02 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 7.01 and the names
and addresses of Holders received by the Trustee in its capacity as Note
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
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(c) Every Holder of Notes, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of any of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 7.03 REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto. The Trustee shall promptly deliver to the Company a copy of
any reports it delivers to Holders pursuant to Section 7.03.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Notes are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Notes are listed on any stock exchange.
SECTION 7.04 REPORTS BY THE COMPANY AND GUARANTORS.
The Company and the Guarantors shall file with the Trustee and
the Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's and the
Guarantors' compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
Merger, Consolidation, Etc.
SECTION 8.1 MERGERS, CONSOLIDATIONS AND CERTAIN TRANSFERS, LEASES AND
ACQUISITIONS OF ASSETS.
The Company (a) shall not, and shall not permit any Restricted
Subsidiary to, consolidate with or merge into any Person, provided that this
Clause (a) shall not prohibit any such consolidation or merger by a Restricted
Subsidiary if (i) such Restricted Subsidiary ceases to be a Restricted
Subsidiary in such consolidation or merger or (ii) such consolidation or merger
is with or into the Company or another Restricted Subsidiary; (b) shall not
permit any Person
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other than a Restricted Subsidiary to consolidate with or merge into (i) the
Company or (ii) any Restricted Subsidiary, provided that this Clause (b) shall
not prohibit any such consolidation or merger with or into a Restricted
Subsidiary if such Restricted Subsidiary ceases to be a Restricted Subsidiary in
such consolidation or merger; and (c) shall not, directly or indirectly, in one
transaction or a series of related transactions, transfer, convey, sell, lease
or otherwise dispose of all or substantially all of the properties and assets of
the Company and its Subsidiaries on a consolidated basis, unless, in any such
transaction (or series) contemplated by Clause (a), (b) or (c) above:
(1) immediately before and after giving effect to such
transaction (or series of related transactions) and treating any Debt
Incurred by the Company or a Subsidiary of the Company as a result of
such transaction (or series of related transactions) as having been
Incurred by the Company or such Subsidiary at the time of such
transaction (or series of related transactions), no Event of Default,
and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing;
(2) in case the Company shall consolidate with or merge into
another Person or shall directly or indirectly, in one or a series of
related transactions, transfer, convey, sell, lease or otherwise
dispose of all or substantially all of its properties and assets as an
entirety, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by transfer, conveyance,
sale, lease or other disposition all or substantially all of the
properties and assets of the Company and its Subsidiaries on a
consolidated basis (for purposes of this Article Eight, a "Successor
Company") shall be a corporation, partnership, limited liability
company or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District
of Columbia and shall expressly assume by an indenture supplemental
hereto executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Notes and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(3) either the Company or, if applicable, the Successor
Company, as the case may be, would, at the time of such transaction (or
series of related transactions) and after giving pro forma effect
thereto as if such transaction (or series of related transactions) had
occurred at the beginning of the most recently ended four full fiscal
quarter period for which annual or quarterly financial statements are
publicly available immediately preceding the date of such transaction
(or series of related transactions), have been permitted to Incur at
least $1.00 of additional Debt pursuant to the Consolidated EBITDA
Coverage Ratio test set forth in the first paragraph of Section 10.08;
(4) if, as a result of any such transaction (or series of
related transactions), property and assets of the Company would become
subject to a Lien which would not be permitted by Section 10.14, the
Company or, if applicable, the Successor Company, as the case may be,
will have taken such steps as necessary effectively to secure the Notes
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equally and ratably with (or prior to, as provided in Section 10.14)
Debt secured by such Lien; and
(5) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
transaction (or series of related transactions) and, if a supplemental
indenture is required in connection with such transaction (or series of
related transactions), such supplemental indenture complies with this
Article and that all conditions precedent herein provided for relating
to such transaction (or series of related transactions) have been
complied with, and, with respect to such Officers" Certificate, setting
forth in reasonable detail the calculations referred to in Clause (3),
if applicable, above.
SECTION 8.02 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiaries on a consolidated basis, in each case in accordance
with Section 8.01, the Successor Company shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such Successor Company had been named as the Company
herein, and thereafter, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Notes.
ARTICLE NINE
Supplemental Indentures
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution of the Company, the Guarantors and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Notes; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Notes pursuant to the requirements of
Section 10.14 or otherwise; or
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(4) to comply with any requirements of the Commission in order
to effect qualification of this Indenture under the Trust Indenture Act
in connection with the issuance of the Exchange Notes and thereafter
maintain the qualification of this Indenture under the Trust Indenture
Act; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, PROVIDED that such action
pursuant to this Clause (5) shall not adversely affect the interests of
the Holders in any material respect;
(6) to provide for the issuance of Additional Notes in
accordance with the limitations set forth in this Indenture as of the
date hereof; or
(7) to allow any Subsidiary to execute a supplemental
indenture to provide a Note Guarantee; or
(8) to add to, change or eliminate any of the provisions of
this Indenture to permit or facilitate the issuance of Global Notes and
matters related thereto, PROVIDED that such action pursuant to this
Clause (8) shall not adversely affect the interests of the Holders in
any material respect.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of at least two-thirds in
aggregate principal amount of the Outstanding Notes, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution of the Company, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal thereof
or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the coin
or currency in which, the principal of (or premium, if any) or interest
on any Note is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in
the case of an Offer to Purchase which has been made, on or after the
applicable Purchase Date), or
(2) reduce the percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of
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this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.22 except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Note
affected thereby, or
(4) modify any of the provisions of Article Thirteen of this
Indenture in a manner adverse to the Holders, or
(5) modify Sections 10.17 and 10.18 of this Indenture in a
manner adverse to the Holders in any material respect,
(6) release any Guarantor from its obligations under its Note
Guarantee or this Indenture, except in accordance with the terms of
this Indenture, or
(7) following the mailing to a Holder of an Offer Document
with respect to an Offer to Purchase, modify the provisions of this
Indenture with respect to such Offer to Purchase in a manner adverse to
such Holder in any material respect.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee"s own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.04 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
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SECTION 9.05 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 9.06 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES.
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 9.07 CHANGES ADVERSE TO HOLDERS OF SENIOR DEBT.
No amendment, waiver or modification of any subordination
provision adverse to the holders of Senior Debt will be effective against any
holder of Senior Debt unless expressly consented to in writing by or on behalf
of such holder (or by any specified percentage of holders of a class of Senior
Debt required to consent thereto) pursuant to the terms of the agreement or
instrument creating, evidencing or governing such Senior Debt.
ARTICLE TEN
Covenants
SECTION 10.01 PAYMENT OF PRINCIPALS, PREMIUM AND INTEREST.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Notes in accordance with the terms of the
Notes and this Indenture.
SECTION 10.02 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Borough of Manhattan, The
City of New York, an office or agency where Notes may be presented or
surrendered for payment, where Notes may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Notes may
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be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan, The City of New York, for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 10.03 MONEY FOR NOTE PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any Notes, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent (or, until such time as this
Indenture shall be qualified under the Trust Indenture Act, which would be
applicable to it as Paying Agent if the Indenture were so qualified) and (ii)
during the continuance of any default by the Company (or any other obligor upon
the Notes) in the making of any payment in respect of the Notes, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Subject to any applicable abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on
any Note and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look
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only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of New York, 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 publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
SECTION 10.04 EXISTENCE.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, HOWEVER,
that the Company shall not be required to preserve any such right or franchise
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
that the loss thereof is not disadvantageous in any material respect to the
Holders.
SECTION 10.05 MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Restricted Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company 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 shall prevent the Company or any
Restricted Subsidiary from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Company,
desirable in the conduct of its business or the business of any Restricted
Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 10.06 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Company or
any of its 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 or would not result in
a material adverse effect on the Company.
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SECTION 10.07 MAINTENANCE OF INSURANCE.
The Company shall, and the Company shall cause its Restricted
Subsidiaries to, keep at all times all of their properties which are of an
insurable nature insured against loss or damage, and to maintain liability
insurance, with insurers believed by the Company to be responsible or in the
case of any insurance coverage, to self-insure, in each case to the extent, in
the judgment of the Company, to do so comports with good business practice.
SECTION 10.08 LIMITATION ON CONSOLIDATED DEBT.
The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur any Debt unless, immediately after giving effect to the
Incurrence of such Debt and the receipt and application of the proceeds thereof,
the Consolidated EBITDA Coverage Ratio of the Company and its Restricted
Subsidiaries for the four full fiscal quarters next preceding the Incurrence of
such Debt for which financial information is available, calculated on a pro
forma basis as if such Debt had been Incurred and the proceeds thereof had been
received and so applied at the beginning of the four full fiscal quarters, would
be greater than (x) 1.9 to 1 for Debt Incurred on or prior to November 9, 1999
and (y) 2.0 to 1.0 for Debt Incurred thereafter.
Without regard to the foregoing limitations, the following
Debt may be Incurred:
(i) Debt Incurred by the Company or any Restricted
Subsidiary under the Credit Facility in an aggregate principal amount
at any time outstanding not to exceed $200 million, less (A) $20
million at each of the third, fourth and fifth anniversaries of the
Credit Facility's effective date, plus (B) increased revolving credit
commitments thereunder in an aggregate amount not exceeding in the
aggregate the amount of Debt that is permitted to be Incurred, but has
not been Incurred, under Clauses (iv) and (viii) below, and plus (C)
the amount of Debt Incurred under the Credit Facility on a term loan
basis that is Incurred pursuant to the immediately preceding paragraph,
and, with respect to all of the foregoing, any renewal, extension,
refinancing or refunding (a "refinancing") of such Debt in an amount
that does not exceed the sum of the amount of the revolving credit
commitments and the amount of the outstanding term Debt under the
Credit Facility immediately prior to such renewal, extension,
refinancing or refunding; provided that no Debt Incurred on a term loan
basis may be refinanced on a revolving credit basis;
(ii) the original issuance by the Company of the Debt
evidenced by the Notes (including any Exchange Notes) and the issuance
by the Company's Subsidiaries of the Note Guarantee;
(iii) Debt (other than Debt described in another clause
of this paragraph) of the Company outstanding on the date of the
Indenture after giving effect to the application of the proceeds of the
Notes;
(iv) Debt in respect of Capital Lease Obligations,
mortgage financings or other purchase money obligations, in an
aggregate principal amount at any time outstanding not to exceed $15
million (including Debt refinanced pursuant to Clause (vii) of this
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paragraph and without duplication at such time of any portion of any
revolving credit commitment then in effect that represents an increase
made under the immediately preceding Clause (i)(B) in reliance on this
Clause (iv)), Incurred by the Company or any Restricted Subsidiary for
the purpose of financing all or any part of the acquisition or
improvement of any property used in the business of the Company or such
Restricted Subsidiary;
(v) Debt owed by the Company to any Wholly Owned
Restricted Subsidiary or Debt owed by any Restricted Subsidiary to the
Company or a Wholly Owned Restricted Subsidiary; PROVIDED, HOWEVER,
that (a) any such Debt (not pledged as security for any Senior Debt)
owing by the Company to a Wholly Owned Restricted Subsidiary shall be
Subordinated Debt evidenced by an intercompany promissory note and (b)
upon either (1) the transfer or other disposition (excluding any pledge
thereof as security for any Senior Debt) by such Wholly Owned
Restricted Subsidiary or the Company of any Debt so permitted to a
Person other than the Company or another Wholly Owned Restricted
Subsidiary or (2) the issuance (other than director' qualifying
shares), sale, lease, transfer or other disposition (including by
consolidation or merger) of shares of Capital Stock (other than any
pledge thereof as security for any Senior Debt) of such Wholly Owned
Restricted Subsidiary to a Person other than the Company or another
such Wholly Owned Restricted Subsidiary, the provisions of this Clause
(v) shall no longer be applicable to such Debt and such Debt shall be
deemed to have been Incurred at the time of such issuance, sale, lease,
transfer or other disposition, as the case may be;
(vi) Debt Incurred by the Company or any Restricted
Subsidiary consisting of Permitted Interest Rate, Currency or Commodity
Price Agreements;
(vii) Debt which is exchanged for or the proceeds of
which are used to refinance or refund, or any extension or renewal of,
outstanding Debt Incurred pursuant to the preceding paragraph of this
Section 10.08 or Clauses (ii), (iii) or (iv) above (each of the
foregoing, a "refinancing") in an aggregate principal amount not to
exceed the principal amount of the Debt so refinanced, plus the amount
of any premium required to be paid in connection with such refinancing
pursuant to the terms of the Debt so refinanced or the amount of any
premium reasonably determined by the Company as necessary to accomplish
such refinancing by means of a tender offer or privately negotiated
repurchase and plus the expenses of the Company or the Restricted
Subsidiary, as the case may be, Incurred in connection with such
refinancing; PROVIDED, HOWEVER, that (a) Debt the proceeds of which are
used to refinance the Notes or Debt that is pari passu with or
subordinate in right of payment to the Notes shall only be permitted if
(1) in the case of any refinancing of the Notes or Debt that is PARI
PASSU with the Notes, the refinancing Debt is Incurred by the Company
and made PARI PASSU with the Notes or subordinated in right of payment
to the Notes, and (2) in the case of any refinancing of Debt that is
subordinate in right of payment to the Notes, the refinancing Debt is
Incurred by the Company and constitutes Subordinated Debt; (b) the
refinancing Debt by its terms, or by the terms of any agreement or
instrument pursuant to which such Debt is issued, (1) does not provide
for payments of principal of such Debt at the Stated Maturity thereof
or by way of a sinking fund applicable thereto or by way of any
mandatory redemption,
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defeasance, retirement or repurchase thereof (including any redemption,
defeasance, retirement or repurchase which is contingent upon events or
circumstances, but excluding any retirement required by virtue of
acceleration of such Debt upon any event of default thereunder), in
each case prior to the final Stated Maturity of the Debt being
refinanced and (2) except as provided for by the terms of the Debt
being refinanced, does not permit redemption or other retirement
(including pursuant to an offer to purchase) of such Debt at the option
of the holder thereof prior to the final Stated Maturity of the Debt
being refinanced other than a redemption or other retirement at the
option of the holder of such Debt (including pursuant to an offer to
purchase) which is conditioned upon provisions substantially similar to
those described in Sections 10.17 and 10.18; and (c) in the case of any
refinancing of Debt Incurred by the Company, the refinancing Debt may
be Incurred only by the Company and, in the case of refinancing of Debt
Incurred by a Restricted Subsidiary, the refinancing Debt may be
Incurred only by the Company or such Restricted Subsidiary; PROVIDED,
FURTHER, that Debt Incurred pursuant to this Clause (vii) may not be
Incurred more than 90 days prior to the application of the proceeds to
repay the Debt to be refinanced; and
(viii) Debt not otherwise permitted to be Incurred by the
Company or any Restricted Subsidiary pursuant to Clauses (i) through
(vii) above, which, together with any other outstanding Debt Incurred
pursuant to this Clause (viii), has an aggregate principal amount at
any time outstanding not in excess of $15,000,000 (without duplication
at such time of any portion of any revolving credit commitment then in
effect that represents an increase made under the immediately preceding
Clause (i)(B) in reliance on this Clause (viii)).
SECTION 10.09 LIMITATION ON DEBT AND PREFERRED STOCK OF SUBSIDIARIES.
The Company shall not cause, and shall not permit, any
Restricted Subsidiary to Incur any Debt or issue any Preferred Stock except: (i)
Debt Incurred by any Restricted Subsidiary that is expressly permitted in the
second paragraph of Section 10.08; (ii) Debt or Preferred Stock outstanding on
the date of the Indenture after giving effect to the application of the proceeds
of the Notes; (iii) Debt or Preferred Stock issued to and held by the Company or
a Wholly Owned Restricted Subsidiary (provided that such Debt or Preferred Stock
is at all times held by the Company or a Wholly Owned Restricted Subsidiary); or
(iv) Debt or Preferred Stock Incurred or issued by a Person prior to the time
(A) such Person became a Restricted Subsidiary, (B) such Person merges into or
consolidates with a Restricted Subsidiary or (C) another Restricted Subsidiary
merges into or consolidates with such Person (in a transaction in which such
Person becomes a Restricted Subsidiary), which Debt or Preferred Stock was not
Incurred or issued in anticipation of such transaction and was outstanding prior
to such transaction or (v) any Guarantee incurred by any Guarantor; PROVIDED, in
the case of this clause (v), that if the obligation Guaranteed is (x)
subordinated to the Notes, then such Guarantee shall be subordinated to the Note
Guarantee to substantially the same extent or (y) PARI PASSU with the Notes,
then such Guarantee shall be PARI PASSU with the Note Guarantee to substantially
the same extent.
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SECTION 10.10 LIMITATION ON LAYERED DEBT.
The Company shall not Incur any Debt which by its terms is
both (i) subordinated in right of payment to any Senior Debt and (ii) senior in
right of payment to the Notes. The Guarantors shall not Incur any Debt which by
its terms is both (i) subordinated in right of payment to any Senior Debt and
(ii) senior in right of payment to the Note Guarantee.
SECTION 10.11 LIMITATION ON ISSUANCE OF GUARANTEES OF SUBORDINATED DEBT.
The Company shall not permit any Restricted Subsidiary,
directly or indirectly, to assume, guarantee or in any other manner become
liable with respect to any Debt of the Company that by its terms is PARI PASSU
with or junior in right of payment to the Notes except that if such Restricted
Subsidiary has issued a Note Guarantee it may Guarantee any such Debt provided
that if the obligation Guaranteed is (x) subordinated to the Notes, then such
Guarantee shall be subordinated to the Note Guarantee to substantially the same
extent or (y) PARI PASSU with the Notes, then such Guarantee shall be PARI PASSU
with the Note Guarantee to substantially the same extent.
SECTION 10.12 LIMITATION ON RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, (i) declare or pay any dividend, or make
any distribution, of any kind or character (whether in cash, property or
securities) in respect of the Capital Stock of the Company or any Restricted
Subsidiary or to the holders thereof in their capacity as such (excluding (u)
any dividends or distributions to the extent payable in shares of the Capital
Stock of the Company (other than Redeemable Interests) or in options, warrants
or other rights to acquire the Capital Stock of the Company (other than
Redeemable Interests), (v) dividends or distributions by a Restricted Subsidiary
to the Company or another Restricted Subsidiary and (w) the payment of pro rata
dividends by a Restricted Subsidiary to holders of both minority and majority
interests in such Restricted Subsidiary); (ii) other than pursuant to the
Special Redemption, purchase, redeem or otherwise acquire or retire for value
(a) any Capital Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the Company or
(b) any options, warrants or other rights to purchase or acquire shares of
Capital Stock of the Company or any Capital Stock of or other ownership
interests in any Subsidiary or any Affiliate or Related Person of the Company
(excluding, in each case of (a) and (b), the purchase, redemption or other
acquisition or retirement by any Restricted Subsidiary of any of its Capital
Stock, other ownership interests or options, warrants or rights to purchase such
Capital Stock or other ownership interests (x) owned by the Company or any
Restricted Subsidiary, (y) owned by any other Person if effected on a pro rata
basis with respect to holders of both minority and majority interests in such
Restricted Subsidiary or (z) owned by any officer, director or employee of the
Company, but solely for the purpose of enabling such Person (or the Company on
his or her behalf) to satisfy tax obligations in respect of his or her exercise
of options, warrants or rights to purchase Capital Stock of the Company); (iii)
make, directly or indirectly, any Investment that is not a Permitted Investment;
(iv) redeem, defease (whether legal, covenant or other defeasance), repurchase,
retire or otherwise acquire or retire for value, prior to any
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scheduled maturity, repayment or sinking fund payment, Debt of the Company that
is subordinate in right of payment to the Notes; or (v) make any Excess Deposit
(as defined in Section 10.14) (each of the transactions described in Clauses (i)
through (v) being referred to herein as a "Restricted Payment"), if at the time
thereof:
(1) an Event of Default, or an event that with the lapse of
time or the giving of notice, or both, would constitute an Event of
Default, shall have occurred and be continuing,
(2) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the Company"s most recently ended
four full fiscal quarter period for which annual or quarterly financial
statements are publicly available immediately preceding the date of
such Restricted Payment, not have been permitted to Incur at least
$1.00 of additional Debt pursuant to the Consolidated EBITDA Coverage
Ratio test set forth in the first paragraph of Section 10.08, or
(3) upon giving effect to such Restricted Payment, the
aggregate of all Restricted Payments (excluding Restricted Payments
permitted by Clauses (ii), (iii) and (iv) of the next succeeding
paragraph) from the date of this Indenture (the amount so expended, if
other than in cash, determined in good faith by the Board of Directors)
exceeds the sum, without duplication, of:
(a) 50% of the Consolidated Net Income (or, in case
Consolidated Net Income shall be negative, less 100% of such
deficit) of the Company for the period (taken as one
accounting period) from June 30, 1997 through the end of the
Company"s most recently ended fiscal quarter for which annual
or quarterly financial statements are publicly available at
the time of such Restricted Payment;
(b) 100% of the aggregate net cash proceeds from the
issuance and sale (other than to a Restricted Subsidiary) of
Capital Stock (other than Redeemable Interests) of the Company
and options, warrants or other rights to acquire Capital Stock
(other than Redeemable Interests and Debt convertible into
Capital Stock) of the Company and the principal amount of Debt
and Redeemable Interests of the Company that has been
converted into or exchanged for Capital Stock (other than
Redeemable Interests) of the Company after June 30, 1997;
PROVIDED that any such net proceeds received by the Company
from an employee stock ownership plan financed by loans from
the Company or a Subsidiary of the Company shall be included
only to the extent such loans have been repaid with cash on or
prior to the date of determination;
(c) the amount by which the total consideration paid
by the Company in the Tender Offer is less than $110 million;
and
(d) $5 million.
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The foregoing provisions of this Section 10.12 shall not be violated by reason
of:
(i) the payment of any dividend within 60 days after
declaration thereof if at the declaration date such payment would have
complied with the foregoing provisions;
(ii) any payment made by the Company in connection
with the consummation of the Transactions;
(iii) any refinancing or refunding of Debt permitted
pursuant to Clause (i) or Clause (vii) of the second paragraph of
Section 10.08; and
(iv) the purchase, redemption or other acquisition or
retirement for value of any Capital Stock of the Company or any
options, warrants or rights to purchase or acquire shares of Capital
Stock of the Company in exchange for, or out of the net cash proceeds
of, the substantially concurrent issuance or sale (other than to a
Restricted Subsidiary) of Capital Stock (other than Redeemable
Interests) of the Company; PROVIDED that the amount of any such net
cash proceeds that are utilized for any such purchase, redemption or
other acquisition or retirement for value shall be excluded from Clause
(3)(b) in the foregoing paragraph.
Upon the designation of any Restricted Subsidiary as an
Unrestricted Subsidiary, an amount equal to the greater of the book value and
the fair market value of all assets of such Restricted Subsidiary at the end of
the Company"s most recently ended fiscal quarter for which annual or quarterly
financial statements are publicly available prior to such designation will be
deemed to be a Restricted Payment at the time of such designation for purposes
of calculating the aggregate amount of Restricted Payments (including the
Restricted Payment resulting from such designation) permitted under the second
preceding paragraph.
SECTION 10.13 LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of any
Restricted Subsidiary: (i) to pay dividends (in cash or otherwise) or make any
other distributions in respect of its Capital Stock or other ownership interests
or pay any Debt or other obligation owed to the Company or any other Restricted
Subsidiary; (ii) to make loans or advances to the Company or any other
Restricted Subsidiary; or (iii) to sell, lease or transfer any of its property
or assets to the Company or any Restricted Subsidiary.
Notwithstanding the foregoing, the Company may, and may permit
any Restricted Subsidiary to, suffer to exist any such encumbrance or
restriction:
(a) pursuant to any agreement in effect on the date
of the Indenture (including the Credit Facility, the Indenture
and the Notes);
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(b) pursuant to an agreement relating to any Debt
Incurred by such Restricted Subsidiary prior to the date on
which such Restricted Subsidiary was acquired by the Company
and outstanding on such date and not Incurred in anticipation
of becoming a Restricted Subsidiary;
(c) pursuant to mortgages and other purchase money
obligations in connection with property acquired or improved
in the ordinary course of business or liens in connection
therewith permitted to be Incurred under Section 10.14 that
impose restrictions of the nature described in Clause (iii)
above on the property so acquired or improved;
(d) pursuant to an agreement effecting a renewal,
refunding, refinancing or extension of Debt Incurred pursuant
to an agreement referred to in Clause (a), (b) or (c) above,
PROVIDED, HOWEVER, that the provisions contained in such
renewal, refunding, refinancing or extension agreement
relating to such encumbrance or restriction are no more
restrictive in any material respect than the provisions
contained in the agreement the subject thereof (as determined
in good faith by the Board of Directors);
(e) pursuant to customary non-assignment provisions
entered into in the ordinary course of business consistent
with past practices in leases, licenses or contracts to the
extent such provisions restrict the transfer, subletting or
other disposition of any such lease, license or contract;
(f) pursuant to an agreement which has been entered
into for the sale or other disposition of all or substantially
all of the Capital Stock or assets of such Restricted
Subsidiary, PROVIDED that consummation of such transaction
would not result in an Event of Default or an event that, with
the passing of time or the giving of notice or both, would
constitute an Event of Default, that such restriction
terminates if such transaction is closed or abandoned and that
they closing or abandonment of such transaction occurs within
one year of the date such agreement was entered into; or
(g) arising under any applicable law, rule,
regulation or order.
SECTION 10.14 LIMITATION ON LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary to, Incur or suffer to exist any Lien on or with respect to any
property or assets now owned or hereafter acquired to secure any Debt of the
Company that is expressly by its terms subordinate or junior in right of payment
to any other Debt of the Company (other than related to any secured deposit of
funds for the repayment of the 10 3% Notes; provided that the excess of such
secured deposit over the principal amount of the 10 3% Notes to be repaid (an
"Excess Deposit") shall be subject to the provisions of Section 10.12) without
making, or causing such Restricted Subsidiary to make, effective provision for
securing the Notes (a) equally and ratably with such Debt as to such property or
assets for so long as such Debt will be so secured or (b) in the event such Debt
is
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subordinate in right of payment to the Notes, prior to such Debt as to such
property or assets for so long as such Debt will be secured.
SECTION 10.15 LIMITATION ON OWNERSHIP OF CAPITAL STOCK OF SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted
Subsidiary to, issue, transfer, convey, lease or otherwise dispose of any shares
of Capital Stock (other than directors' qualifying shares and shares pledged as
security for any Senior Debt) of a Restricted Subsidiary or securities
convertible or exchangeable into, or options, warrants, rights or any other
interest with respect to, Capital Stock of a Restricted Subsidiary to any Person
other than the Company or a Wholly Owned Restricted Subsidiary except in a
transaction consisting of a sale (including a public offering) of all or part of
the Capital Stock of such Restricted Subsidiary owned by the Company and any
Restricted Subsidiary and that complies with the provisions of Section 10.17 to
the extent such provisions apply; PROVIDED THAT after any sale of less than all
of the Capital Stock of any Restricted Subsidiary, the Company directly or
indirectly maintains voting power to elect a majority of the board of directors
of such Restricted Subsidiary.
SECTION 10.16 LIMITATION ON TRANSACTIONS WITH AFFILIATES AND RELATED
PERSONS.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company to, after the date of this Indenture, enter into any
transaction (or series of related transactions) (including the purchase, sale,
lease or exchange of property, the rendering of any service or the making of any
loan or advance) with any Affiliate or Related Person of the Company (other than
the Company or any Restricted Subsidiary), including any Investment, either
directly or indirectly, that involves total consideration or asset transfers in
excess of $1,000,000 (i) unless such transaction is on terms no less favorable
to the Company or such Restricted Subsidiary than those that could be obtained
in a comparable arm"s-length transaction with an entity that is not an Affiliate
or Related Person and is in the best interests of the Company or such Restricted
Subsidiary and (ii) except for the Transactions. For any transaction that
involves in excess of $1,000,000 but less than or equal to $5,000,000, the Chief
Executive Officer of the Company shall determine that the transaction satisfies
the above criteria and shall evidence such a determination by a certificate
filed with the Trustee. For any transaction that involves in excess of
$5,000,000, a majority of the disinterested members of the Board of Directors
shall determine that the transaction satisfies the above criteria and shall
evidence such a determination by a Board Resolution filed with the Trustee. For
any transaction that involves in excess of $10,000,000, the Company shall also
obtain an opinion from a nationally recognized expert with experience in
appraising the terms and conditions of the type of transaction (or series of
related transactions) for which the opinion is required stating that such
transaction (or series of related transactions) is on terms no less favorable to
the Company or such Restricted Subsidiary than those that could be obtained in a
comparable arm"s-length transaction with an entity that is not an Affiliate or
Related Person of the Company, which opinion shall be filed with the Trustee;
provided, HOWEVER, that the foregoing restrictions will not apply to: (a)
reasonable employment, compensation, bonus or benefit arrangements entered into
in the ordinary course of business (including the granting of stock acquisition
rights and other incentives other than Redeemable
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Interests); the payment of reasonable fees, expense reimbursements and customary
indemnification, advances and other similar arrangements with respect to
officers and directors; and reasonable loans and advances to employees in the
ordinary course of business; (b) required payments with respect to any Debt
permitted by Section 10.08; (c) transactions permitted by Section 10.12; (d) any
payments or other transactions pursuant to any tax sharing agreement with any
Person with which the Company or such Restricted Subsidiary is required or
permitted to file a consolidated tax return or with which the Company or such
Restricted Subsidiary is or could be part of a consolidated group for tax
purposes; and (e) any transaction with the Principals, their Related Parties or
any of their Affiliates to the extent that such transaction is or was approved
by a majority of the disinterested members of the Board of Directors in good
faith.
SECTION 10.17 LIMITATION ON CERTAIN ASSET DISPOSITIONS.
(a) The Company shall not make, and shall not permit any
Restricted Subsidiary to make, any Asset Disposition in one transaction (or
series of related transactions) unless:
(i) the Company (or such Restricted Subsidiary, as the
case may be) receives consideration at the time of such disposition at
least equal to the fair market value of the shares or other assets
disposed of (as determined in good faith by the Board of Directors of
the Company and evidenced by a Board Resolution) for any transaction
(or series of related transactions) involving in excess of $2 million;
(ii) at least 80% of the consideration received by the
Company (or such Restricted Subsidiary) for such disposition consists
of (u) cash, readily marketable cash equivalents, readily marketable
fixed-income securities or equity securities traded on a national
securities exchange or NASDAQ (valued, in the case of securities, at
the market value thereof when received by the Company or such
Restricted Subsidiary), (v) the assumption of Debt or other liabilities
reflected on the consolidated balance sheet of the Company and its
Restricted Subsidiaries in accordance with generally accepted
accounting principles (excluding Debt or any other liabilities
subordinate in right of payment to the Notes) and release of the
Company and its Restricted Subsidiaries from all liability in respect
of the Debt or other liabilities assumed, (w) assets used by, or stock
or other ownership interests in, a Person that upon the consummation of
such Asset Disposition becomes a Restricted Subsidiary and will be
principally engaged in the business of the Company or any of its Wholly
Owned Restricted Subsidiaries substantially as such business was
conducted immediately prior to such Asset Disposition (as determined by
the Board of Directors in good faith) or (x) any combination thereof;
and
(iii) 100% of the Net Available Proceeds from such Asset
Disposition (including from the sale of any marketable cash
equivalents, fixed-income or equity securities received therein), less
any Reinvested Amounts, are applied by the Company (or a Restricted
Subsidiary) within one year from the later of the date of such Asset
Disposition or the receipt of such Net Available Proceeds, (A) FIRST,
to repayment of Senior Debt of the Company or Debt of its Restricted
Subsidiaries then outstanding under any agreements or instruments which
would require such application or which would
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prohibit payments pursuant to Clause (B) following; (B) SECOND, to the
extent Net Available Proceeds are not required to be applied to Senior
Debt of the Company or Debt of Restricted Subsidiaries as specified in
Clause (A), to purchases of Outstanding Notes pursuant to an Offer to
Purchase at a purchase price equal to 100% of their principal amount,
plus accrued interest to the date of purchase (subject to the rights of
Holders of record on the relevant Regular Record Date to receive
interest due on an Interest Payment Date that is on or prior to the
Purchase Date), and, to the extent required by the terms thereof, to
purchases (on a pro rata basis with the Notes) of any other Debt of the
Company or its Restricted Subsidiaries that is PARI PASSU with the
Notes at a price no greater than 100% of the principal amount thereof,
plus accrued interest to the date of purchase, in each case to the
extent such purchases are not prohibited by the terms of any Senior
Debt of the Company or of any Debt of Restricted Subsidiaries then
outstanding; (C) THIRD, to the extent of any remaining Net Available
Proceeds following purchases pursuant to the foregoing Clause (b), to
the repayment of other Debt of the Company or Debt of a Restricted
Subsidiary, to the extent permitted under the terms thereof, and (D)
FOURTH, to the extent of any remaining Net Available Proceeds, to any
other use as determined by the Company which is not otherwise
prohibited by the Indenture.
Notwithstanding the foregoing, the Company shall not be
required to comply with the requirements of Clause (ii) or Clause (iii) of the
preceding paragraph for any Asset Disposition that is an Excepted Disposition,
and the Company shall not be required to comply with the requirements of Clause
(iii) of the preceding paragraph except at any time and from time to time that
the aggregate amount of Net Available Proceeds, less Reinvested Amounts,
required to be applied pursuant to Clause (iii) (and not theretofore so applied)
exceeds $10 million; PROVIDED, HOWEVER, with respect to such Clause (iii), that
if any Restricted Subsidiary in which a Reinvested Amount is invested becomes an
Unrestricted Subsidiary thereafter, such change in status, except as otherwise
provided in clause (b) of the proviso to the penultimate paragraph of Section
10.20, will be deemed an Asset Disposition with Net Available Proceeds of cash
in an amount equal to such Reinvested Amount (less any portion of such
Reinvested Amount theretofore distributed to the Company or any Restricted
Subsidiary), and such amount of cash will be applied pursuant to Clause (iii)
above (subject to this proviso).
(b) The Company shall mail by first class mail the Offer
Document for an Offer to Purchase required pursuant to Section 10.17(a) within
30 days after the date which is one year after the later of the date of
consummation of the Asset Disposition referred to in Section 10.17(a) or the
receipt of the Net Available Proceeds from such Asset Disposition. The aggregate
principal amount of the Notes to be offered to be purchased pursuant to the
Offer to Purchase shall equal the Net Available Proceeds required to be made
available therefor pursuant to Clause (iii)(B) of Section 10.17(a) (rounded down
to the next lowest integral multiple of $1,000). Each Holder shall be entitled
to tender all or any portion of the Notes owned by such Holder pursuant to the
Offer to Purchase, subject to the requirement that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal amount.
The Company shall not be entitled to any credit against its
obligations under this Section 10.17 for the principal amount of any Notes
acquired or redeemed by the Company otherwise than pursuant to the Offer to
Purchase pursuant to this Section 10.17.
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In the event the Company is required to make an Offer to
Purchase pursuant to this Section 10.17, and the amount available for such Offer
to Purchase is not evenly divisible by $1,000, the Trustee shall promptly refund
to the Company, any remaining funds, which in no event will exceed $1,000.
(c) Not later than the date of the Offer Document with respect
to an Offer to Purchase pursuant to this Section 10.17, the Company shall
deliver to the Trustee an Officers' Certificate as to (i) the Purchase Amount,
(ii) the allocation of the Net Available Proceeds from the Asset Disposition
pursuant to which such Offer to Purchase is being made, including, with respect
to Reinvested Amounts, the assets acquired and a statement that such assets will
be used in the same or substantially similar or related business of the Company
and any of its Wholly Owned Restricted Subsidiaries as conducted prior to such
Asset Disposition, and (iii) the compliance of such allocation with the
provisions of Section 10.17(a).
The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase. On or
prior to the Purchase Date, the Company shall (i) accept for payment (on a pro
rata basis, if necessary) Notes or portions thereof tendered pursuant to the
Offer to Purchase, (ii) deposit with the Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 10.03) money sufficient to pay the purchase price of all Notes or
portions thereof so accepted and (iii) deliver or cause to be delivered to the
Trustee all Notes so accepted together with an Officers' Certificate stating the
Notes or portions thereof accepted for payment by the Company. The Paying Agent
(or the Company, if so acting) shall promptly mail or deliver to Holders of
Notes so accepted payment in an amount equal to the Purchase Price for each
$1,000 principal amount of Notes so accepted, and the Company shall promptly
execute a new Note or Notes equal in principal amount to any unpurchased portion
of the Note surrendered, and thereafter the Trustee shall promptly authenticate
and mail or deliver to such Holders such new Note or Notes. Any Note not
accepted for payment shall be promptly mailed or delivered by the Company to the
Holder thereof. The Company shall publicly announce the results of the Offer to
Purchase on or as soon as practicable after the Purchase Date.
(d) Notwithstanding the foregoing, this Section 10.17 shall
not apply to any Asset Disposition which constitutes a transfer, conveyance,
sale, lease or other disposition of all or substantially all of the properties
and assets of the Company and its Restricted Subsidiaries subject to Section
8.01.
SECTION 10.18 CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, each Holder of
a Note shall have the right to have such Note repurchased by the Company on the
terms and conditions set forth in this Section 10.18 and this Indenture. The
Company shall, within 30 days following consummation of a transaction that
results in a Change of Control, mail an Offer Document with respect to an Offer
to Purchase all Outstanding Notes at a Purchase Price equal to 101% of their
aggregate principal amount as of the Purchase Date plus any accrued interest to
the Purchase Date (PROVIDED, HOWEVER, that installments of interest whose Stated
Maturity is on or prior to the Purchase Date shall be payable to the Holders of
such Notes, or one or more Predecessor Notes,
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registered as such at the close of business on the relevant Regular Record Dates
according to their terms and as set forth in Section 3.08). Each Holder shall be
entitled to tender all or any portion of the Notes owned by such Holder pursuant
to the Offer to Purchase, subject to the requirement that any portion of a Note
tendered must be tendered in an integral multiple of $1,000 principal amount.
(b) The Company and the Trustee shall perform their respective
obligations specified in the Offer Document for the Offer to Purchase. Prior to
the Purchase Date, the Company shall (i) accept for payment Notes or portions
thereof tendered pursuant to the Offer to Purchase, (ii) deposit with the Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.03) money sufficient to pay the Purchase
Price of all Notes or portions thereof so accepted and (iii) deliver or cause to
be delivered to the Trustee all Notes so accepted together with an Officers"
Certificate stating the Notes or portions thereof accepted for payment by the
Company. The Paying Agent (or the Company if so acting) shall promptly mail or
deliver to Holders of Notes so accepted payment in an amount equal to the
Purchase Price for each $1,000 of Notes so accepted, and the Company shall
promptly execute a new Note or Notes equal in principal amount to any
unpurchased portion of the Note surrendered as requested by the Holder, and
thereafter the Trustee shall promptly authenticate and mail or deliver to such
Holders such new Note or Notes. Any Note not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The Company
shall publicly announce the results of the Offer to Purchase on or as soon as
practicable after the Purchase Date.
(c) A "Change of Control" shall be deemed to have occurred in
the event that, after the date of this Indenture, the following occurs: (i) the
sale, lease, transfer, conveyance or other disposition (other than by way of
merger or consolidation), in one or a series of related transactions, of all or
substantially all of the assets of the Company and its Subsidiaries, taken as a
whole, to any "person" or "group" (as such terms are used in Section 13(d) of
the Exchange Act), other than the Principals and their Related Parties; (ii) the
adoption of a plan for the liquidation or dissolution of the Company; (iii) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is than any "person" or "group" (as such
terms are used in Section 13(d) of the Exchange Act), other than the Principals
and their Related Parties, becomes the "beneficial owner" (as such term is
defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act), directly or
indirectly through one or more intermediaries, of 50% or more of the voting
power of the outstanding voting stock of the Company; or (iv) the first day on
which a majority of the members of the Board of Directors are not Continuing
Directors.
SECTION 10.19 PROVISION OF FINANCIAL INFORMATION.
(a) So long as any of the Notes are Outstanding, and in
addition to and without limitation of the Company's obligations pursuant to
Section 7.04, whether or not the Company is required to be subject to Section
13(a) or 15(d) of the Exchange Act, or any successor provisions, the Company
(unless not permitted by the Commission to do so) shall file with the Commission
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to such Section
13(a) or 15(d) or any successor
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provisions thereto if the Company were so required such documents to be filed
with the Commission on or prior to the respective dates (the "Required Filing
Dates") by which the Company would have been required so to file such documents
if the Company were so required. The Company shall also in any event (a) within
15 days of each Required Filing Date (i) transmit by mail to all Holders, as
their names and addresses appear in the Note Register, without cost to such
Holders, and (ii) file with the Trustee, copies of the annual reports, quarterly
reports and other documents which the Company files with the Commission pursuant
to such Section 13(a) or 15(d) or any successor provisions thereto or would have
been required to file with the Commission pursuant to such Section 13(a) or
15(d) or any successor provisions thereto if the Company were required to comply
with such Sections or successor provisions and (b) if filing such documents by
the Company with the Commission is not permitted under the Exchange Act,
promptly upon written request supply copies of such documents to any prospective
holder of securities. Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Truste'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).
(b) If the Company at any time is not subject to the reporting
requirements of Section 13 or Section 15(d) of the Exchange Act (or any
successor provisions) while any Notes constitute Restricted Notes, it will
furnish to any holder of such a Note (or a beneficial interest therein), or to
any prospective purchaser designated by such holder, upon the request of such
holder, such financial and other information as may be required to satisfy the
requirements of Paragraph (d)(4) of Rule 144A to permit such resales and that
information that would be required if the Company were subject to the
informational requirements of Section 13 or 15(d) of the Exchange Act.
SECTION 10.20 UNRESTRICTED SUBSIDIARIES.
The Company at any time may designate any Person that is a
Subsidiary (other than a Guarantor), or after the date of this Indenture becomes
a Subsidiary, of the Company as an "Unrestricted Subsidiary", whereupon (and
until such Person ceases to be an Unrestricted Subsidiary) such Person and each
other Person that is then or thereafter becomes a Subsidiary of such Person
shall be deemed to be an Unrestricted Subsidiary for all purposes of this
Indenture. In addition, the Company may at any time terminate the status of any
Subsidiary as an Unrestricted Subsidiary, whereupon such Subsidiary and each
other Subsidiary of the Company (if any) of which such Subsidiary is a
Subsidiary shall be a Restricted Subsidiary for all purposes of this Indenture.
Each such designation or termination shall be evidenced by a Board Resolution
and shall be effective upon the later of (i) the date specified therein and (ii)
the delivery by the Company to the Trustee of such Board Resolution and an
Officer"s Certificate stating that the requirements of this Section 10.20 will
have been satisfied upon effectiveness of such designation or termination.
Notwithstanding the foregoing, no change in the status of a
Subsidiary of the Company from a Restricted Subsidiary to an Unrestricted
Subsidiary or from an Unrestricted
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Subsidiary to a Restricted Subsidiary shall be effective, and no Person may
otherwise become a Restricted Subsidiary, if:
(a) the Consolidated EBITDA Coverage Ratio of the Company and
its Restricted Subsidiaries for the four full fiscal quarters of the
Company next preceding the effective date of such purported change or
other event, calculated on a pro forma basis as if such change or other
event had been effective at the beginning of such period, would not
exceed (a) on or prior to November 9, 1999, 1.9 to 1.0 and (b)
thereafter, 2.0 to 1.0;
(b) in the case of any change in status of such a Subsidiary
from a Restricted Subsidiary to an Unrestricted Subsidiary, the
Restricted Payment resulting from such change would violate Clause (3)
of the first paragraph of Section 10.12, or
(c) such change or other event would otherwise result (after
the giving of notice or the lapse of time, or both) in an Event of
Default.
In addition and notwithstanding the foregoing, no Restricted
Subsidiary may become an Unrestricted Subsidiary, and the status of any
Unrestricted Subsidiary as an Unrestricted Subsidiary shall be deemed to have
been immediately terminated (whereupon such Subsidiary and each other Subsidiary
of the Company (if any) of which such Subsidiary is a Subsidiary will be a
Restricted Subsidiary) at any time when:
(i) such Subsidiary (A) has outstanding Debt that is
Unpermitted Debt or (B) owns or holds any Capital Stock of or other
ownership interests in, or a Lien on any property or other assets of,
the Company or any of its Restricted Subsidiaries; or
(ii) the Company or any other Restricted Subsidiary (A)
provides credit support for, or a Guarantee of, any Debt of such
Subsidiary (including any undertaking, agreement or instrument
evidencing such Debt) or (B) is directly or indirectly liable for any
Debt of such Subsidiary.
Any termination of the status of an Unrestricted Subsidiary as an Unrestricted
Subsidiary pursuant to the preceding sentence shall be deemed to result in a
breach of this Section 10.20 in any circumstance in which the Company would not
have been permitted to change the status of such Unrestricted Subsidiary to the
status of a Restricted Subsidiary pursuant to the provisions of the preceding
paragraph, PROVIDED, HOWEVER, that (a) so long as the aggregate principal amount
outstanding of Unpermitted Debt does not exceed $5 million, no such breach will
be deemed to have occurred with respect to any Unpermitted Debt until 15 days
after the Company has become aware of such Unpermitted Debt and such Unpermitted
Debt remains outstanding or Unpermitted Debt, and (b) notwithstanding Sections
10.12 and 10.17 of this Indenture, any change of status of an Unrestricted
Subsidiary to a Restricted Subsidiary as aforesaid followed within one year by a
change of status of such Restricted Subsidiary to an Unrestricted Subsidiary
will not be deemed an Asset Disposition or cause any Reinvested Amount invested
therein to be deemed Net Available Proceeds or the book value or fair market
value of the assets thereof to be deemed a Restricted Payment. "Unpermitted
Debt" means any Debt of a Subsidiary of the Company if (x) a default thereunder
(or under any instrument or agreement pursuant to or by which such Debt is
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issued, secured or evidenced), or any right that the holders thereof may have to
take enforcement action against such Subsidiary or its property or other assets,
would permit (whether or not after the giving of notice or the lapse of time or
both) the holders of any Debt of the Company or any other Restricted Subsidiary
to declare the same due and payable prior to the date on which it otherwise
would have become due and payable or otherwise to take any enforcement action
against the Company or such other Restricted Subsidiary or (y) such Debt is
secured by a Lien on any property or other assets of the Company and any of its
other Restricted Subsidiaries.
Each Person that is or becomes a Subsidiary of the Company
shall be deemed to be a Restricted Subsidiary for all purposes of this Indenture
at all times when it is a Subsidiary of the Company that is not an Unrestricted
Subsidiary. Each Person that is or becomes a Wholly Owned Subsidiary of the
Company shall be deemed to be a Wholly Owned Restricted Subsidiary at all times
when it is a Wholly Owned Subsidiary of the Company that is not an Unrestricted
Subsidiary.
SECTION 10.21 NOTE GUARANTEES.
(a) The Company shall use its reasonable best efforts to
obtain within 90 days after the date of this Indenture any necessary consent
from parties to the Credit Facility, holders of the 103% Notes and from any
party to any other agreement or instrument to which the Company or any
Subsidiary is a party to permit each Wholly-Owned Restricted Subsidiary of the
Company on the date of this Indenture that is a Domestic Subsidiary (other than
any Subsidiary which would be entitled to be released from its obligations under
the Note Guarantee pursuant to Section 14.06 of this Indenture) to become a
Guarantor and execute a supplemental indenture to this Indenture to provide the
Note Guarantee. If such consents are obtained or at any time that such
Subsidiaries are not prohibited by any agreement or instrument to which the
Company or any Subsidiary is a party from providing the Note Guarantee (whether
or not within such 90-day period), the Company promptly shall cause each such
Subsidiary to execute a supplemental indenture in accordance with Article 9 and
Article 14 of this Indenture providing the Note Guarantee and deliver an Opinion
of Counsel to the Trustee pursuant to paragraph (c) below
(b) If the Note Guarantee is issued as provided in paragraph
(a) above, the Company shall cause any Person that becomes a Wholly-Owned
Restricted Subsidiary of the Company after the date of this Indenture that is a
Domestic Subsidiary and that Guarantees any Debt under the Credit Facility, to
become a Guarantor by executing a supplemental indenture in accordance with
Article 9 and Article 14 of this Indenture providing for the Note Guarantee and
deliver an Opinion of Counsel to the Trustee pursuant to paragraph (c) below
(c) The Opinion of Counsel described above shall be to the
effect that such supplemental indenture has been duly authorized, executed and
delivered by such Subsidiary and constitutes a valid and binding obligation of
such Subsidiary, enforceable against such Subsidiary in accordance with its
terms (subject to customary exceptions).
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SECTION 10.22 STATEMENT BY OFFICERS AS TO DEFAULT; COMPLIANCE CERTIFICATES.
(a) The Company will deliver to the Trustee, within 90 days
after the end of each fiscal year of the Company ending after the date of this
Indenture, an Officers' Certificate, stating whether or not to the knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(b) The Company shall deliver to the Trustee, as soon as
possible and in any event within 30 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse of
time or both, would constitute an Event of Default, an Officers" Certificate
setting forth the details of such Event of Default or default, and the action
which the Company proposes to take with respect thereto.
SECTION 10.23 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Section 8.01 and Sections 10.04 through
10.22, inclusive, if before the time for such compliance the Holders of at least
two-thirds in principal amount of the Outstanding Notes shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect; PROVIDED, HOWEVER, with respect to an Offer to
Purchase as to which an Offer Document has been mailed, no such waiver may be
made or shall be effective against any Holder tendering Notes pursuant to such
Offer to Purchase, and the Company may not omit to comply with the terms of such
Offer Document as to such Holder, unless such Holder shall have waived such
requirement.
ARTICLE ELEVEN
Redemption of Notes
SECTION 11.01 REDEMPTION AT THE ELECTION OF THE COMPANY.
The Notes may be redeemed at the election of the Company, at
the times and the Redemption Prices and subject to the conditions and other
requirements specified in the form of Note hereinbefore set forth.
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SECTION 11.02 APPLICABILITY OF ARTICLE.
Redemption of Notes at the election of the Company, as
permitted or required by any provision of the Notes and this Indenture, or as
required pursuant to Section 11.09, shall be made in accordance with such
provision and the applicable provisions of this Article.
SECTION 11.03 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Notes pursuant to
Section 11.01 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company or as required pursuant to Section
11.09, of less than all the Notes, the Company shall, at least 60 days (or ten
days in the case of a redemption pursuant to Section 11.09) prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed.
SECTION 11.04 SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED.
If less than all the Notes are to be redeemed, the particular
Notes to be redeemed shall be selected not more than 60 days (or five days in
the case of a redemption pursuant to Section 11.09) prior to the Redemption Date
by the Trustee, from the Outstanding Notes not previously called for redemption,
by such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to $1,000 or any
integral multiple thereof) of the principal amount of Notes of a denomination
larger than $1,000.
The Trustee shall promptly notify the Company and each Note
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of such Notes which has been or is to be redeemed.
SECTION 11.05 NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days (or not less than
5 nor more than 10 days in the case of a redemption pursuant to Section 11.09)
prior to the Redemption Date, to each Holder of Notes to be redeemed, at his
address appearing in the Note Register.
All notices of redemption provide the CUSIP numbers of the
Notes to be redeemed and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
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(3) if less than all the Outstanding Notes are to be redeemed,
the identification (and, in the case of partial redemption of any
Notes, the principal amounts) of the particular Notes to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Note to be redeemed and that
interest thereon will cease to accrue on and after said date,
(5) the place or places where such Notes are to be surrendered
for payment of the Redemption Price, and
(6) that in the case that a Note is only redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to
the Holder of such Note without service charge, a new Note or Notes in
an aggregate amount equal to the unredeemed portion of the Note.
Notice of redemption of Notes to be redeemed pursuant to this
Article Eleven shall be given by the Company or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 11.06 DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on, all
the Notes which are to be redeemed on that date.
SECTION 11.07 NOTES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Notes
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Notes shall cease to bear interest. Upon surrender of any such
Note for redemption in accordance with said notice, such Note shall be paid by
the Company or Paying Agent at the Redemption Price, together with any accrued
interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Notes, or one or more Predecessor Notes,
registered as such at the close of business on the relevant Regular Record Dates
according to their terms and the provisions of Section 3.08.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of (and premium, if any) and
interest on such Note shall be deemed overdue and shall, until paid, bear
interest from the Redemption Date at the rate provided by the Note.
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SECTION 11.08 NOTES REDEEMED IN PART.
Any Note which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 10.02 (with due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Note without service charge, a new Note or Notes, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal amount of the Note
so surrendered.
SECTION 11.09 SPECIAL REDEMPTION.
(a) In the event that the sum of the aggregate purchase price
(including premium) (the "Aggregate Purchase Price") for 103% Notes that the
Company purchases from holders thereof in transactions on or after the date of
this Indenture and on or prior to November 30, 1998 (including purchases in
connection with the 103% Offer to Purchase) (the "Aggregate Purchase Price") is
less than the net proceeds from the offering of the Units, then the Company
shall effect a redemption (the "Special Redemption"), on a date not more than
ten days after November 30, 1998 (the "Special Redemption Date"), in accordance
with the provisions of the Indenture, of Notes in an aggregate principal amount
equal to the amount by which (x) the net proceeds from the offering of the Units
on November 9, 1998 exceed (y) the Aggregate Purchase Price, at a cash
redemption price of 100% of the principal amount of the Notes being redeemed
plus accrued interest on the Notes to the date of redemption.
(b) Each Holder of a Note by its acceptance of the Note agrees
that in connection with any Special Redemption it shall deliver to the Company
for cancellation one Warrant for each $1,000 principal amount of Notes being
redeemed from such Holder.
(c) The Company agrees to deposit the net proceeds from the
offering of the Units into a separate account (the "Special Redemption
Account"). The Company agrees that it shall use funds in the Special Redemption
Account only to pay the Aggregate Purchase Price and as provided below. Any
funds remaining in the Special Redemption Account shall be used to fund the
Special Redemption (to the extent so required), and any excess funds shall be
released to the Company. Funds held in the Special Redemption Account, pending
release for the uses set forth above, shall be invested at the direction of the
Company in investments of the types referred to in clauses (ii) through (viii)
of the definition of Permitted Investments.
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 12.01 COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
The Company may at its option by Board Resolution, at any time
after the Exchange Offer has been consummated (or, if applicable, the Shelf
Registration Statement has been declared or otherwise become effective) in
accordance with the Registration Rights Agreement, elect to have either Section
12.02 or Section 12.03 applied to the Outstanding Notes upon compliance with the
conditions set forth below in this Article Twelve.
SECTION 12.02 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the option provided in Section
12.01 applicable to this Section, the Company and the Guarantors shall be deemed
to have been discharged from its obligations with respect to the Outstanding
Notes and Note Guarantees, on and after the date the conditions set forth below
are satisfied (hereinafter, "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Notes and to have satisfied all its
other obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Notes to receive, solely from the trust fund described in
Section 12.04 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest on such Notes when such
payments are due, (B) the Company's obligations with respect to such Notes under
Sections 3.04, 3.05, 3.06, 3.07, 10.02, 10.03 and 10.19, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article
Twelve. Subject to compliance with this Article Twelve the Company may exercise
its option under this Section 12.02 notwithstanding the prior exercise of its
option under Section 12.03.
SECTION 12.03 COVENANT DEFEASANCE.
Upon the Company's exercise of the option provided in Section
12.01 applicable to this Section, (i) the Company and each Guarantor shall be
released from its obligations under Sections 10.05 through 1018, inclusive, and
Sections 10.20 and 10.21 and Clauses (3) and (4) of Section 8.01, and (ii) the
occurrence of an event specified in Section 5.01(3) (with respect to Section
8.01, only Clauses (1), (3) and (4) thereof), 5.01(4) (with respect to any of
Sections 10.05 through 10.18, inclusive, and Sections 10.20 and 10.21), 5.01(5)
and 5.01(6) shall not be deemed to be an Event of Default on and after the date
the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, Clause or Article,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section, Clause or Article or by reason of
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any reference in any such Section, Clause or Article to any other provision
herein or in any other document; but the remainder of this Indenture and such
Notes shall be unaffected thereby.
SECTION 12.04 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Section 12.02 or Section 12.03 to the then Outstanding Notes:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as Note for, and dedicated solely to, the benefit of the
Holders of such Notes, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment,
money in an amount, or (C) a combination thereof, in an amount
sufficient in the opinion of a nationally recognized firm of
independent certified public accountants expressed in a written opinion
with respect thereto delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee)
to pay and discharge, the principal of (premium, if any) and each
installment of interest, if any, on the Outstanding Notes on the Stated
Maturity of such principal or installment of interest in accordance
with the terms of this Indenture and of such Notes.
(2) In the case of an election under Section 12.02, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Notes will not recognize gain or loss for Federal income tax purposes
as a result of such deposit, defeasance and discharge and will be
subject to Federal income tax on the same amount, in the same manner
and at the same times as would have been the case if such deposit,
defeasance and discharge had not occurred.
(3) In the case of an election under Section 12.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Notes will not recognize
gain or loss for Federal income tax purposes as a result of such
deposit and covenant defeasance and will be subject to Federal income
tax on the same amount, in the same manner and at the same times as
would have been the case if such deposit and covenant defeasance had
not occurred.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Notes, if then listed on
any Notes exchange or approved for trading in any automated quotation
system, will not be delisted or disapproved for such trading as a
result of such deposit.
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(5) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
5.01(7) and (8) are 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).
(6) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Notes are in default within the meaning of
such Act).
(7) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 12.02 or the covenant defeasance under Section 12.03 (as
the case may be) have been complied with.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended from time
to time, or such trust shall be qualified under such act or exempt from
regulation thereunder.
SECTION 12.05 DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST: OTHER
MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
10.03, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 12.05, the "Trustee") pursuant to
Section 12.04 in respect of the Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Notes, of all sums due and to become due thereon in respect of principal
(and premium, if any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
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 12.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request and be relieved of all liability with respect to any
money or U.S. Government Obligations held by it as provided in
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Section 12.04 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written opinion with respect
thereto delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
SECTION 12.06 REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any
money in accordance with Section 12.02 or 12.03 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Twelve until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 12.02 or 12.03; PROVIDED, HOWEVER, that if the Company makes any payment
of principal of (and premium, if any) or interest on any Note following the
reinstatement of its obligations, the Trustee or Paying Agent shall promptly pay
any such amount to the Holder of the Notes and the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or the Paying Agent.
ARTICLE THIRTEEN
Subordination of Notes
SECTION 13.01 NOTES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Note,
by his acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article (subject to the
provisions of Article Four and Article Twelve), the payment of the principal of
(and premium, if any) and interest on the Notes and all other Obligations in
respect of the Notes or on account of any Claim (collectively, the "Subordinated
Obligations") are hereby expressly made subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of the Company.
SECTION 13.02 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of the Company,
then and in any such event specified in (a), (b) or (c) above (each such event,
if any, herein sometimes referred to as an "Insolvency Proceeding") the holders
of all Senior Debt of the Company shall first be entitled to receive payment in
full of the principal of (and premium, if any), interest on and all other
Obligations in respect of such Senior Debt, including all amounts due or to
become due on all such Senior Debt, or provision shall be made for such payment
in cash or cash equivalents or
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otherwise in a manner satisfactory to the holders of such Senior Debt, before
the Holders of the Notes are entitled to receive any payment or distribution of
any kind or character from the Company, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company subordinated to the
payment of the Notes) on account of the Subordinated Obligations or on account
of any purchase, redemption or other acquisition of Notes by the Company or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively, as a "Securities
Payment"), and to that end the holders of Senior Debt of the Company shall be
entitled to receive, for application to the payment thereof, any Securities
Payment which may be payable or deliverable in respect of the Notes in any such
Insolvency Proceeding.
If notwithstanding the foregoing provisions of this Section,
the Trustee or the Holder of any Note shall have received during the pendency of
any Insolvency Proceeding any Securities Payment before all Senior Debt of the
Company is paid in full or payment thereof provided for in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of such Senior
Debt, then in such event such Securities Payment shall be paid over or delivered
forthwith to the holders of Senior Debt for application to the payment of such
Senior Debt remaining unpaid, to the extent necessary to pay such Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of such Senior Debt. Notwithstanding the foregoing, Holders of the
Notes may receive Subordinated Securities.
The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of all or substantially all of its
properties and assets as an entirety to another Person upon the terms and
conditions set forth in Article Eight shall not be deemed an Insolvency
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
SECTION 13.03 NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event that any Senior Payment Default (as defined
below) shall have occurred and be continuing, then no Securities Payment (other
than pursuant to the Special Redemption and except for Subordinated Securities)
shall be made unless and until such Senior Payment Default shall have been cured
or waived in writing in accordance with the instruments governing such
Designated Senior Debt or shall have ceased to exist or all amounts then due and
payable in respect of Senior Debt of the Company shall have been paid in full,
or provision shall have been made for such payment in cash or otherwise in a
manner satisfactory to the holders of such Senior Debt. "Senior Payment Default"
means (i) any default in the payment of principal of (or premium, if any) or
interest on or any other payment Obligation owing in respect of any Designated
Senior Debt of the Company and (ii) any event of default with respect to
Designated Senior Debt of the Company which has resulted in such Designated
Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable.
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In the event that any Senior Nonmonetary Default (as defined
below) shall have occurred and be continuing, then, upon the receipt by the
Company and the Trustee of written notice of such Senior Nonmonetary Default
from the administrative agent under the Credit Facility or the trustee or other
authorized representative of the holders of any Designated Senior Debt (in any
case, a "Senior Representative"), no Securities Payment (other than pursuant to
the Special Redemption and except for Subordinated Securities) shall be made
during the period (the "Blockage Period") commencing on the date of such receipt
of such written notice and ending on the earliest of (i) 179 days after such
date, (ii) the date, if any, on which the Designated Senior Debt to which such
default relates is paid in full or such default is waived in writing in
accordance with the instruments governing such Designated Senior Debt or
otherwise cured and (iii) the date on which the Company and the Trustee receive
written notice from such Senior Representative terminating the Blockage Period.
If notwithstanding the foregoing the Trustee or the Holder of any Note receives
during the pendency of any Blockage Period any Securities Payment before such
Designated Senior Debt is paid in full or payment thereof is provided for in
cash or cash equivalents or otherwise in a manner satisfactory to the holders of
such Designated Senior Debt, then in such event such Securities Payment will be
required to be paid over or delivered forthwith to the holders of such
Designated Senior Debt for application to the payment thereof, to the extent
necessary to pay such Designated Senior Debt in full. Notwithstanding the
foregoing, Holders of the Notes may receive payments pursuant to the Special
Redemption and Subordinated Securities. "Senior Nonmonetary Default" means the
occurrence or existence and continuance of any event of default, or of any event
which, after notice or lapse of time (or both), would become an event of
default, under the terms of any instrument pursuant to which any Designated
Senior Debt of the Company is outstanding, permitting (after notice or lapse of
time or both) one or more holders of such Designated Senior Debt (or a trustee
or agent on behalf of the holders thereof) to declare such Designated Senior
Debt due and payable prior to the date on which it would otherwise become due
and payable, other than a Senior Payment Default.
During any 360-day period, the aggregate of all Blockage
Periods shall not exceed 179 days and there shall be a period of at least 181
consecutive days in each consecutive 360-day period when no Blockage Period is
in effect. When no Blockage Period is in effect, the Company may make all
required payments (including any such payments not made during any Blockage
Period) in respect of the Notes not prohibited by the terms of these
subordination provisions. No Senior Payment Default or Senior Nonmonetary
Default that existed or was continuing on the date of commencement of any
Blockage Period will be, or can be, made the basis for the commencement of a
subsequent Blockage Period, unless such default has been cured or waived for a
period of not less than 90 consecutive days.
The provisions of this Section shall not apply to any
Securities Payment with respect to which Section 13.02 would be applicable.
If a payment of the Notes is accelerated because of an Event
of Default, the Company shall promptly notify holders of Senior Debt of the
acceleration.
In the event that the Trustee or any Holder receives any
payment of any Obligations with respect to the Notes at the time when such
payment is prohibited by this Article Thirteen, such payment shall be held by
the Trustee or such Holder, in trust for the benefit of,
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and shall be paid forthwith over and delivered to, the holders of Senior Debt as
their interest may appear or their Senior Representative, for application to the
payment of all Obligations with respect to Senior Debt remaining unpaid to the
extent necessary to pay such obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Debt.
SECTION 13.04 CERTAIN PAYMENTS PERMITTED.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Notes shall prevent the Company, at any time except
during the pendency of any Insolvency Proceeding referred to in Section 13.02 or
under the conditions described in Section 13.03, from making Securities
Payments.
SECTION 13.05 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full in cash of all amounts due or
to become due on or in respect of Senior Debt of the Company, or the provision
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of such Senior Debt, the Holders of the Notes shall
be subrogated to the rights of the holders of such Senior Debt to receive
payments and distributions of cash, property and securities applicable to such
Senior Debt until the principal of (and premium, if any) and interest on the
Notes shall be paid in full. For purposes of such subrogation, no payments or
distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Notes or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt of the
Company, as the case may be, by Holders of the Notes or the Trustee, shall, as
among the Company, its creditors other than holders of Senior Debt and the
Holders of the Notes, be deemed to be a payment or distribution by the Company
to or on account of the Senior Debt of the Company.
SECTION 13.06 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders on the one hand and
the holders of Senior Debt on the other hand. Nothing contained in this Article
or elsewhere in this Indenture or in the Notes is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Notes, the obligation of the Company, which is absolute
and unconditional (and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Notes the principal of
(and premium, if any) and interest on the Notes as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against the Company of the Holders of the Notes and creditors of
the Company other than the holders of Senior Debt; or (c) prevent the Trustee or
the Holder of any Note from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Debt to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
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SECTION 13.07 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Note by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes
including, without limitation, the timely filing of a claim for the unpaid
balance of the Note held by such Holder in the form required in any Insolvency
Proceeding and causing such claim to be approved. If a proper claim or proof of
debt in the form required in such proceeding is not filed prior to 30 days
before the expiration of the time to file such claims or proofs, then, so long
as any Senior Debt is committed or outstanding under the Credit Facility, the
Senior Representative for the Credit Facility is hereby authorized, and shall
have the right (without any duty), to file an appropriate claim for and on
behalf of such Holders of the Notes.
SECTION 13.08 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the Notes,
without incurring responsibility to the Holders of the Notes and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Notes to the holders of Senior Debt,
even if any right of reimbursement or subrogation or other right or remedy of
any Holder is affected, impaired or extinguished thereby, do any one or more of
the following:
(1) change the manner, place or terms of payment or change or
extend the time of payment of, or renew, exchange, amend, increase or
alter, the terms of any Senior Debt, any Note or therefor or guaranty
thereof or any liability of any obligor thereon (including any
guarantor) to such holder, or any liability incurred directly or
indirectly in respect thereof or otherwise amend, renew, exchange,
extend, modify, increase or supplement in any manner any Senior Debt or
any instrument evidencing or guaranteeing or securing the same or any
agreement under which Senior Debt is outstanding;
(2) sell, exchange, release, surrender, realize upon, enforce
or otherwise deal with in any manner and in any order any property
pledged, mortgaged or otherwise securing Senior Debt or any liability
of any obligor thereon, to such holder, or any liability incurred
directly or indirectly in respect thereof;
(3) settle or compromise any Senior Debt or any other
liability of any obligor of the Senior Debt to such holder or any Note
therefor or any liability incurred directly or indirectly in respect
thereof and apply any sums by whomsoever paid and however
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realized to any liability (including without limitation, Senior Debt)
in any manner or order; and
(4) fail to take or to record or otherwise perfect, for any
reason or for no reason, any lien or Note interest securing Senior Debt
by whomsoever granted, exercise or delay in or refrain from exercising
any right or remedy against any obligor or any guarantor or any other
person, elect any remedy and otherwise deal freely with any obligor and
any Note for the Senior Debt or any liability of any obligor to such
holder of any liability incurred directly or indirectly in respect
thereof.
SECTION 13.09 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 to
or by the Trustee in respect of the Notes. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Notes, unless and
until the Trustee shall have received written notice thereof from the Company or
a holder of Senior Debt or from any trustee therefor; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of Section
6.01, shall be entitled in all respects to assume that no such facts exist,
provided that nothing in this Section 13.09 shall impair the subordination
provisions of this Article Thirteen.
Subject to the provisions of Section 6.01, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee, representative
or agent therefor) to establish that such notice has been given by a holder of
Senior Debt (or a trustee, representative or agent therefor). In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Debt to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such Person under this Article, 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 13.10 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATION
AGENT.
Upon any payment or distribution of assets or securities of
the Company referred to in this Article, the Trustee, subject to the provisions
of Section 6.01, and the Holders of the Notes shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which any
proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Notes, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the
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holders of the Senior Debt and other indebtedness of the Company, as the case
may be, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 13.11 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall not be liable (except for its gross
negligence or willful misconduct) to any such holders if it shall in good faith
mistakenly pay over or distribute to Holders of Notes or to the Company or to
any other Person cash, property or securities to which any holders of Senior
Debt shall be entitled by virtue of this Article or otherwise. The Trustee shall
not be charged with knowledge of the existence of Senior Debt or of any facts
that would prohibit any payment hereunder unless the Trustee shall have received
notice to that effect at the address of the Trustee set forth in Section 1.05.
With respect to the holders of Senior Debt, the Trustee undertakes to perform or
to observe only such of its covenants or obligations as are specifically set
forth in this Article and no implied covenants or obligations with respect to
holders of Senior Debt shall be read into this Indenture against the Trustee.
SECTION 13.12 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.07.
SECTION 13.13 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article in addition to or in place of the Trustee; PROVIDED,
HOWEVER, that this Section 13.13 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent.
SECTION 13.14 DEFEASANCE OF THIS ARTICLE THIRTEEN.
The subordination of the Notes provided by this Article
Thirteen is expressly made subject to the provisions for defeasance or covenant
defeasance in Articles Four and Twelve and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such
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defeasance or covenant defeasance, the Notes then Outstanding shall thereupon
cease to be subordinated pursuant to this Article Thirteen.
ARTICLE FOURTEEN
NOTE GUARANTEES
.
SECTION 14.01 GUARANTEE
Subject to this Article 14, each of the Guarantors by
execution of a supplemental indenture substantially in the form of Exhibit A
hereto hereby, jointly and severally, unconditionally guarantees to each Holder
of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, irrespective of the validity and enforceability of this
Indenture, the Notes and the obligations of the Company hereunder or thereunder,
that: (a) the principal of and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Notes, if any, if
lawful, 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 (b) in case of any extension
of time of payment or renewal of any Notes or any of such other obligations,
that 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. Failing payment when due of any amount so guaranteed
or any performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately. Each Guarantor
agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantors hereby agree that their obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, 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 hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and
all demands whatsoever and covenant that this Note Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Indenture.
If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors or any custodian, trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
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Each Guarantor agrees that it shall not be entitled to any
right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
Each Guarantor further agrees that, as between the Guarantors, on the one hand,
and the Holders and the Trustee, on the other hand, (x) notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby, all amounts otherwise subject to acceleration
as provided for in Article 5 hereof shall be due and payable upon demand by the
Trustee or the Holders in accordance with the provisions of Article 5 and (y) in
the event of any declaration of acceleration of such obligations as provided in
Article 5 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Guarantors for the purpose of this Note
Guarantee. The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantee.
SECTION 14.02 SUBORDINATION OF NOTE GUARANTEE.
The Guarantors agree, and each Holder by accepting a Note
agrees, that the Obligations of each Guarantor under its Note Guarantee pursuant
to this Article 14 shall be junior and subordinated to the Senior Debt of such
Guarantor on the same basis as the Notes are junior and subordinated to Senior
Debt of the Company as provided in Article 10 hereof. For the purposes of the
foregoing sentence, the Trustee and the Holders shall have the right to receive
and/or retain payments by any of the Guarantors only at such times as they may
receive and/or retain payments in respect of the Notes pursuant to this
Indenture.
SECTION 14.03 LIMITATION ON GUARANTOR LIABILITY.
Each Guarantor, and by its acceptance of Notes, each Holder,
hereby confirms that it is the intention of all such parties that the Note
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Note Guarantee. To effectuate the foregoing intention,
the Trustee, the Holders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under its Note Guarantee and this Article 14 shall
be limited to the maximum amount as will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that are
relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this
Article 14, result in the obligations of such Guarantor under its Note Guarantee
not constituting a fraudulent transfer or conveyance.
SECTION 14.04 EXECUTION AND DELIVERY OF NOTE GUARANTEE.
To evidence the Note Guarantee of a Guarantor set forth in
Section 14.01, a supplemental indenture to this Indenture shall be executed on
behalf of such Guarantor by one of its officers.
If an Officer whose signature is on such supplemental
indenture no longer holds that office at the time the Trustee authenticates the
Note, the Note Guarantee shall be valid nevertheless.
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The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Note
Guarantee set forth in this Indenture provided pursuant to a supplemental
indenture to this Indenture on behalf of the Guarantors (whether or not the
supplemental indenture of such Guarantor is executed before or after delivery of
such Note).
SECTION 14.05 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN
TERMS.
Except as provided by Section 14.06, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person whether or not affiliated with such Guarantor
unless:
(a) the Person formed by or surviving any such consolidation
or merger (if other than a Guarantor or the Company) unconditionally assumes all
the obligations of such Guarantor, pursuant to a supplemental indenture in form
and substance reasonably satisfactory to the Trustee, under the Notes, this
Indenture and the Note Guarantee on the terms set forth herein or therein;
(b) immediately after giving effect to such transaction, no
Default or Event of Default exists; and
(c) the Company would, at the time of such transaction and
after giving pro forma effect thereto as if such transaction had occurred at the
beginning of the applicable four-quarter period, be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Consolidated EBITDA Coverage
Ratio test set forth in the first paragraph of Section 10.08 hereof.
In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee and satisfactory in form to the Trustee,
of the Note Guarantee and the due and punctual performance of all of the
covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. All the Note
Guarantees so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Note Guarantee theretofore and thereafter issued in
accordance with the terms of this Indenture as though all of such Note Guarantee
had been issued at the date of the execution hereof.
Except as set forth in Articles 8 and 10 hereof, and
notwithstanding clauses (a) and (b) above, nothing contained in this Indenture
or in any of the Notes shall prevent any consolidation or merger of a Guarantor
with or into the Company or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or substantially as an
entirety to the Company or another Guarantor.
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SECTION 14.06 RELEASES FOLLOWING SALE OF ASSETS.
In the event of a sale or other disposition to any Person
other than Company or any Subsidiary of the Company of all or substantially all
of the assets of any Guarantor, by way of merger, consolidation or otherwise, or
a sale or other disposition of all or substantially all of the capital stock of
any Guarantor, then such Guarantor (in the event of a sale or other disposition,
by way of merger, consolidation or otherwise, of all or substantially all of the
capital stock of such Guarantor) or the Person acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets
of such Guarantor) will be released and relieved of any obligations under its
Note Guarantee; provided that such sale or other disposition complies with the
provisions of paragraph (a) of Section 10.17 (other than clause (iii) thereof)
and the other provisions of this Indenture. Upon delivery by the Company to the
Trustee of an Officers" Certificate and an Opinion of Counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
applicable provisions of this Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor from its
obligations under its Note Guarantee.
Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal of and interest,
if any, on the Notes and for the other obligations of any Guarantor under this
Indenture as provided in this Article 14.
ARTICLE FIFTEEN
Jurisdiction and Consent to Service of Process.
SECTION 15.01 JURISDICTION AND CONSENT TO SERVICE OF PROCESS.
(a) The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to the Notes or this Indenture, or for
recognition or enforcement of any judgment, and the Company hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. The Company agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Article Fourteen shall affect any right that
any Holder or the Trustee may otherwise have to bring any action or proceeding
relating to the Notes or this Indenture against the Company or its properties in
the courts of any jurisdiction.
(b) The Company hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to the Notes or this Indenture in any New
York State or Federal court. The Company hereby
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irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(c) The Company irrevocably consents to service of process in
the manner provided for notices in Section 1.05. Nothing in this Agreement will
affect the right of any Holder or the Trustee to serve process in any other
manner permitted by law.
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
Insilco Corporation,
By:____________________________
Name:
Title:
By:____________________________
Name
Title:
STAR BANK, N.A.,
As Trustee
By:____________________________
Name:
Title:
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __th day of November, 1998, before me personally came
David A. Kauer, to me known, who, being by me duly sworn, did depose and say
that he is the Vice President and Treasurer of Insilco Corporation, the
corporation described in and which executed the foregoing instrument, and that
he signed his name thereto by authority of the Board of Directors of said
corporation.
--------------------------------
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the __th day of November, 1998, before me personally came
Kenneth H. Koch, to me known, who, being by me duly sworn, did depose and say
that he is the Vice President, General Counsel and Secretary of Insilco
Corporation, the corporation described in and which executed the foregoing
instrument, and that he signed his name thereto by authority of the Board of
Directors of said corporation.
--------------------------------
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ANNEX A -- Form of Unrestricted Notes Certificate
UNRESTRICTED NOTES CERTIFICATE
(For removal of Securities Act Legends pursuant to Section 306(c))
Star Bank, N.A.
425 Walnut Street
Cincinnati, Ohio 45201-1118
Re: 12% Senior Subordinated Notes due 2007 of Insilco
Corporation (the "NOTES")
Reference is made to the Indenture, dated as of November 9,
1998 (the "Indenture"), from Insilco Corporation (the "Company") to Star Bank,
N.A., as Trustee. Terms used herein and defined in the Indenture or in Rule 144
under the U.S. Securities Act of 1933 (the "Securities Act") are used herein as
so defined.
This certificate relates to U.S. $________ principal amount of
Notes, which are evidenced by the following certificate(s) (the "Specified
Notes"):
CUSIP No(s). ___________________
CERTIFICATE No(s). _____________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Notes or (ii) it is acting on behalf of all the
beneficial owners of the Specified Notes and is duly authorized by them to do
so. Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Notes are represented by a Global Note, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Notes are not represented by a Global
Note, they are registered in the name of the Undersigned, as or on behalf of the
Owner.
The Owner has requested that the Specified Notes be exchanged
for Notes bearing no Securities Act Legend pursuant to Section 3.06(c) of the
Indenture. In connection with such exchange, the Owner hereby certifies that the
exchange is occurring after a holding period of at least two years (computed in
accordance with paragraph (d) of Rule 144) has elapsed since the Specified Notes
were last acquired from the Company or from an affiliate of the Company,
whichever is later, and the Owner is not, and during the preceding three months
has
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not been, an affiliate of the Company. The Owner also acknowledges that any
future transfers of the Specified Notes must comply with all applicable
securities laws of the states of the United States and other jurisdictions.
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchaser.
Dated: ___________________________________________
(Print the name of the Undersigned, as such
term is defined in the second paragraph of
this certificate).
By:________________________________________
Name:
Title:
(If the Undersigned is a corporation,
partnership or fiduciary, the title of the
person signing on behalf of the Undersigned
must be stated.)
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EXHIBIT A
THIS FIRST SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"),
entered into as of __________, 199__, among Insilco Corporation, a Delaware
corporation (the "COMPANY"), [INSERT EACH GUARANTOR EXECUTING THIS SUPPLEMENTAL
INDENTURE AND ITS JURISDICTION OF INCORPORATION] (each an "UNDERSIGNED") and
Star Bank, N.A., as trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee entered into the Indenture, dated
as of November 9, 1998 (the "INDENTURE"), relating to the Company's 12% Senior
Subordinated Notes due 2007 (the "NOTES");
WHEREAS, as a condition to the Trustee entering into the Indenture and
the Holders purchase of the Notes, the Company agreed pursuant to Section 10.21
of the Indenture to cause its Domestic Subsidiaries which are Wholly Owned
Restricted Subsidiaries to provide the Note Guarantee in certain circumstances.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained and intending to be legally bound, the parties hereto hereby
agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined
herein are used as defined in the Indenture.
Section 2. Pursuant to Section 9.01 of the Indenture, each Undersigned,
by its execution of this Supplemental Indenture, agrees to be a Guarantor under
the Indenture and to be bound by the terms of the Indenture applicable to
Guarantors, including, but not limited to, Article 14 thereof, and to comply
with the provisions of the Registration Rights Agreement (as such term is
defined in the Indenture) applicable to such Guarantor.
Section 3. This Supplemental Indenture shall be governed by and
construed in accordance with the internal laws of the State of New York.
Section 4. This Supplemental Indenture may be signed in various
counterparts which together shall constitute one and the same instrument.
Section 5. This Supplemental Indenture is an amendment supplemental to
the Indenture and said Indenture and this Supplemental Indenture shall
henceforth be read together.
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Supplemental Indenture or have caused this Supplemental Indenture to be duly
executed on their
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respective behalf by their respective officers thereunto duly authorized, as of
the day and year first above written.
INSILCO CORPORATION
By: __________________________
Name:
Title:
[GUARANTOR]
By: __________________________
Name:
Title:
STAR BANK, N.A.,
as Trustee
By: __________________________
Name:
Title:
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FIRST SUPPLEMENTAL INDENTURE
dated as of __________, 199__
among
INSILCO CORPORATION,
[GUARANTOR]
and
STAR BANK, N.A.,
as Trustee
with respect to
Insilco Corporation's 12% Senior Subordinated
Notes due 2007