Exhibit 4.23
Conformed Copy
FLAGSTAR CORPORATION
AND
FIRST TRUST NATIONAL ASSOCIATION, TRUSTEE
Indenture
Dated as of September 23, 1993
$275,000,000
10 3/4% Senior Notes Due 2001
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS
Authorization of Indenture 1
Form of Face of Security 1
Form of Reverse of Security 3
Form of Trustee's Certificate of Authentication 8
Compliance with Legal Requirements 8
Purpose of and Consideration for Indenture 8
ARTICLE ONE
DEFINITIONS.
SECTION 1.1. Certain Terms Defined 9
Acquisition Indebtedness 9
Adjusted Consolidated Net Worth 9
Affiliate 10
Agent 10
Asset Segment 10
Associates 10
Bankruptcy Law 10
Board of Directors 11
Business Day 11
Business Segment 11
Capital Stock 11
Cash Equivalents 11
Code 12
Commission 12
Consolidated Fixed Charges 12
Consolidated Net Income 13
Consolidated Net Worth 13
Controlled Corporation
EBITDA Amount 14
Corporate Trust Office 14
Credit Agent 14
Credit Agreement 14
Default 14
Disqualified Stock 14
DLJ 15
DLJ Capital 15
EBITDA 15
11.25% Debentures 16
Equity Interests 16
Equity Investment 16
Event of Default 16
Excluded Properties 16
Existing Indebtedness 16
FCI 16
FCI Common Stock 16
Fixed Charge Coverage Ratio 16
GTO 16
GTO Fee 16
Holder, holder of Securities,
Securityholder 17
Indebtedness 17
Indenture 17
Indentures 17
Interest Rate Agreement 17
Investment 17
Issuer 18
KKR 18
Lien 18
Mortgage Financing 18
Mortgage Financing Proceeds 18
Mortgage Refinancing 18
Mortgage Refinancing Proceeds 18
Net Income 19
Net Proceeds 19
New Senior Subordinated Securities 19
Obligations 20
OECD 20
Officers' Certificate 20
Opinion of Counsel 20
Outstanding 20
Permitted Investments 21
Preferred Stock 21
principal 21
Recapitalization 21
Remaining Section 355 Amount 21
Responsible Officer 22
Restricted Investments 22
Section 355 Percentage 22
Section 355 Transaction 23
Security or Securities 23
Senior Indebtedness 23
Significant Subsidiary 23
Specified Issuer EBITDA 24
Subsidiary 24
10% Debentures 24
10 7/8% Notes 24
Trustee 24
Trust Indenture Act of 1939 24
Unrestricted Subsidiary 24
Weighted Average Life to Maturity 25
ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES.
SECTION 2.1. Authentication and Delivery of
Securities 25
SECTION 2.2. Execution of Securities 26
SECTION 2.3. Certificate of Authentication 26
SECTION 2.4. Form, Denomination and Date of
Securities; Payments of Interest 26
SECTION 2.5. Registration, Transfer and Exchange 27
SECTION 2.6. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities 29
SECTION 2.7. Cancellation of Securities;
Destruction Thereof 30
SECTION 2.8. Temporary Securities 30
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE.
SECTION 3.1. Payment of Principal and Interest 31
SECTION 3.2. Offices for Payments, etc. 31
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee 31
SECTION 3.4. Paying Agents 32
SECTION 3.5. Certificates to Trustee 33
SECTION 3.6. Securityholder Lists 33
SECTION 3.7. Reports by the Issuer 33
SECTION 3.8. Reports by the Trustee 34
SECTION 3.9. Limitation on Restricted Payments 34
SECTION 3.10. Limitation on Dividends and Other
Payment Restrictions Affecting
Subsidiaries 39
SECTION 3.11. Limitation on Additional Indebtedness
and Issuance of Disqualified Stock 40
SECTION 3.12. Limitation on Transactions with
Affiliates 42
SECTION 3.13. Sale of Assets 43
SECTION 3.14. Corporate Existence 46
SECTION 3.15. Limitation on Liens 46
SECTION 3.16. Issuer to Cause Certain
Subsidiaries to Become Guarantors 49
SECTION 3.17. Investments in Unrestricted
Subsidiaries 49
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 4.1. Events of Default 50
SECTION 4.2. Acceleration 52
SECTION 4.3. Other Remedies 53
SECTION 4.4. Waiver of Defaults 53
SECTION 4.5. Control by Majority 53
SECTION 4.6. Limitation on Suits 54
SECTION 4.7. Rights of Holders to Receive Payment 54
SECTION 4.8. Collection Suit by Trustee 55
SECTION 4.9. Trustee May File Proofs of Claim 55
SECTION 4.10. Priorities 56
SECTION 4.11. Undertaking for Costs 56
ARTICLE FIVE
CONCERNING THE TRUSTEE.
SECTION 5.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default 57
SECTION 5.2. Certain Rights of the Trustee 58
SECTION 5.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof 60
SECTION 5.4. Trustee and Agents May Hold
Securities; Collections, etc. 60
SECTION 5.5. Moneys Held by Trustee 60
SECTION 5.6. Compensation and Indemnification
of Trustee and Its Prior Claim 60
SECTION 5.7. Right of Trustee to Rely on
Officers' Certificate, etc. 61
SECTION 5.8. Persons Eligible for Appointment
as Trustee 61
SECTION 5.9. Resignation and Removal; Appointment
of Successor Trustee 62
SECTION 5.10. Acceptance of Appointment by
Successor Trustee 63
SECTION 5.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee 64
SECTION 5.12. Indenture Not Creating Potential
Conflicting Interests for the
Trustee 64
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS.
SECTION 6.1. Evidence of Action Taken by
Securityholders 65
SECTION 6.2. Proof of Execution of Instruments
and of Holding of Securities;
Record Date 65
SECTION 6.3. Holders to Be Treated as Owners 66
SECTION 6.4. Securities Owned by Issuer Deemed Not
Outstanding 66
SECTION 6.5. Right of Revocation of Action Taken 67
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
SECTION 7.1. Supplemental Indentures Without
Consent of Securityholders 67
SECTION 7.2. Supplemental Indentures With Consent
of Securityholders 69
SECTION 7.3. Effect of Supplemental Indenture 70
SECTION 7.4. Documents to Be Given to Trustee 70
SECTION 7.5. Notation on Securities in Respect of
Supplemental Indentures 70
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 8.1. When Issuer May Merge, etc. 71
SECTION 8.2. Successor Corporation Substituted 72
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS; DEFEASANCE.
SECTION 9.1. Satisfaction and Discharge of
Indenture 73
SECTION 9.2. Application by Trustee of Funds
Deposited for Payment of Securities 74
SECTION 9.3. Repayment of Moneys Held by Paying
Agent 74
SECTION 9.4. Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Three
Years 74
SECTION 9.5. Defeasance 75
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
SECTION 10.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability 77
SECTION 10.2. Provisions of Indenture for the Sole
Benefit of Parties and Security-
holders 77
SECTION 10.3. Successors and Assigns of Issuer
Bound by Indenture 77
SECTION 10.4. Notices and Demands on Issuer,
Trustee and Securityholders 77
SECTION 10.5. Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein 78
SECTION 10.6. Payments Due on Saturdays, Sundays
and Holidays 79
SECTION 10.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939 80
SECTION 10.8. New York Law to Govern 80
SECTION 10.9. Counterparts 80
SECTION 10.10. Effect of Headings 80
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.
SECTION 11.1. Right of Optional Redemption 80
SECTION 11.2. Notice of Redemption; Partial
Redemptions 80
SECTION 11.3. Payment of Securities Called for
Redemption 82
SECTION 11.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption 83
SECTION 11.5. Offer to Redeem by Application of
Net Proceeds 83
TESTIMONIUM 85
SIGNATURES 85
ACKNOWLEDGMENTS 85
THIS INDENTURE, dated as of September 23, 1993
among Flagstar Corporation, a Delaware corporation (the
"Issuer"), and First Trust National Association, a national
banking association, as Trustee (the "Trustee"),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue
of its 10 3/4% Senior Notes Due 2001 (the "Securities") and,
to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Securities and the Trustee's
certificate of authentication shall be in substantially the
following form:
[FORM OF FACE OF SECURITY]
No.
$
FLAGSTAR CORPORATION
10 3/4% Senior Notes Due 2001
Flagstar Corporation, a Delaware corporation (the
"Issuer"), for value received hereby promises to pay to or registered
assigns the principal sum
of Dollars at the Issuer's office or agency for
said purpose on September 15, 2001 in such coin or currency
of the United States of America as at the time of payment
shall be legal tender for the payment of public and private
debts, and to pay interest, semi-annually on March 15 and
September 15 of each year, on said principal sum in like
coin or currency at the rate per annum set forth above at
said office or agency from the March 15 or the September 15,
as the case may be, next preceding the date of this Security
to which interest on the Securities has been paid or duly
provided for, unless the date hereof is a date to which
interest on the Securities has been paid or duly provided
for, in which case from the date of this Security, or unless
no interest has been paid or duly provided for on the
Securities, in which case from September 23, 1993 until
payment of said principal sum has been made or duly provided
for. Notwithstanding the foregoing, if the date hereof is
after March 1 or September 1, as the case may be, and before
the following March 15 or September 15, this Security shall
bear interest from such March 15 or September 15; provided,
that if the Issuer shall default in the payment of interest
due on such March 15 or September 15, then this Security
shall bear interest from the next preceding March 15 or
September 15 to which interest on the Securities has been
paid or duly provided for, or, if no interest has been paid
or duly provided for on the Securities, from September 23,
1993. The interest so payable on any March 15 or September
15 will, except as otherwise provided in the Indenture
referred to on the reverse hereof, be paid to the person in
whose name this Security is registered at the close of
business on the March 1 or September 1 preceding such March
15 or September 15, whether or not such day is a business
day; provided that interest may be paid, at the option of
the Issuer, by mailing a check therefor payable to the
registered holder entitled thereto at his last address as it
appears on the Security register or by wire transfer to such
holder.
Reference is made to the further provisions set
forth on the reverse hereof. Such further provisions shall
for all purposes have the same effect as though fully set
forth at this place.
This Security shall not be valid or obligatory
until the certificate of authentication hereon shall have
been duly signed by the Trustee acting under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this
instrument to be duly executed under its corporate seal.
Dated:
[Seal]
______________________________
______________________________
[FORM OF REVERSE OF SECURITY]
Flagstar Corporation
10 3/4% Senior Notes Due 2001
This Security is one of a duly authorized issue of
debt securities of the Issuer, limited to the aggregate
principal amount of $275,000,000 (except as otherwise
provided in the Indenture mentioned below), issued or to be
issued pursuant to an indenture dated as of September 23,
1993 (the "Indenture"), duly executed and delivered by the
Issuer to First Trust National Association, as Trustee
(herein called the "Trustee"). Reference is hereby made to
the Indenture and all indentures supplemental thereto for a
description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the
Trustee, the Issuer and the holders (the words "holders" or
"holder" meaning the registered holders or registered
holder) of the Securities.
If an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the
Trustee or the holders of at least 30% (or 25% in the case
of a default with respect to payment of principal of,
premium, if any, or interest on the Securities) in principal
amount of the then outstanding Securities may declare the
principal amount of the Securities to be due and payable
immediately; provided, however, that if any Senior
Indebtedness is outstanding pursuant to the Credit
Agreement, upon a declaration of acceleration, such
principal and interest shall be payable upon the earlier of
(x) the day that is five Business Days after the provision
to the Issuer and the Credit Agent of such written notice
unless such Event of Default has been cured or waived prior
to such date and (y) the date of acceleration of any Senior
Indebtedness under the Credit Agreement. In the case of an
Event of Default arising from certain events of bankruptcy
or insolvency, all outstanding Securities become due and
payable immediately without further action or notice. The
Indenture provides that in certain events a declaration of
acceleration and its consequences may be waived by the
holders of a majority in aggregate principal amount of the
Securities then outstanding and that the holders of a
majority in aggregate principal amount of the Securities
then outstanding may waive any default under the Indenture
and its consequences except a default in the payment of
principal of, premium, if any, or interest on any of the
Securities. Any such consent or waiver by the holder of
this Security (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such holder and upon
all future holders and owners of this Security and any
Security which may be issued in exchange or substitution
herefor, whether or not any notation thereof is made upon
this Security or such other Securities.
The Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority
in aggregate principal amount of the Securities at the time
outstanding, evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the holders of the
Securities; provided that no such supplemental indenture
shall (a) extend the final maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce
the premium, if any, payable thereon, or reduce any amount
payable on the redemption thereof or impair or affect the
rights of any Securityholder to institute suit for the
payment thereof, or waive a default in the payment of
principal of, premium, if any, or interest on any Security,
change the currency of payment of principal of, premium, if
any, or interest on any Security, or modify any provision in
the Indenture with respect to the priority of the Securities
in right of payment without the consent of the holder of
each Security so affected; or (b) reduce the aforesaid
percentage of Securities, the consent of the holders of
which is required for any such supplemental indenture,
without the consent of the holders of all Securities then
outstanding.
The Securities are senior in right of payment to
the 10% Convertible Junior Subordinated Debentures Due 2014
of the Issuer issued pursuant to the indenture dated as of
November 1, 1989 between the Issuer and United States Trust
Company of New York, trustee, as supplemented.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter
or impair the obligation of the Issuer, which is absolute
and unconditional, to pay the principal of, premium, if any
and interest on this Security at the place, times, and rate,
and in the currency, herein prescribed.
The Securities are issuable only as registered
Securities without coupons in denominations of $1,000 and
any multiple of $1,000.
At the office or agency of the Issuer referred to
on the face hereof and in the manner and subject to the
limitations provided in the Indenture, Securities may be
exchanged for a like aggregate principal amount of
Securities of other authorized denominations.
Upon due presentment for registration of transfer
of this Security at the above-mentioned office or agency of
the Issuer, a new Security or Securities of authorized
denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture.
No service charge shall be made for any such transfer, but
the Issuer may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in
relation thereto.
The Securities will not be subject to redemption
at the option of the Issuer prior to maturity, except that
prior to September 15, 1996, the Issuer may redeem up to 35%
of the original aggregate principal amount of the
Securities, at a redemption price (expressed as a percentage
of the principal amount) of 110%, plus accrued and unpaid
interest, if any, to the redemption date, with that portion,
if any, of the net proceeds of any public offering for cash
of FCI Common Stock that is used by FCI to acquire from the
Issuer shares of common stock of the Issuer; provided that
any such redemption is effected within 60 days after the
closing of such public offering of FCI Common Stock.
Notice of redemption shall be mailed at least 30
and not more than 60 days prior to the date fixed for
redemption to each holder of Securities to be redeemed at
his registered address. Securities may be redeemed in part
only in multiples of $1,000.
Subject to the terms of the Indenture, if the
Issuer consummates any Asset Sale or sells a Business
Segment (as such terms are defined in the Indenture), the
Issuer shall be obligated to apply the proceeds thereof to
one or more of the following in such combination as the
Issuer may choose: (i) an investment in another asset or
business in the same line of business as the Issuer and its
Subsidiaries, provided such investment occurs within 366
days of such Asset Sale or sale of a Business Segment, (ii)
an offer, expiring within 366 days of such Asset Sale or
such sale of a Business Segment, to redeem Securities at a
redemption price not less than 100% of the principal amount
thereof plus accrued and unpaid interest, if any, to the
redemption date (a "Net Proceeds Offer") or (iii) the
prepayment of outstanding Senior Indebtedness within 366
days of such Asset Sale or sale of a Business Segment;
provided, however, that if the net amount not invested
pursuant to clause (i) or applied pursuant to clause (iii)
above to the prepayment of Senior Indebtedness is less than
$15,000,000, the Issuer shall not be further obligated to
offer to redeem Securities pursuant to clause (ii) above.
Holders of Securities which are the subject of an offer to
redeem shall receive an offer to redeem from the Issuer
prior to any related redemption date, and may elect to have
such Securities redeemed by completing the form entitled
"Option of Holder to Elect to Have Security Redeemed"
appearing below. Notwithstanding any provision of the
Indenture to the contrary, the Issuer may, for a period of
120 days after the last date on which holders of Securities
are permitted to elect to have their Securities redeemed in
a Net Proceeds Offer, use any Net Proceeds that were
available to make such Net Proceeds Offer but not used to
redeem Securities pursuant thereto, to purchase, redeem or
otherwise acquire or retire for value securities of the
Issuer ranking junior in right of payment to the Securities
at a price, stated as a percentage of the principal or face
amount of such junior securities, not greater than the
price, stated as a percentage of the principal amount of the
Securities, offered in the Net Proceeds Offer; provided that
if the Net Proceeds Offer is for a principal amount (the
"Net Proceeds Offer Amount") of the Securities less than the
aggregate principal amount of the Securities then
outstanding, then the Net Proceeds available for use by the
Issuer for such a purchase, redemption or other acquisition
or retirement for value of junior securities shall not
exceed the Net Proceeds Offer Amount.
Subject to payment by the Issuer of a sum
sufficient to pay the amount due on redemption, interest on
this Security (or portion hereof if this Security is
redeemed in part) shall cease to accrue upon the date duly
fixed for redemption of this Security (or portion hereof if
this Security is redeemed in part).
The Issuer, the Trustee, and any authorized agent
of the Issuer or the Trustee, may deem and treat the
registered holder hereof as the absolute owner of this
Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon made by anyone other than the Issuer or the Trustee
or any authorized agent of the Issuer or the Trustee), for
the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the
provisions on the face hereof, interest hereon and for all
other purposes, and neither the Issuer nor the Trustee nor
any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the
principal of or premium, if any, or the interest on this
Security, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture
or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such,
past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any
successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement
of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and
released.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
FIRST TRUST NATIONAL ASSOCIATION
, as Trustee
Authorized Signatory
OPTION OF HOLDER TO ELECT TO HAVE SECURITY REDEEMED
If you have received a Net Proceeds Offer from the
Issuer and want to elect to have this Security redeemed by
the Issuer pursuant to Section 11.5 of the Indenture, check
the box: [ ]
Date: _______________ Your Signature: ____________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee: ____________________________
AND WHEREAS, all things necessary to make the
Securities, when executed by the Issuer and authenticated
and delivered by the Trustee as in this Indenture provided,
the valid, binding and legal obligations of the Issuer, and
to constitute these presents a valid indenture and agreement
according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases
of the Securities by the holders thereof, the Issuer and the
Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS.
SECTION 1.1 Certain Terms Defined. The following
terms (except as otherwise expressly provided or unless the
context otherwise clearly requires) for all purposes of this
Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All
other terms used in this Indenture which are defined in the
Trust Indenture Act of 1939 or the definitions of which in
the Securities Act of 1933 are referred to in the Trust
Indenture Act of 1939 (except as herein otherwise expressly
provided or unless the context otherwise clearly requires),
shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the
date of this Indenture. All accounting terms used herein
and not expressly defined shall have the meanings given to
them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting
principles" shall mean such accounting principles which are
generally accepted at the date or time of any computation or
at the date hereof. 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. The terms defined in this
Article include the plural as well as the singular.
"Acquisition Indebtedness" means Indebtedness of
any person existing at the time such person becomes a
Subsidiary of the Issuer (or at the time such person is
merged with or into a Subsidiary of the Issuer), excluding
Indebtedness of any Subsidiary of the Issuer (other than
such person) incurred in connection with, or in
contemplation of, such person becoming a Subsidiary of the
Issuer.
"Adjusted Consolidated Net Worth" with respect to
the Issuer means, as of any date, the Consolidated Net Worth
of the Issuer plus (i) the respective amounts reported on
the Issuer's most recent consolidated balance sheet with
respect to any preferred stock (other than Disqualified
Stock) that by its terms is not entitled to the payment of
dividends unless such dividends may be declared and paid
only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash
received by the Issuer upon issuance of such preferred stock
or of securities converted into such preferred stock,
excluding (ii) any amount reflecting any equity adjustment
resulting from a foreign currency translation on a
consolidated balance sheet of the Issuer, but only to the
extent not excluded in calculating Consolidated Net Worth of
the Issuer, plus (iii) any gain realized upon the sale or
other disposition of any Business Segments to the extent
such gains do not exceed the sum of the aggregate amount of
any losses included (on a net after tax basis) in the
computation of Consolidated Net Worth, plus (iv) transaction
fees and expenses related to the Recapitalization and any
related transactions including amortization thereof, but
only to the extent such fees and expenses were included in
calculating Consolidated Net Worth of the Issuer.
"Affiliate" means any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer. For the purposes
of this definition, beneficial ownership of 10% or more of
the voting common equity of a person shall be deemed to be
control unless ownership of a lesser amount may be deemed to
be control under the Trust Indenture Act; provided, however,
that neither DLJ Capital nor any of its affiliates shall be
deemed to be an Affiliate for purposes of the covenants in
this Indenture.
"Agent" means any registrar, paying agent or co-
registrar for the Securities.
"Asset Segment" means (i) Denny's Holdings, Inc.,
(ii) Spartan Holdings, Inc., (iii) Canteen Holdings, Inc.,
or (iv) any Subsidiary, group of Subsidiaries or group of
assets (other than inventory held for sale in the ordinary
course of business) of the Issuer or its Subsidiaries which
(A) accounts for at least 20 percent of the total assets of
the Issuer and its Subsidiaries on a consolidated basis as
of the end of the last fiscal quarter immediately preceding
the date for which such determination is being made or (B)
accounts for at least 20 percent of the income from
continuing operations before income taxes, extraordinary
items and cumulative effects of changes in accounting
principles of the Issuer and its Subsidiaries on a
consolidated basis for the four full fiscal quarters
immediately preceding the date for which such calculation is
being made.
"Associates" means TW Associates, L.P. and KKR
Partners II, L.P.
"Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors.
"Board of Directors" means either the Board of
Directors of the Issuer or any committee of such Board duly
authorized to act hereunder.
"Business Day" means a day which in the city (or
in any of the cities, if more than one) where amounts are
payable in respect of the Securities, as specified on the
face of the form of Security recited above, is neither a
legal holiday nor a day on which banking institutions are
authorized by law or regulation to close.
"Business Segment" means: (i) each of the
Issuer's Significant Subsidiaries, (ii) the capital stock of
any of the Issuer's Subsidiaries or (iii) any group of
assets of the Issuer or any Subsidiary whether now owned or
hereafter acquired, provided, in each case, that the sale
(other than the sale of inventory in the ordinary course of
business), lease, conveyance or other disposition of such
Significant Subsidiary, capital stock or group of assets, as
the case may be, either in a single transaction or group of
related transactions that are part of a common plan, results
in Net Proceeds to the Issuer and its Subsidiaries of $50
million or more.
"Capital Stock" means any and all shares,
interests, participations, rights or other equivalents
(however designated) of corporate stock.
"Cash Equivalents" means (i) securities issued or
directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time
deposits and certificates of deposit of any domestic
commercial bank of recognized standing having capital and
surplus in excess of $500,000,000 or a commercial bank
organized under the laws of any other country that is a
member of the OECD and having total assets in excess of
$500,000,000 with a maturity date not more than one year
from the date of acquisition, (iii) repurchase obligations
with a term of not more than 7 days for underlying
securities of the types described in clause (i) above
entered into with any bank meeting the qualifications
specified in clause (ii) above, (iv) commercial paper issued
by the parent corporation of any domestic commercial bank of
recognized standing having capital and surplus in excess of
$500,000,000 and commercial paper issued by others rated at
least A-2 or the equivalent thereof by Standard & Poor's
Corporation or at least P-2 or the equivalent thereof by
Moody's Investors Service, Inc. and in each case maturing
within one year after the date of acquisition and (v)
investments in money market funds substantially all of whose
assets comprise securities of the types described in clauses
(i) through (iv) above.
"Code" means the Internal Revenue Code of 1986, as
it may be amended from time to time.
"Commission" means the Securities and Exchange
Commission.
"Consolidated Fixed Charges" means, with respect
to any person for a given period, consolidated interest
expense of such person and its consolidated Subsidiaries to
the extent deducted in computing Consolidated Net Income
(including, without limitation, amortization of original
issue discount and non-cash interest payments, all net
payments and receipts in respect of Interest Rate Agreements
and the interest component of capital leases, but excluding
deferred financing costs existing immediately after the
closing of the Equity Investment or incurred in connection
with the Recapitalization and amortization thereof) plus the
amount of all cash dividend payments on any series of
preferred stock of such person; provided that if, during
such period (i) such person or any of its Subsidiaries shall
have made any asset sales (other than, in the case of the
Issuer and its Subsidiaries, sales of the Capital Stock of
or any assets of Unrestricted Subsidiaries), Consolidated
Fixed Charges of such person and its Subsidiaries for such
period shall be reduced by an amount equal to the
Consolidated Fixed Charges directly attributable to the
assets which are the subject of such asset sales for such
period and (ii) such person or any of its Subsidiaries has
made any acquisition of assets or Capital Stock (occurring
by merger or otherwise), including, without limitation, any
acquisition of assets or Capital Stock occurring in
connection with the transaction causing a calculation to be
made hereunder, Consolidated Fixed Charges of such person
and its Subsidiaries shall be calculated on a pro forma
basis as if such acquisition of assets or Capital Stock
(including the incurrence of any Indebtedness in connection
with any such acquisition and the application of the
proceeds thereof) took place on the first day of such
period; and provided, further, that in the case of the
Issuer, if the closing of any aspect of the Recapitalization
occurred during such period, Consolidated Fixed Charges of
the Issuer and its Subsidiaries for such period shall be
calculated on a pro forma basis as if such closing
(including the incurrence of any Indebtedness in connection
with such closing and the application of the proceeds
thereof) took place on the first day of such period.
"Consolidated Net Income" with respect to any
person (the "Subject Person") means, for a given period, the
aggregate of the Net Income of such Subject Person and its
Subsidiaries for such period, on a consolidated basis,
determined in accordance with generally accepted accounting
principles, provided that (i) the Net Income of any person
that is not a Subsidiary of the Subject Person or is
accounted for by the equity method of accounting shall be
included only to the extent of the amount of dividends or
distributions paid to the Subject Person and its
Subsidiaries, (ii) the Net Income of any person that is a
Subsidiary (other than a Subsidiary of which at least 80% of
the capital stock having ordinary voting power for the
election of directors or other governing body of such
Subsidiary is owned by the Subject Person directly or
indirectly through one or more Subsidiaries) shall be
included only to the extent of the lesser of (a) the amount
of dividends or distributions paid to the Subject Person and
its Subsidiaries and (b) the Net Income of such person,
(iii) the Net Income of any person acquired by the Subject
Person and its Subsidiaries in a pooling of interests
transaction for any period prior to the date of such
acquisition shall be excluded and (iv) the Net Income (if
positive) of any person that becomes a Subsidiary of the
Issuer after the date hereof shall be included only to the
extent that the declaration or payment of dividends on
Capital Stock or similar distributions by that Subsidiary to
the Issuer or to any other consolidated Subsidiary of the
Issuer of such Net Income is at the time permitted under the
terms of its charter and all agreements, instruments,
judgments, decrees, orders, statutes, rules and governmental
regulations binding upon or applicable to that Subsidiary,
provided that if the exclusion from an otherwise positive
Net Income of certain amounts pursuant to this clause (iv)
would cause such Net Income to be negative, then such Net
Income shall be deemed to be zero.
"Consolidated Net Worth" means, with respect to
any person, at any date of determination, the sum of the
Capital Stock and additional paid-in capital plus retained
earnings (or minus accumulated deficit) of such person and
its Subsidiaries on a consolidated basis, each item to be
determined in conformity with generally accepted accounting
principles (excluding the effects of foreign currency
exchange adjustments under Financial Accounting Standards
Board Statement of Financial Accounting Standards No. 52),
except that all effects of the application of Accounting
Principles Board Opinions Nos. 16 and 17 and related
interpretations and all charges related to the
Recapitalization shall be disregarded.
"Controlled Corporation EBITDA Amount" means, for
any Controlled Corporation securities of which have been
distributed in a Section 355 Transaction, the EBITDA of the
Controlled Corporation for the four full fiscal quarters of
the Issuer last preceding the date such Section 355
Transaction is effected.
"Corporate Trust Office" means the office of the
Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered,
which office is, at the date as of which this Indenture is
dated, located at 180 East Fifth Street, St. Paul, Minnesota
55101, Attention: Corporate Trust Department.
"Credit Agent" means Citibank, N.A., as Managing
Agent under the Credit Agreement, or any successor thereto;
provided that "Credit Agent" shall also mean any person
acting as managing agent (or in a similar capacity) under
any agreement pursuant to which the Credit Agreement is
refunded or refinanced if such person is designated as such
by each person that is at the time of such designation a
Credit Agent; and provided further that if at any time there
shall be more than one Credit Agent, then "Credit Agent"
shall mean each such Credit Agent, and any notice, consent
or waiver to be given by, action to be taken by, or notice
to be given to, the Credit Agent shall be given or taken by,
or given to, each such Credit Agent.
"Credit Agreement" means the Amended and Restated
Credit Agreement dated as of October 26, 1992 among the
Issuer, the lenders party thereto and Citibank, N.A., as
Managing Agent, including any and all related notes,
collateral and security documents, instruments and
agreements executed in connection therewith (including,
without limitation, all Loan Documents (as defined in such
Credit Agreement)) and all obligations of the Issuer and its
Subsidiaries incurred thereunder or in respect thereof, and
in each case as amended, supplemented, restructured or
otherwise modified, extended or renewed and each other
agreement pursuant to which any or all of the foregoing may
be refunded or refinanced, from time to time.
"Default" means any event that is, or after notice
or passage of time would be, an Event of Default.
"Disqualified Stock" means any capital stock that,
by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable), or upon the
happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder
thereof, in whole or in part, on or prior to the maturity
date of the Securities.
"DLJ" means Donaldson, Lufkin & Jenrette
Securities Corporation.
"DLJ Capital" means DLJ Capital Corporation.
"EBITDA" means, with respect to any person and its
consolidated Subsidiaries for a given period, the
Consolidated Net Income of such person for such period plus
(i) an amount equal to any net loss realized upon the sale
or other disposition of any Business Segment (to the extent
such loss was deducted in computing Consolidated Net
Income), (ii) any provision for taxes based on income or
profits deducted in computing Consolidated Net Income and
any provision for taxes utilized in computing net loss under
clause (i) hereof, (iii) consolidated interest expense
(including amortization of original issue discount and non-
cash interest payments, all net payments and receipts in
respect of Interest Rate Agreements and the interest
component of capital leases), and (iv) depreciation and
amortization (including amortization of goodwill, deferred
financing costs existing immediately after the closing of
the Equity Investment or incurred in connection with the
Recapitalization, and other intangibles) to the extent
required under generally accepted accounting principles, all
on a consolidated basis; provided that if, during such
period (A) such person or any of its Subsidiaries shall have
made any asset sales (other than, in the case of the Issuer
and its Subsidiaries, sales of the Capital Stock of or any
assets of Unrestricted Subsidiaries), EBITDA of such person
and its Subsidiaries for such period shall be reduced by an
amount equal to the EBITDA directly attributable to the
assets which are the subject of such asset sales for such
period and (B) such person or any of its Subsidiaries has
made any acquisition of assets or Capital Stock (occurring
by merger or otherwise), including, without limitation, any
acquisition of assets or Capital Stock occurring in
connection with the transaction causing a calculation to be
made hereunder, EBITDA of such person and its Subsidiaries
shall be calculated, excluding any expenses which in the
good faith estimate of management will be eliminated as a
result of such acquisition, on a pro forma basis as if such
acquisition of assets or Capital Stock (including the
incurrence of any Indebtedness in connection with any such
acquisition and the application of the proceeds thereof)
took place on the first day of such period; and provided,
further, that in the case of the Issuer, if the closing of
any aspect of the Recapitalization occurred during such
period, EBITDA of the Issuer and its Subsidiaries for such
period shall be calculated on a pro forma basis as if such
closing (including the incurrence of any Indebtedness in
connection with such closing and the application of the
proceeds thereof) took place on the first day of such
period.
"11.25% Debentures" means the 11.25% Senior
Subordinated Debentures Due 2004 of the Issuer in an
aggregate principal amount not to exceed $738,800,000.
"Equity Interests" means Capital Stock or
warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into or
exchangeable for Capital Stock).
"Equity Investment" means the purchase by
Associates of 100 million shares of FCI Common Stock and 75
million warrants to purchase FCI Common Stock on November
16, 1992.
"Event of Default" means any event or condition
specified as such in Section 4.1 which shall have continued
for the period of time, if any, therein designated.
"Excluded Properties" means each of (i) the
Issuer's food distribution and warehouse facility located in
Rancho Cucamonga, California and (ii) the Issuer's corporate
headquarters property in Spartanburg, South Carolina.
"Existing Indebtedness" means Indebtedness of the
Issuer or any subsidiary existing on the date hereof.
"FCI" means Flagstar Companies, Inc. (formerly TW
Holdings, Inc.), a Delaware corporation.
"FCI Common Stock" means the common stock, par
value $.50 per share, of FCI.
"Fixed Charge Coverage Ratio" means, with respect
to any person, for a given period, the ratio of the EBITDA
of such person for such period to the Consolidated Fixed
Charges of such person for such period.
"GTO" means Gollust, Tierney and Oliver, a New
Jersey general partnership, or Gollust, Tierney and Oliver
Incorporated, a New York corporation.
"GTO Fee" means an annual fee of $250,000 payable
to GTO or any of its affiliates for each of 1993 and 1994.
"Holder", "holder of Securities", "Securityholder"
or other similar terms means the registered holder of any
Security.
"Indebtedness" with respect to any person means at
any date, without duplication, (i) all obligations of such
person for borrowed money, (ii) all obligations of such
person evidenced by bonds, debentures, notes or other
similar instruments other than Interest Rate Agreements,
(iii) all reimbursement obligations and other liabilities of
such person with respect to letters of credit issued for
such person's account, (iv) all obligations of such person
to pay the deferred purchase price of property or services,
except accounts payable arising in the ordinary course of
business, (v) all obligations of such person as lessee in
respect of capital lease obligations under capital leases
and (vi) all obligations of others of a nature described in
any of clauses (i) through (v) above guaranteed by such
person; provided that in the case of clauses (i) through (v)
above, Indebtedness shall include only obligations reported
as liabilities in the financial statements of such person in
accordance with generally accepted accounting principles.
"Indenture" means this instrument as originally
executed and delivered or, if amended or supplemented as
herein provided, as so amended or supplemented.
"Indentures" means collectively this Indenture and
the indentures pursuant to which the New Senior Subordinated
Securities, the 11.25% Debentures, the 10 7/8% Notes and the
10% Debentures are issued.
"Interest Rate Agreement" means any interest rate
protection agreement, interest rate future, interest rate
option, interest rate swap, interest rate cap or other
interest rate hedge arrangement to or under which the Issuer
or any of its subsidiaries is or becomes a party or a
beneficiary.
"Investment" means any direct or indirect advance,
loan (other than advances to customers in the ordinary
course of business, which are recorded as accounts
receivable on the balance sheet of any person or its
subsidiaries) or other extension of credit or capital
contribution to (by means of any transfer of cash or other
property to others or any payment for property or services
for the account or use of others), or any purchase or
acquisition of capital stock, bonds, notes, debentures or
other securities issued by, any other person.
"Issuer" means (except as otherwise provided in
Article Five) Flagstar Corporation, a Delaware corporation,
and, subject to Article Eight, its successors and assigns.
"KKR" means Kohlberg Kravis Roberts & Co., a
Delaware limited partnership, or KKR Associates, a New York
limited partnership.
"Lien" means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or
encumbrance of any kind in respect of such asset, whether or
not filed, recorded or otherwise perfected under applicable
law (including any conditional sale or other title retention
agreement, any capital lease, any option or other agreement
to sell and any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction).
"Mortgage Financing" means the incurrence by the
Issuer or a Subsidiary of the Issuer of any Indebtedness
secured by a mortgage or other Lien on real property
acquired or improved by the Issuer or any Subsidiary of the
Issuer after the date hereof.
"Mortgage Financing Proceeds" means, with respect
to any Mortgage Financing, the aggregate amount of cash
proceeds received or receivable by the Issuer or any
Subsidiary of the Issuer in connection with such financing
after deducting therefrom brokerage commissions, legal fees,
finder's fees, closing costs and other expenses incidental
to such Mortgage Financing and the amount of taxes payable
in connection with or as a result of such transaction, to
the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash, actually
paid to a person that is not an Affiliate and are properly
attributable to such transaction or to the asset that is the
subject thereof.
"Mortgage Refinancing" means the incurrence by the
Issuer or a Subsidiary of the Issuer of any Indebtedness
secured by a mortgage or other Lien on real property subject
to a mortgage or other Lien existing on the date hereof or
created or incurred subsequent to the date hereof as
permitted hereby and owned by the Issuer or any Subsidiary
of the Issuer.
"Mortgage Refinancing Proceeds" means, with
respect to any Mortgage Refinancing, the aggregate amount of
cash proceeds received or receivable by the Issuer or any
Subsidiary of the Issuer in connection with such refinancing
after deducting therefrom the original mortgage amount of
the underlying Indebtedness refinanced therewith and
brokerage commissions, legal fees, finder's fees, closing
costs and other expenses incidental to such Mortgage
Refinancing and the amount of taxes payable in connection
with or as a result of such transaction, to the extent, but
only to the extent, that the amounts so deducted are, at the
time of receipt of such cash, actually paid to a person that
is not an Affiliate and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Net Income" of any person shall mean the net
income (loss) of such person, determined in accordance with
generally accepted accounting principles, excluding,
however, (i) any gain or loss, together with any related
provision for taxes on such gain or loss, realized upon the
sale or other disposition (including, without limitation,
dispositions pursuant to sale and leaseback transactions) of
a Business Segment, (ii) any charges arising as a result of
the Recapitalization, and (iii) any gain or loss realized
upon the sale or other disposition by such person of any
capital stock or marketable securities.
"Net Proceeds" with respect to any Asset Sale,
sale and leaseback transaction or sale or other disposition
of a Business Segment, means (i) cash (freely convertible
into U.S. dollars) received by the Issuer or any Subsidiary
from such transaction, after (a) provision for all income or
other taxes measured by or resulting from such transaction,
(b) payment of all brokerage commissions and other expenses
(including, without limitation, the payment of principal,
premium (if any) and interest on Indebtedness required
(other than pursuant to Section 3.13(a)) to be paid as a
result of such transaction) in connection with such
transaction and (c) deduction of appropriate amounts to be
provided by the Issuer as a reserve, in accordance with
generally accepted accounting principles, against any
liabilities associated with the asset disposed of in such
transaction and retained by the Issuer after such sale or
other disposition thereof, including, without limitation,
pension and other post-employment benefit liabilities and
liabilities related to environmental matters or against any
indemnification obligations associated with such transaction
and (ii) promissory notes received by the Issuer or any
Subsidiary in connection with such transaction upon the
liquidation or conversion of such notes into cash.
"New Senior Subordinated Securities" means the
11 3/8% Senior Subordinated Debentures Due 2003 of the
Issuer in an aggregate amount not to exceed $125,000,000.
"Obligations" means, with respect to any
Indebtedness or any Interest Rate Agreement, any principal,
premium, interest (including, without limitation, interest,
whether or not allowed, after the filing of a petition
initiating certain bankruptcy proceedings), penalties,
commissions, charges, expenses, fees, indemnifications,
reimbursements and other liabilities or amounts payable
under or in respect of the documentation governing such
Indebtedness or such Interest Rate Agreement.
"OECD" means the Organization for Economic
Cooperation and Development.
"Officers' Certificate" means a certificate signed
by the Chairman of the Board of Directors or the President
or any Vice President (whether or not designated by a number
or numbers or a word or words added before or after the
title "Vice President") and by the Treasurer or the
Secretary or any Assistant Secretary of the Issuer and
delivered to the Trustee. Each such certificate shall
comply with Section 314 of the Trust Indenture Act of 1939
and include the statements provided for in Section 10.5.
"Opinion of Counsel" means an opinion in writing
signed by legal counsel who may be an employee of or counsel
to the Issuer. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements
provided for in Section 10.5, if and to the extent required
hereby.
"Outstanding", when used with reference to
Securities, shall, subject to the provisions of Section 6.4,
mean, as of any particular time, all Securities
authenticated and delivered by the Trustee under this
Indenture, except
(a) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the
payment or redemption of which moneys in the necessary
amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the
Issuer) or shall have been set aside, segregated and
held in trust by the Issuer (if the Issuer shall act as
its own paying agent), provided that if such Securities
are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as
herein provided, or provision satisfactory to the
Trustee shall have been made for giving such notice;
and
(c) Securities in substitution for which other
Securities shall have been authenticated and delivered,
or which shall have been paid, pursuant to the terms of
Section 2.6 (unless proof satisfactory to the Trustee
is presented that any of such Securities is held by a
person in whose hands such Security is a legal, valid
and binding obligation of the Issuer).
"Permitted Investments" means (i) cash (including
major foreign currency or currency of a country in which the
Issuer or any of its Subsidiaries has operations) or Cash
Equivalents, (ii) investments that are in persons at least a
majority of whose revenues are derived from food service
operations, ancillary operations or related activities and
that have the purpose of furthering the food service
operations of the Issuer or any of its Subsidiaries, (iii)
advances to employees not in excess of $5,000,000 at any one
time outstanding, (iv) accounts receivable created or
acquired in the ordinary course of business, (v) obligations
or shares of stock received in connection with any good
faith settlement or bankruptcy proceeding involving a claim
relating to a Permitted Investment, (vi) evidences of
Indebtedness, obligations or other investments not exceeding
$5,000,000 in the aggregate held at any one time by the
Issuer or any of its Subsidiaries and (vii) currency swap
agreements and other similar agreements designed to hedge
against fluctuations in foreign exchange rates entered into
in the ordinary course of business in connection with the
operation of the business.
"Preferred Stock" means, with respect to any
person, any and all shares, interests, participations or
other equivalents (however designated) of such person's
preferred or preference stock whether now outstanding or
issued after the date of the Indenture.
"principal" wherever used with reference to the
Securities or any Security or any portion thereof, shall be
deemed to include "and premium, if any".
"Recapitalization" means the recapitalization of
FCI contemplated by the Stock and Warrant Purchase Agreement
dated as of August 11, 1992 between FCI and Associates.
"Remaining Section 355 Amount" means at any time
an amount equal to (i) 30% of the Specified Issuer EBITDA
less (ii) the sum of the Controlled Corporation EBITDA
Amounts for the Controlled Corporations in each Section 355
Transaction effected by the Issuer prior to such time.
"Responsible Officer" when used with respect to
the Trustee means the chairman of the board of directors,
any vice chairman of the board of directors, the chairman of
the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the
president, any vice president (whether or not designated by
numbers or words added before or after the title "vice
president"), the cashier, the secretary, the treasurer, any
trust officer, any assistant trust officer, any assistant
vice president, any assistant cashier, any assistant
secretary, any assistant treasurer, or any other officer or
assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at
the time shall be such officers, respectively, or to whom
any corporate trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Investments" means any investments in,
capital contributions, loans or advances to or purchases of
equity interests in, any person that is not a wholly owned
subsidiary, or other transfers of assets to Subsidiaries or
Affiliates that are not wholly owned (other than any such
other transfers of assets to Subsidiaries or Affiliates that
are not wholly owned in transactions the terms of which are
fair and reasonable to the transferor and are at least as
favorable as the terms that could be obtained by the
transferor in a comparable transaction made on an arm's
length basis between unaffiliated parties (as conclusively
determined, for any such transfer involving aggregate
consideration in excess of $5 million, by a majority of the
directors of the Issuer unaffiliated with such Subsidiary or
Affiliate or, if there are no such directors, by a majority
of the directors of the Issuer, and otherwise as
conclusively determined by the Issuer)), except in each case
for Permitted Investments and any such investments existing
on the date hereof.
"Section 355 Percentage" means, for the first
Section 355 Transaction effected after the date hereof, 30%,
and shall thereafter be subject to reduction as follows:
Immediately after the time at which any Section 355
Transaction is effected through a distribution of securities
of a Controlled Corporation pursuant to clause (7) of the
second paragraph of Section 3.9, the Section 355 Percentage
shall equal (i) the Section 355 Percentage immediately prior
to such time less (ii) the percentage of (x) the EBITDA of
the Issuer for the four full fiscal quarters of the Issuer
last preceding the date such Section 355 Transaction is
effected represented by (y) the EBITDA of such Controlled
Corporation for such period.
"Section 355 Transaction" means a transaction that
qualifies for tax-free treatment under Section 355 of the
Code, or any similar taxable transaction, any of which is
effected after the date hereof.
"Security" or "Securities" means any of the
10 3/4% Senior Notes Due 2001 authenticated and delivered
under this Indenture.
"Senior Indebtedness" means (i) all obligations of
the Issuer and its Subsidiaries now or hereafter existing
under or in respect of the Credit Agreement, the Securities
and the 10 7/8% Notes, whether for principal, interest
(including, without limitation, interest accruing after the
filing of a petition initiating any proceeding referred to
in Section 4.1(6) or Section 4.1(7) hereof, whether or not
such interest is an allowable claim under such proceeding),
penalties, commissions, charges, indemnifications,
liabilities, reimbursement obligations in respect of letters
of credit, fees, expenses or other amounts payable under or
in respect of the Credit Agreement and all obligations and
claims related thereto, (ii) all Obligations of the Issuer
in respect of Interest Rate Agreements and (iii) additional
Indebtedness permitted by Section 3.11(a), Section 3.11(b),
Section 3.11(c) or Section 3.11(e) hereof which is not
expressly by its terms subordinated to, or pari passu with,
the 11.25% Debentures and the New Senior Subordinated
Securities, and all Obligations and claims related thereto.
Notwithstanding anything to the contrary in the
foregoing, Senior Indebtedness shall not include (x) any
Indebtedness of the Issuer to any of its Subsidiaries or (y)
Indebtedness incurred for the purchase of goods or materials
or for services (other than services provided by the Credit
Agent in connection with the Credit Agreement or any other
party to an agreement evidencing Senior Indebtedness in
connection with such agreement) obtained in the ordinary
course of business. Senior Indebtedness under or in respect
of the Credit Agreement, the Securities and the 10 7/8%
Notes shall continue to constitute Senior Indebtedness for
all purposes of this Indenture notwithstanding that such
Senior Indebtedness or any obligations or claims in respect
thereof may be disallowed, avoided or subordinated pursuant
to any Bankruptcy Law or other applicable insolvency law or
equitable principles.
"Significant Subsidiary" means any Subsidiary of
the Issuer that would be a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X under the Securities
Act of 1933, as amended (the "Act"), and the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (as
such Regulation is in effect on the date of the Indenture)
(excluding, except for the purposes of determining an Event
of Default, subparagraph (c) of such definition).
"Specified Issuer EBITDA" means the EBITDA of the
Issuer for the four full fiscal quarters of the Issuer last
preceding the date of the first Section 355 Transaction
effected after the date hereof.
"Subsidiary" of any person means any entity of
which shares of the capital stock or other equity interests
(including partnership interests) entitled to cast at least
a majority of the votes that may be cast by all shares or
equity interests having ordinary voting power for the
election of directors or other governing body of such entity
is owned by such person directly and/or through one or more
Subsidiaries; provided that each Unrestricted Subsidiary
shall be excluded from the definition of Subsidiary.
"10% Debentures" means the 10% Convertible Junior
Subordinated Debentures Due 2014 of the Issuer in an
aggregate principal amount not to exceed $100,000,000.
"10 7/8% Notes" means the 10 7/8% Senior Notes Due
2002 of the Issuer in an aggregate principal amount not to
exceed $300,000,000.
"Trustee" means the entity identified as "Trustee"
in the first paragraph hereof and, subject to the provisions
of Article Five, shall also include any successor trustee.
"Trust Indenture Act of 1939" (except as otherwise
provided in Sections 7.1 and 7.2) means the Trust Indenture
Act of 1939 as in force at the date as of which this
Indenture was originally executed.
"Unrestricted Subsidiary" means (i) any subsidiary
of the Issuer which at the time of determination is an
Unrestricted Subsidiary (as designated by the Board of
Directors, as provided below) and (ii) any subsidiary of an
Unrestricted Subsidiary. The Board of Directors may
designate any subsidiary of the Issuer (including any
Subsidiary and any newly acquired or newly formed
subsidiary) to be an Unrestricted Subsidiary unless such
subsidiary owns any Capital Stock of, or owns, or holds any
Lien on, any property of, any Subsidiary of the Issuer
(other than any subsidiary of the subsidiary to be so
designated), provided that (a) any Unrestricted Subsidiary
must be an entity of which shares of the capital stock or
other equity interests (including partnership interests)
entitled to cast at least a majority of the votes that may
be cast by all shares or equity interests having ordinary
voting power for the election of directors or other
governing body are owned, directly or indirectly, by the
Issuer, (b) the Issuer certifies that such designation
complies with Section 3.9 and Section 3.17 and (c) each of
(I) the subsidiary to be so designated and (II) its
subsidiaries has not at the time of designation, and does
not thereafter, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable with respect
to any Indebtedness pursuant to which the lender has
recourse to any of the assets of the Issuer or any of its
Subsidiaries. The Board of Directors may designate any
Unrestricted Subsidiary to be a Subsidiary; provided that
immediately after giving effect to such designation, the
Issuer and its Subsidiaries could incur at least $1 of
additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 3.11(a) on a pro
forma basis taking into account such designation.
"Weighted Average Life to Maturity" means, when
applied to any Indebtedness at any date, the number of years
obtained by dividing (i) the then outstanding aggregate
principal amount of such Indebtedness into (ii) the total of
the product obtained by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or
other required payment of principal, including payment at
final maturity, in respect thereof, by (b) the number of
years (calculated to the nearest one-twelfth) which will
elapse between such date and the making of such payment.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SECURITIES.
SECTION 2.1 Authentication and Delivery of
Securities. Upon the execution and delivery of this
Indenture, or from time to time thereafter, Securities in an
aggregate principal amount not in excess of the amount
specified in the form of Security hereinabove recited
(except as otherwise provided in Section 2.6) may be
executed by the Issuer and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate
and deliver said Securities to or upon the written order of
the Issuer, signed by both (a) its Chairman of the Board of
Directors, or any Vice Chairman of the Board of Directors,
or its President or any Vice President (whether or not
designated by a number or numbers or a word or words added
before or after the title "Vice President") and (b) by its
Treasurer or any Assistant Treasurer without any further
action by the Issuer.
SECTION 2.2 Execution of Securities. The
Securities shall be signed on behalf of the Issuer by both
(a) its Chairman of the Board of Directors or any Vice
Chairman of the Board of Directors or its President or any
Vice President (whether or not designated by a number or
numbers or a word or words added before or after the title
"Vice President") and (b) by its Treasurer or any Assistant
Treasurer or its Secretary or any Assistant Secretary, under
its corporate seal which may, but need not, be attested.
Such signatures may be the manual or facsimile signatures of
the present or any future such officers. The seal of the
Issuer may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the
Securities. Typographical and other minor errors or defects
in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of any
Security which has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have
signed any of the Securities shall cease to be such officer
before the Security so signed shall be authenticated and
delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security
had not ceased to be such officer of the Issuer; and any
Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Issuer,
although at the date of the execution and delivery of this
Indenture any such person was not such officer.
SECTION 2.3 Certificate of Authentication. Only
such Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore
recited, executed by the Trustee by manual signature of one
of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any
purpose. Such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
SECTION 2.4 Form, Denomination and Date of
Securities; Payments of Interest. The Securities and the
Trustee's certificates of authentication shall be
substantially in the form recited above. The Securities
shall be issuable as registered securities without coupons
and in denominations provided for in the form of Security
above recited. The Securities shall be numbered, lettered,
or otherwise distinguished in such manner or in accordance
with such plans as the officers of the Issuer executing the
same may determine with the approval of the Trustee.
Any of the Securities may be issued with
appropriate insertions, omissions, substitutions and
variations, and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the
provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant
thereto, or with the rules of any securities market in which
the Securities are admitted to trading, or to conform to
general usage.
Each Security shall be dated the date of its
authentication, shall bear interest from the applicable date
and shall be payable on the dates and in the manner
specified on the face of the form of Security recited above.
The person in whose name any Security is
registered at the close of business on any record date with
respect to any interest payment date shall be entitled to
receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of
such Security subsequent to the record date and prior to
such interest payment date, except if and to the extent the
Issuer shall default in the payment of the interest due on
such interest payment date, in which case such defaulted
interest shall be paid to the persons in whose names
outstanding Securities are registered at the close of
business on a subsequent record date (which shall be not
less than five business days prior to the date of payment of
such defaulted interest) established by notice given by mail
by or on behalf of the Issuer to the holders of Securities
not less than 15 days preceding such subsequent record date.
The term "record date" as used with respect to any interest
payment date (except a date for payment of defaulted
interest) shall mean if such interest payment date is the
first day of a calendar month, the fifteenth day of the next
preceding calendar month and shall mean, if such interest
payment date is the fifteenth day of a calendar month, the
first day of such calendar month, whether or not such record
date is a business day. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
SECTION 2.5 Registration, Transfer and Exchange.
The Issuer will keep at each office or agency to be
maintained for the purpose as provided in Section 3.2 a
register or registers in which, subject to such reasonable
regulations as it may prescribe, it will register, and will
register the transfer of, Securities as in this Article
provided. Such register shall be in written form in the
English language or in any other form capable of being
converted into such form within a reasonable time. At all
reasonable times such register or registers shall be open
for inspection by the Trustee.
Upon due presentation for registration of transfer
of any Security at each such office or agency, the Issuer
shall execute and the Trustee shall authenticate and deliver
in the name of the transferee or transferees a new Security
or Securities in authorized denominations for a like
aggregate principal amount.
Any Security or Securities may be exchanged for a
Security or Securities in other authorized denominations, in
an equal aggregate principal amount. Securities to be
exchanged shall be surrendered at each office or agency to
be maintained by the Issuer for the purpose as provided in
Section 3.2, and the Issuer shall execute and the Trustee
shall authenticate and deliver in exchange therefor the
Security or Securities which the Securityholder making the
exchange shall be entitled to receive, bearing numbers not
contemporaneously outstanding.
All Securities presented for registration of
transfer, exchange, redemption or payment shall (if so
required by the Issuer or the Trustee) be duly endorsed by,
or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the holder or his attorney duly authorized
in writing.
The Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of
transfer of Securities. No service charge shall be made for
any such transaction.
The Issuer shall not be required to exchange or
register a transfer of (a) any Securities for a period of 15
days next preceding the first mailing of notice of
redemption of Securities to be redeemed, or (b) any
Securities selected, called or being called for redemption
except, in the case of any Security where public notice has
been given that such Security is to be redeemed in part, the
portion thereof not so to be redeemed.
All Securities issued upon any transfer or
exchange of Securities shall be valid obligations of the
Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Securities surrendered
upon such transfer or exchange.
SECTION 2.6 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities. In case any temporary or definitive
Security shall become mutilated, defaced or be apparently
destroyed, lost or stolen, the Issuer in its discretion may
execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver, a new
Security, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated
or defaced Security, or in lieu of and substitution for the
Security so apparently destroyed, lost or stolen. In every
case the applicant for a substitute Security shall furnish
to the Issuer and to the Trustee and any agent of the Issuer
or the Trustee such security or indemnity as may be required
by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft
evidence to their satisfaction of the apparent destruction,
loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the
Issuer 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. In case
any Security which has matured or is about to mature, or has
been called for redemption in full, shall become mutilated
or defaced or be apparently destroyed, lost or stolen, the
Issuer may, instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof
except in the case of a mutilated or defaced Security), if
the applicant for such payment shall furnish to the Issuer
and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may
require to save each of them harmless from all risks,
however remote, and, in every case of apparent destruction,
loss or theft, the applicant shall also furnish to the
Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the apparent
destruction, loss or theft of such Security and of the
ownership thereof.
Every substitute Security issued pursuant to the
provisions of this Section by virtue of the fact that any
Security is apparently destroyed, lost or stolen shall
constitute an additional contractual obligation of the
Issuer, whether or not the apparently destroyed, lost or
stolen Security shall be at any time enforceable by anyone
and shall be entitled to all the benefits of (but shall be
subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other
Securities duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express
condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced, or apparently
destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with
respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.7 Cancellation of Securities;
Destruction Thereof. All Securities surrendered for
payment, redemption, registration of transfer or exchange,
if surrendered to the Issuer or any agent of the Issuer or
the Trustee, shall be delivered to the Trustee for
cancellation or, if surrendered to the Trustee, shall be
cancelled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall destroy
cancelled Securities held by it and deliver a certificate of
destruction to the Issuer. If the Issuer shall acquire any
of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented
by such Securities unless and until the same are delivered
to the Trustee for cancellation.
SECTION 2.8 Temporary Securities. Pending the
preparation of definitive Securities, the Issuer may execute
and the Trustee shall authenticate and deliver temporary
Securities (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the
Trustee). Temporary Securities shall be issuable as
registered Securities without coupons, of any authorized
denomination, and substantially in the form of the
definitive Securities but with such omissions, insertions
and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the
concurrence of the Trustee. Temporary Securities may
contain such reference to any provisions of this Indenture
as may be appropriate. Every temporary Security shall be
executed by the Issuer and be authenticated by the Trustee
upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Securities.
Without unreasonable delay the Issuer shall execute and
shall furnish definitive Securities and thereupon temporary
Securities may be surrendered in exchange therefor without
charge at each office or agency to be maintained by the
Issuer for the purpose pursuant to Section 3.2, and the
Trustee shall authenticate and deliver in exchange for such
temporary Securities a like aggregate principal amount of
definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall be entitled to the
same benefits under this Indenture as definitive Securities.
ARTICLE THREE
COVENANTS
OF
THE ISSUER AND THE TRUSTEE.
SECTION 3.1 Payment of Principal and Interest.
The Issuer covenants and agrees that it will duly and
punctually pay or cause to be paid the principal of, and
interest on, each of the Securities at the place or places,
at the respective times and in the manner provided in the
Securities. Each installment of interest on the Securities
may, at the option of the Issuer, be paid by wire transfer
or by check mailed to the holders of Securities entitled
thereto as they shall appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long
as any of the Securities remain outstanding, the Issuer will
maintain the following: (a) an office or agency where the
Securities may be presented for payment, (b) an office or
agency where the Securities may be presented for
registration of transfer and for exchange as in this
Indenture provided and (c) an office or agency where notices
and demands to or upon the Issuer in respect of the
Securities or of this Indenture may be served. The Issuer
will give to the Trustee written notice of the location of
any such office or agency and of any change of location
thereof. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee as the office or
agency for each such purpose. In case the Issuer shall fail
to maintain any such office or agency or shall fail to give
such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices
may be served at the Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in
Office of Trustee. The Issuer, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in
the manner provided in Section 5.9, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer
shall appoint a paying agent other than the Trustee, it will
cause such paying agent to execute and deliver to the
Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as
such agent for the payment of the principal of or
interest on the Securities (whether such sums have been
paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the holders of
the Securities or of the Trustee,
(b) that it will give the Trustee notice of any
failure by the Issuer (or by any other obligor on the
Securities) to make any payment of the principal of or
interest on the Securities when the same shall be due
and payable, and
(c) that it will pay any such sums so held in
trust by it to the Trustee upon the Trustee's written
request at any time during the continuance of the
failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of
the principal of or interest on the Securities, deposit with
the paying agent a sum sufficient to pay such principal or
interest, and (unless such paying agent is the Trustee) the
Issuer will promptly notify the Trustee of any failure to
take such action.
If the Issuer shall act as its own paying agent,
it will, on or before each due date of the principal of or
interest on the Securities, set aside, segregate and hold in
trust for the benefit of the holders of the Securities a sum
sufficient to pay such principal or interest so becoming
due. The Issuer will promptly notify the Trustee of any
failure to take such action.
Anything in this Section to the contrary
notwithstanding, the Issuer may at any time, for the purpose
of obtaining a satisfaction and discharge of this Indenture
or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust by the Issuer or any paying
agent hereunder, as required by this Section, such sums to
be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary
notwithstanding, the agreement to hold sums in trust as
provided in this Section are subject to the provisions of
Sections 9.3 and 9.4.
SECTION 3.5 Certificates to Trustee. The Issuer
will, so long as any of the Securities are outstanding:
(a) deliver to the Trustee, forthwith upon
becoming aware of any default or defaults in the
performance of any covenant, agreement or condition
contained in this Indenture (including notice of any
event of default which with the giving of notice and
lapse of time would become an Event of Default under
Section 4.1 hereof), an Officers' Certificate
specifying such default or defaults; and
(b) deliver to the Trustee within 120 days after
the end of each fiscal year of the Issuer beginning
with the fiscal year ending December 31, 1993, an
Officers' Certificate in compliance with Section
314(a)(4) of the Trust Indenture Act of 1939.
SECTION 3.6 Securityholder Lists. If and so long
as the Trustee shall not be the Security registrar, the
Issuer will furnish or cause to be furnished to the Trustee
a list in such form as the Trustee may reasonably require of
the names and addresses of the holders of the Securities
pursuant to Section 312 of the Trust Indenture Act (a)
semi-annually not more than 15 days after each record date
for the payment of semi-annual interest on the Securities,
as hereinabove specified, as of such record date, and (b) at
such other times as the Trustee may request in writing,
within thirty days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time
such information is furnished.
SECTION 3.7 Reports by the Issuer. The Issuer
covenants:
(a) to file with the Commission and, within 15
days after the Issuer is required to file the same with
the Commission, with the Trustee copies of the annual
reports and of the information, documents, and other
reports which the Issuer may be required to file with
the Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act and, if the Issuer is not required
to file such information, documents, or reports with
the Commission, to file with the Commission and the
Trustee the same such information, documents or reports
as if the Issuer were so subject;
(b) to file with the Trustee and the Commission,
in accordance with rules and regulations prescribed
from time to time by the Commission, such additional
information, documents, and reports with respect to
compliance by the Issuer with the conditions and
covenants provided for in this Indenture as may be
required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of
Securities, within 30 days after the filing thereof
with the Trustee, any information, documents and
reports required to be filed by the Issuer with the
Trustee pursuant to (a) and (b) of this Section 3.7.
SECTION 3.8 Reports by the Trustee. Within 60
days after May 15 of each year beginning May 15, 1994, for
so long as any Securities are outstanding hereunder, the
Trustee shall transmit by mail to all Securityholders, as
their names and addresses appear in the registry books, in
the manner and to the extent provided in Section 313(c) of
the Trust Indenture Act of 1939, a brief report dated as of
such May 15 if required by and in compliance with Section
313(a) of the Trust Indenture Act of 1939.
SECTION 3.9 Limitation on Restricted Payments.
Subject to the other provisions of this Section 3.9, the
Issuer shall not and shall not permit any of its
Subsidiaries to, directly or indirectly:
(a)declare or pay any dividend or make any
distribution on account of the Issuer's or any
Subsidiary's capital stock or other Equity Interests
(other than (i) dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the
Issuer or such Subsidiary and (ii) dividends or
distributions payable by a Subsidiary so long as, in
the case of any dividend or distribution payable on any
class or series of securities issued by a Subsidiary
other than a wholly owned Subsidiary, the Issuer or a
Subsidiary of the Issuer receives at least its pro rata
basis share of such dividend or distribution in
accordance with its Equity Interest in such class or
series of securities); or
(b)purchase, redeem or otherwise acquire or
retire for value any Equity Interests of the Issuer or
any Subsidiary of the Issuer (other than any such
Equity Interests owned by the Issuer or any Subsidiary
of the Issuer); or
(c)voluntarily prepay Indebtedness that is
subordinated to the Securities other than in connection
with any (i) refinancing of such Indebtedness
specifically permitted pursuant to Section 3.11(c) or
Section 3.11(e) hereof, (ii) Indebtedness between the
Issuer and a Subsidiary of the Issuer or between
Subsidiaries of the Issuer or (iii) Mortgage Financing
or Mortgage Refinancing; or
(d)make any Restricted Investments (other than
an Investment in any Unrestricted Subsidiary)
(all of the foregoing dividends, distributions,
purchases, redemptions or other acquisitions,
retirements, prepayments or Restricted Investments set
forth in clauses (a) through (d) above being
collectively referred to as "Restricted Payments"), if
at the time of such Restricted Payment:
(i)a Default or Event of Default shall have
occurred and be continuing or shall occur as a
consequence thereof,
(ii) immediately after such Restricted
Payment and after giving effect thereto on a pro
forma basis, the Issuer would not be able to incur
$1 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in
Section 3.11(a), or
(iii) such Restricted Payment, together with
(A) the aggregate of all other Restricted Payments
(in each case valued, where other than cash, at
their fair market value as of the date such
Restricted Payments are made) made after the date
hereof and (B) the amount by which the aggregate
of all then outstanding Investments in
Unrestricted Subsidiaries exceeds $75 million, is
greater than the sum of: (v) 50% of the aggregate
Consolidated Net Income of the Issuer for the
period (taken as one accounting period) from the
beginning of the first quarter immediately after
the date hereof to the end of the Issuer's most
recently ended fiscal quarter at the time of such
Restricted Payment (provided that if Consolidated
Net Income for such period is less than zero, then
minus 100% of the amount of such loss) plus (w)
50% of the aggregate amortization of goodwill for
the period specified in (v) above, plus (x) 100%
of the aggregate net cash proceeds and the fair
market value of marketable securities received by
the Issuer from the issue or sale, after the date
hereof, of capital stock of the Issuer (other than
capital stock issued and sold to a Subsidiary of
the Issuer and other than Disqualified Stock), or
any Indebtedness or other security convertible
into any such capital stock that has been so
converted plus (y) 100% of the aggregate amounts
contributed to the capital of the Issuer plus (z)
100% of the aggregate amounts received in cash and
the fair market value of marketable securities
(other than Restricted Investments) received from
(I) the sale or other disposition of Restricted
Investments made by the Issuer and its
Subsidiaries or (II) the sale of the stock of an
Unrestricted Subsidiary or the sale of all or
substantially all of the assets of an Unrestricted
Subsidiary to the extent that a liquidating
dividend is paid to the Issuer or any Subsidiary
from the proceeds of such sale.
For purposes of clause (iii) above, the fair market value of
property other than cash may be conclusively determined in
good faith by the Board of Directors.
The provisions of this Section 3.9 shall not
prohibit:
(1) the payment of any dividend within 60 days
after the date of declaration thereof, if at said date
of declaration such payment would have complied with
the provisions hereof;
(2)(A) the retirement of any shares of the Capital
Stock of the Issuer (the "Retired Capital Stock") in
exchange for, or out of the net proceeds of the
substantially concurrent sale (other than to a
Subsidiary of the Issuer) of, other shares of the
Capital Stock of the Issuer (the "Refunding Capital
Stock"), other than any Disqualified Stock, and (B) if
immediately prior to such retirement of such Retired
Capital Stock the declaration and payment of dividends
thereon was permitted under clause (5) of this
paragraph, the declaration and payment of dividends on
the Refunding Capital Stock in an aggregate amount per
year no greater than the aggregate amount of dividends
per year that was declarable and payable on such
Retired Capital Stock immediately prior to such
retirement;
(3) the payment of dividends or the making of
distributions for the purpose of (A) financing the
repurchase, redemption or other acquisition or
retirement for value of any Equity Interests in FCI
issued to present and former members of management of
the Issuer and its subsidiaries pursuant to
subscription and option agreements in effect on the
date hereof and Equity Interests in FCI issued to
future members of management pursuant to subscription
agreements executed subsequent to the date hereof,
containing provisions for the repurchase of such Equity
Interests upon death, disability or termination of
employment of such persons which are substantially
identical to those contained in the subscription
agreements in effect on the date hereof, provided that
the amount of such dividends or distributions, after
the date hereof, in the aggregate will not exceed the
sum of (I) $30 million plus (II) the cash proceeds from
any reissuance of such Equity Interests by FCI to
members of management of the Issuer and its
subsidiaries, to the extent such proceeds are
contributed to the Issuer, (B) enabling FCI to pay
accounting and legal fees and expenses and any other
fees and expenses of FCI (such as financing and
underwriting costs) incurred in the ordinary course of
business as a holding company for the Issuer and (C)
financing the repurchase by FCI of FCI Common Stock
from GTO and its affiliates or DLJ and its affiliates,
provided that the aggregate amount of such dividends or
distributions made pursuant to this clause (C), after
the date hereof, will not exceed $50 million;
(4) the repurchase, redemption or other
acquisition or retirement for value of Indebtedness of
the Issuer which is subordinated in right of payment to
the Securities in exchange for or with the proceeds of
the issuance of shares of the Issuer's Equity Interests
(other than Disqualified Stock);
(5) the declaration and payment of dividends to
holders of any class or series of the Issuer's
Preferred Stock (other than Disqualified Stock) issued
after the date hereof (including, without limitation,
the declaration and payment of dividends on Refunding
Capital Stock in excess of the dividends declarable and
payable thereon pursuant to clause (2) of this
paragraph), provided that at the time of such issuance
the Fixed Charge Coverage Ratio of the Issuer, after
giving effect to such issuance, would be greater than
1.25 to 1;
(6) the redemption, repurchase or retirement of
any Indebtedness that is subordinated to the Securities
(A) with the proceeds of, or in exchange for,
Indebtedness incurred pursuant to Section 3.11(c) or
Section 3.11(e) or (B) if, after giving effect to such
redemption, repurchase or retirement, the Issuer could
incur at least $1 of additional Indebtedness pursuant
to the Fixed Charge Coverage Ratio test set forth in
Section 3.11(a);
(7) the distribution to stockholders of securities
of a corporation controlled by the Issuer (a
"Controlled Corporation") in a Section 355 Transaction,
but only if (a) the EBITDA of the Controlled
Corporation for the four full fiscal quarters of the
Issuer last preceding the date the Section 355
Transaction is effected is no greater than (I) in the
case of the first Section 355 Transaction effected
after the date hereof, a percentage of the Specified
Issuer EBITDA equal to the Section 355 Percentage at
the time such first Section 355 Transaction is effected
and (II) in the case of any subsequent Section 355
Transaction, the lesser of (A) the Remaining Section
355 Amount at the time of such Section 355 Transaction
and (B) the Section 355 Percentage at the time such
Section 355 Transaction is effected multiplied by the
EBITDA of the Issuer for the four full fiscal quarters
of the Issuer last preceding the date such Section 355
Transaction is effected, (b) the Issuer's Fixed Charge
Coverage Ratio for its four full fiscal quarters last
preceding the date the Section 355 Transaction is
effected would have been at least 2:1, determined on a
pro forma basis as if the Section 355 Transaction had
been effected at the beginning of such four-quarter
period and (c) the ratio of the Indebtedness of the
Issuer and its Subsidiaries on a consolidated basis
immediately after the Section 355 Transaction to EBITDA
of the Issuer for its four full fiscal quarters last
preceding the date the Section 355 Transaction is
effected, determined on a pro forma basis as if such
transaction had occurred at the beginning of such four
quarter period, would be no greater than the ratio of
the Indebtedness of the Issuer and its Subsidiaries on
a consolidated basis immediately prior to the Section
355 Transaction to EBITDA of the Issuer for its four
full fiscal quarters last preceding the date the
Section 355 Transaction is effected;
(8) the declaration and payment, following the
first public offering of FCI Common Stock to occur
after the date hereof, of dividends on the common stock
of the Issuer of up to 6% per annum of the net proceeds
received by FCI in such public offering and any
subsequent public offerings of FCI Common Stock;
(9) any redemption, repurchase or repayment of any
outstanding Obligations under the 10% Debentures,
including any premium or fee incurred in connection
therewith;
(10) payments by the Issuer or any Subsidiary of
the Issuer in respect of its obligations pursuant to
any tax sharing agreement with FCI, the Issuer or any
Subsidiary of FCI; or
(11) the purchase, redemption or other acquisition
or retirement for value of Equity Interests of any
Subsidiary of the Issuer (other than any such Equity
Interests owned by the Issuer or any Subsidiary of the
Issuer) in an amount of (a) up to $5 million for the
first year following the date hereof and (b) for each
year thereafter, up to $5 million plus the unused
portion of the amount permitted to be expended for such
purpose in all preceding years;
provided that in determining the aggregate amount expended
for Restricted Payments in accordance with clause (iii) of
the first paragraph of this Section 3.9, (i) no amounts
expended under clauses (2)(A), (3)(B), (4), (6), (7), (9)
and (10) of this paragraph shall be included, (ii) 100% of
the amounts expended under clauses (2)(B), (3)(A), (3)(C),
(5), (8) and (11) of this paragraph shall be included, and
(iii) 100% of the amounts expended under clause (1), to the
extent not included under subclauses (i) or (ii) of this
proviso, shall be included.
SECTION 3.10 Limitation on Dividends and Other
Payment Restrictions Affecting Subsidiaries. The Issuer
shall not, and shall not permit any of its Subsidiaries
(other than unconsolidated Subsidiaries) to, directly or
indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction
on the ability of any such Subsidiary to (a) pay dividends
or make any other distributions on its capital stock or any
other interest or participation in, or measured by, its
profits, owned by the Issuer or any Subsidiary of the
Issuer, or pay any Indebtedness owed to, the Issuer or a
Subsidiary of the Issuer, (b) make loans or advances to the
Issuer or a Subsidiary of the Issuer or (c) transfer any of
its properties or assets to the Issuer or a Subsidiary of
the Issuer, except in each case for such encumbrances or
restrictions existing under or by reason of (i) applicable
law, (ii) the Indentures, (iii) the Credit Agreement or any
other agreement entered into in connection therewith or as
contemplated thereby, (iv) customary provisions restricting
subletting or assignment of any lease governing a leasehold
interest of the Issuer or a Subsidiary of the Issuer, (v)
any instrument governing Indebtedness of a Person acquired
by the Issuer or any Subsidiary of the Issuer at the time of
such acquisition, (vi) Existing Indebtedness, or additional
Indebtedness in an aggregate principal amount of up to
$250,000,000 at any one time outstanding or other
contractual obligation of the Issuer or any of its
Subsidiaries existing on the date hereof or any amendment,
modification, renewal, extension, replacement, refinancing
or refunding, provided, that the restrictions contained in
any such amendment, modification, renewal, extension,
replacement, refinancing or refunding are no less favorable
in all material respects to the Holders, (vii) any Mortgage
Financing or Mortgage Refinancing, (viii) any Permitted
Investment or (ix) contracts for the sale of assets.
SECTION 3.11 Limitation on Additional
Indebtedness and Issuance of Disqualified Stock.
(a)Subject to the other provisions of this
Section 3.11,
(x) the Issuer shall not and shall not permit any
of its Subsidiaries to, directly or indirectly, create,
incur, issue, assume or guarantee any Indebtedness
(other than Indebtedness between the Issuer and a
Subsidiary of the Issuer or between Subsidiaries of the
Issuer, or guarantees by any Subsidiary of Indebtedness
of a Subsidiary or the Issuer) and
(y) the Issuer shall not issue any Disqualified
Stock,
unless such Indebtedness or Disqualified Stock is either
Acquisition Indebtedness or is created, incurred, issued,
assumed or guaranteed by the Issuer and not a Subsidiary of
the Issuer and the Issuer's Fixed Charge Coverage Ratio for
its four full fiscal quarters last preceding the date such
additional Indebtedness is created, incurred, assumed or
guaranteed, or such additional stock is issued, would have
been (I) if such date is prior to November 1, 1994, at least
1.75:1 and (II) if such date is on or after November 1,
1994, at least 2:1, determined in each case on a pro forma
basis (including a pro forma application of the net proceeds
of such Indebtedness or such issuance of stock) as if the
additional Indebtedness had been created, incurred, assumed
or guaranteed, or such additional stock had been issued, at
the beginning of such four-quarter period; provided,
however, that the limitations of this Section 3.11(a) shall
not apply to the incurrence by the Issuer or any of its
Subsidiaries of (A) any Indebtedness pursuant to the Credit
Agreement; provided, however, that the principal amount of
such Indebtedness incurred pursuant to the Credit Agreement
for the purposes of this Clause (A) shall not exceed the
aggregate amount of the commitments under the Credit
Agreement on the date hereof; and (B) any Indebtedness
represented by the Securities or the New Senior Subordinated
Securities.
(b)The limitations of Section 3.11(a) hereof
notwithstanding, the Issuer or any Subsidiary may create,
incur, issue, assume or guarantee Indebtedness pursuant to
the Credit Agreement or otherwise (i) in connection with or
arising out of Mortgage Financings relating to real property
acquired after the date hereof or improvements on such
property, Mortgage Refinancings or sale and lease-back
transactions, provided the Mortgage Financing Proceeds,
Mortgage Refinancing Proceeds (excluding any Mortgage
Refinancing Proceeds received in connection with any
refinancing of any Indebtedness secured by a mortgage or
Lien on either or both of the Excluded Properties) or Net
Proceeds, as the case may be, incurred, assumed or created
in connection therewith are used to pay any outstanding
Senior Indebtedness, (ii) constituting purchase money
obligations for property acquired in the ordinary course of
business or other similar financing transactions (including,
without limitation, in connection with Mortgage Financings),
provided that in the case of Indebtedness exceeding $2
million for any such obligation or transaction, such
Indebtedness exists at the date of the purchase or
transaction or is created within 180 days thereafter, (iii)
in connection with capital expenditures (iv) constituting
capital lease obligations, (v) constituting reimbursement
obligations with respect to letters of credit, including,
without limitation, letters of credit in respect of workers'
compensation claims, issued for the account of the Issuer or
a Subsidiary in the ordinary course of its business or other
Indebtedness with respect to reimbursement type obligations
regarding workers' compensation claims, (vi) constituting
additional Indebtedness in an aggregate principal amount of
up to $250,000,000 at any one time outstanding, whether
incurred under the Credit Agreement or otherwise, (vii)
constituting Indebtedness secured by either or both of the
Excluded Properties and (viii) constituting Existing
Indebtedness and permitted refinancings thereof in
accordance with Section 3.11(c) or Section 3.11(e).
(c)The limitations of Section 3.11(a) hereof
notwithstanding, the Issuer or any Subsidiary may create,
incur, issue, assume or guarantee any Indebtedness which
serves to refund, refinance or restructure its Existing
Indebtedness or any other Indebtedness incurred as permitted
under this Indenture or any Indebtedness issued to so
refund, refinance or restructure such Indebtedness,
including additional Indebtedness incurred to pay premiums
and fees in connection therewith (the "Refinancing
Indebtedness"), prior to its respective maturity; provided,
however, that such Refinancing Indebtedness (i) bears an
interest rate per annum which is equal to or less than the
interest rate per annum then payable under such Indebtedness
being refunded or refinanced (calculated in accordance with
any formula set forth in the documents evidencing any such
Indebtedness) unless such Refinancing Indebtedness is
incurred, created or assumed within twelve months of the
scheduled maturity of the Indebtedness being refinanced,
(ii) has a Weighted Average Life to Maturity at the time
such Refinancing Indebtedness is incurred which is not less
than the remaining Weighted Average Life to Maturity of such
Indebtedness being refunded or refinanced, and (iii) to the
extent such Refinancing Indebtedness refinances Indebtedness
subordinated to the Securities, such Refinancing
Indebtedness is subordinated to the Securities at least to
the same extent as the Indebtedness being refinanced or
refunded; provided, further, however, that clauses (i), (ii)
and (iii) above shall not apply to any refunding or
refinancing of any Senior Indebtedness.
(d)The foregoing limitations notwithstanding,
any unconsolidated Subsidiary of the Issuer created after
the date of this Indenture may create, incur, issue, assume,
guarantee or otherwise become liable with respect to any
additional Indebtedness, provided that such Indebtedness is
nonrecourse to the Issuer and its consolidated Subsidiaries,
and the Issuer and its consolidated Subsidiaries have no
liability with respect to such additional Indebtedness.
(e) The foregoing limitations notwithstanding,
the Issuer or any Subsidiary may create, incur, issue,
assume or guarantee any Indebtedness which serves to refund,
refinance or restructure the 10% Debentures, including any
premium or fee incurred in connection therewith.
SECTION 3.12 Limitation on Transactions with
Affiliates. The Issuer shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, enter into
any transaction (including, without limitation, the
purchase, sale, lease or exchange of any property or the
rendering of any service) involving aggregate consideration
in excess of $5,000,000 for any one transaction with any
Affiliate, except for (a) transactions (including any
investments or loans or advances by or to any Affiliate) in
good faith the terms of which are fair and reasonable to the
Issuer or such Subsidiary, as the case may be, and are at
least as favorable as the terms which could be obtained by
the Issuer or such Subsidiary, as the case may be, in a
comparable transaction made on an arm's length basis between
unaffiliated parties (in each case as conclusively
determined by a majority of the directors of the Issuer
unaffiliated with such Affiliate or, if there are no such
directors, as conclusively determined by a majority of the
Board of Directors), (b) payments by the Issuer or any of
its Subsidiaries to KKR or any Affiliate thereof made
pursuant to any financial advisory, financing, underwriting
or placement agreement, (c) transactions in which the Issuer
or any of its Subsidiaries, as the case may be, delivers to
the Holders a written opinion of a nationally recognized
investment banking firm stating that such transaction is
fair to the Issuer or such Subsidiary from a financial point
of view, (d) transactions between the Issuer and its
Subsidiaries or between Subsidiaries of the Issuer which are
not otherwise prohibited under Section 3.9 of this
Indenture, (e) payments or loans to employees or
consultants pursuant to employment or consultancy contracts
which are approved by the Board of Directors in good faith,
(f) payments to FCI which are not otherwise prohibited by
Section 3.9 of this Indenture and (g) the payment by the
Issuer of management fees to KKR and/or its affiliates and
the payment by the Issuer of the GTO fee.
SECTION 3.13 Sale of Assets.
(a)Neither the Issuer nor any of its
Subsidiaries (other than unconsolidated Subsidiaries) shall
(A) (I) sell, lease, convey or otherwise dispose of in any
transaction or group of transactions that are part of a
common plan all or substantially all of the assets or
capital stock of any Asset Segment (provided that the sale,
lease, conveyance or other disposition of all or
substantially all of the Issuer's assets shall not be
subject to this Section 3.13 but shall be governed by the
provisions of Section 8.1 hereof) or (II) issue or sell
equity securities of any Asset Segment (each of the
foregoing, an "Asset Sale") or (B) sell, lease, convey or
otherwise dispose of any Business Segment, unless in each
case the Issuer shall apply the Net Proceeds from such Asset
Sale or such sale, lease, conveyance or other disposition of
a Business Segment to one or more of the following in such
combination as the Issuer may choose: (i) an investment in
another asset or business in the same line of business as,
or a line of business similar to that of, the line of
business of the Issuer and its Subsidiaries and such
investment occurs within 366 days of such Asset Sale or such
sale, lease, conveyance or other disposition of a Business
Segment, (ii) a Net Proceeds Offer (as defined below)
expiring within 366 days of such Asset Sale or such sale,
lease, conveyance or other disposition of a Business Segment
or (iii) the purchase, redemption or other prepayment or
repayment of outstanding Senior Indebtedness within 366 days
of such Asset Sale or such sale, lease, conveyance or other
disposition of a Business Segment; provided, however, if the
net amount not invested pursuant to clause (i) above or
applied pursuant to clause (iii) above is less than
$15,000,000 the Issuer shall not be further obligated to
offer to redeem Securities pursuant to clause (ii) above.
Notwithstanding the foregoing, (i) the receipt of all
proceeds of insurance paid on account of the loss of or
damage to any Business Segment and awards of compensation
for any such Business Segment taken by condemnation or
eminent domain which result in Net Proceeds to the Issuer
and its Subsidiaries of $50 million or more (excluding
proceeds to be used for replacement of such Business
Segment, provided the Trustee has received notice from the
Issuer, within 90 days of such receipt, of its intention to
use such proceeds for such purpose) will be deemed an "Asset
Sale" and (ii) Permitted Investments and sales, leases,
conveyances or other dispositions of assets by the Issuer or
any Subsidiary to the Issuer or any wholly owned Subsidiary
of the Issuer will not be deemed an "Asset Sale" or a sale
or other disposition of a Business Segment.
(b)For purposes of subsection (ii) of clause (a)
of this Section, the Issuer shall apply the Net Proceeds of
the Asset Sale or the sale, lease, conveyance or other
disposition of a Business Segment to make a tender offer in
accordance with applicable law (a "Net Proceeds Offer") to
repurchase the Securities at a price not less than 100% of
the principal amount of the Securities plus accrued and
unpaid interest thereon. Any Net Proceeds Offer shall be
made by the Issuer only if and to the extent permitted
under, and subject to prior compliance with, the terms of
any agreement governing Senior Indebtedness. If on the date
any Net Proceeds Offer is commenced securities of the Issuer
ranking pari passu in right of payment with the Securities
are outstanding and the terms of such securities provide
that an offer to repurchase such securities similar to the
Net Proceeds Offer is to be made with respect thereto, then
the Net Proceeds Offer shall be made concurrently with such
other offer, and securities of each issue shall be accepted
on a pro rata basis, in proportion to the principal or face
amount, as the case may be, of securities of each issue
which the holders thereof elect to have redeemed. After the
last date on which holders of the Securities are permitted
to tender their Securities in a Net Proceeds Offer, the
Issuer shall not be restricted under this Section 3.13 as to
its use of any Net Proceeds available to make such Net
Proceeds Offer (up to the amount of Net Proceeds that would
have been used to redeem Securities assuming 100% acceptance
of the Net Proceeds Offer) but not used to redeem Securities
pursuant thereto.
(c)Notwithstanding any other provision hereof to
the contrary, for a period of 120 days after the last date
on which holders of the Securities are permitted to elect to
have their Securities redeemed in the Net Proceeds Offer,
the Issuer may use any Net Proceeds available to make such
Net Proceeds Offer but not used to redeem Securities
pursuant thereto to purchase, redeem or otherwise acquire or
retire for value any securities of the Issuer ranking junior
in right of payment to the Securities at a price, stated as
a percentage of the principal or face amount of such junior
securities, not greater than the price, stated as a
percentage of the principal amount of the Securities,
offered in the Net Proceeds Offer; provided that if the Net
Proceeds Offer is for a principal amount (the "Net Proceeds
Offer Amount") of the Securities less than the aggregate
principal amount of the Securities then outstanding, then
the Net Proceeds available for use by the Issuer for such a
purchase, redemption or other acquisition or retirement for
value of junior securities shall not exceed the Net Proceeds
Offer Amount.
(d)An offer to redeem Securities pursuant to
this Section 3.13 shall be made pursuant to the provisions
of Section 11.5 hereof. Simultaneously with the
notification of such offer of redemption to the Trustee as
required by Section 11.5 hereof, the Issuer shall provide
the Trustee with an Officers' Certificate setting forth the
information required to be included therein by Section 11.5
hereof and, in addition, setting forth the calculations used
in determining the amount of Net Proceeds to be applied to
the redemption of Securities.
(e)In the event that the Issuer shall make any
payment of Net Proceeds to the Trustee which, to the actual
knowledge of a trust officer of the Trustee, should properly
have been made to holders or to the Representative of the
holders of any Senior Indebtedness for the prepayment or
repayment of such Senior Indebtedness pursuant to the
provisions of this Section 3.13, such payment shall be held
by the Trustee for the benefit of, and, upon written request
of the holders of such Senior Indebtedness or their
Representative, shall be paid forthwith over and delivered
to, the holders of such Senior Indebtedness or their
Representative for application in accordance with the
provisions of this Section 3.13. With respect to the
holders of such Senior Indebtedness, the Trustee undertakes
to perform only such obligations on the part of the Trustee
as are specifically set forth in this Section 3.13(e), and
no implied covenants or obligations with respect to the
holders of such Senior Indebtedness shall be read into this
Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of such
Senior Indebtedness. If Net Proceeds are received by
Holders which, pursuant to the provisions of this Section
3.13, should properly have been received by the holders of
such Senior Indebtedness or their Representative for the
prepayment or repayment of such Senior Indebtedness, the
Holders who receive such Net Proceeds shall hold such Net
Proceeds in trust for, and pay such Net Proceeds over to,
the holders of such Senior Indebtedness or their
Representative.
(f) Notwithstanding the foregoing, Permitted
Investments and sales, leases, conveyances or other
dispositions of assets by the Issuer or any Subsidiary to
the Issuer or any wholly owned Subsidiary of the Issuer
shall not be deemed an Asset Sale or a sale or other
disposition of a Business Segment.
SECTION 3.14 Corporate Existence. Subject to
Article 8 hereof and other than as permitted by the Credit
Agreement, the Issuer shall do or cause to be done all
things necessary to preserve and keep in full force and
effect its corporate existence and the corporate,
partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational
documents as they may be from time to time amended of the
Issuer and each such Subsidiary and the rights (charter and
statutory), governmental licenses and governmental
franchises of the Issuer and its Subsidiaries; provided,
however, that the Issuer shall not be required to preserve
any such right, license or franchise, or the corporate,
partnership or other existence of any such Subsidiary, if
the preservation thereof is no longer necessary in the
conduct of the business of the Issuer and its Subsidiaries
taken as a whole and the loss thereof is not adverse in any
material respect to the Holders (which determination, if
made in good faith by the Board of Directors, shall be
conclusive).
SECTION 3.15 Limitation on Liens. (a) The
Issuer shall not, and shall not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist
any Lien on any asset now owned or hereafter acquired by the
Issuer or any such Subsidiary, except:
(i) Liens existing on the date hereof, Liens
securing or arising under or in connection with any
Indebtedness of the Issuer not expressly by its terms
subordinate or junior in right of payment to any other
Indebtedness of the Issuer (including, without
limitation, Liens permitted by or required pursuant to
the Credit Agreement), Liens arising under or in
connection with Section 9.1 hereof and Liens relating
to judgments to the extent such judgments do not give
rise to an Event of Default pursuant to Section 4.1(5)
hereof;
(ii) Liens for taxes or assessments and similar
charges either (x) not delinquent or (y) contested in
good faith by appropriate proceedings and as to which
the Issuer or a Subsidiary shall have set aside on its
books such reserves as may be required pursuant to
generally accepted accounting principles;
(iii) Liens incurred or pledges and deposits in
connection with workers' compensation, unemployment
insurance and other social security benefits, or
securing performance bids, tenders, leases, contracts
(other than for the repayment of borrowed money),
statutory obligations, progress payments, surety and
appeal bonds and other obligations of like nature,
incurred in the ordinary course of business;
(iv) Liens imposed by law, such as mechanics',
carriers', warehousemen's, materialmen's and vendors'
Liens, incurred in good faith in the ordinary course of
business;
(v) zoning restrictions, easements, licenses,
covenants, reservations, restrictions on the use of
real property or minor irregularities of title incident
thereto which do not in the aggregate materially
detract from the value of the property or assets of the
Issuer and its Subsidiaries, taken as a whole, or
materially impair the operation of the business of the
Issuer and its Subsidiaries, taken as a whole;
(vi) Liens created by Subsidiaries to secure
Indebtedness of such Subsidiaries to the Issuer or its
Subsidiaries;
(vii) pledges of or Liens on raw materials or on
manufactured products as security for any drafts or
bills of exchange in connection with the importation of
such raw materials or manufactured products in the
ordinary course of business;
(viii) a Lien on any assets (x) securing
Indebtedness incurred or assumed pursuant to Section
3.11(b) hereof for the purpose of financing all or any
part of the cost of acquiring such asset or
construction thereof or thereon or (y) existing on
assets or businesses at the time of the acquisition
thereof;
(ix) the Lien granted to the Trustee pursuant to
Section 5.6 hereof and any substantially equivalent
Lien granted to the respective trustees under the
indentures for other debt securities of the issuer;
(x) Liens arising in connection with any
Mortgage Financing or Mortgage Refinancing by the
Issuer or any of its Subsidiaries;
(xi) Liens securing reimbursement obligations
with respect to letters of credit issued for the
account of the Issuer or any of its Subsidiaries in the
ordinary course of business;
(xii) any Lien on either or both of the Excluded
Properties;
(xiii) Liens securing an interest of a landlord in
real property leases;
(xiv) all other Liens incurred in the ordinary
course of business; provided that the aggregate amount
of Indebtedness secured by such Liens shall not exceed
$5,000,000 at any one time outstanding; or
(xv) Liens created in connection with the
refinancing of any Indebtedness secured by Liens
permitted to be incurred or to exist pursuant to the
foregoing clauses; provided, however, that no
additional assets are encumbered by such Liens in
connection with such refinancing, unless permitted by
clause (i) above or Section 3.15(b).
(b) Notwithstanding the provisions of paragraph
(a) above, the Issuer or any Subsidiary may create or assume
any Lien upon any of its properties or assets, whether now
owned or hereafter acquired, if the Issuer makes or causes
to be made effective provision whereby the Securities will
be equally and ratably secured with any and all other
Indebtedness secured by such Lien as long as any such other
Indebtedness shall be so secured, provided that if such Lien
ceases to exist, such equal and ratable Lien shall thereupon
automatically cease to exist.
SECTION 3.16 Issuer to Cause Certain Subsidiaries
to Become Guarantors. The Issuer shall not permit any of
its Subsidiaries to guarantee the payment of any
Indebtedness of the Issuer that is expressly by its terms
subordinate or junior in right of payment to any other
Indebtedness of the Issuer (a "Subordinated Indebtedness
Guarantee") unless (i) such Subsidiary executes and delivers
a supplemental indenture evidencing its guarantee of the
Issuer's Obligations hereunder and under the Securities on a
substantially similar basis (the "Securities Guarantee") and
(ii) the Securities Guarantee is senior in right of payment
to such Subordinated Indebtedness Guarantee to the same
extent as the Securities are senior in right of payment to
such junior Indebtedness of the Issuer; provided that if
such Subordinated Indebtedness Guarantee ceases to exist for
any reason, then the Securities Guarantee shall thereupon
automatically cease to exist.
SECTION 3.17 Investments in Unrestricted
Subsidiaries. The Issuer will not, and will not permit any
of its Subsidiaries to, directly or indirectly, make any
Investment in any Unrestricted Subsidiary unless (i) the
amount of such Investment does not exceed the amount then
permitted to be used to make a Restricted Payment pursuant
to clause (iii) of the first paragraph of Section 3.9 and
(ii) immediately after such Investment, and after giving
effect thereto on a pro forma basis deducting from net
income the amount of any Investment the Issuer or any
Subsidiary of the Issuer has made in an Unrestricted
Subsidiary during the four full fiscal quarters last
preceding the date of such Investment, the Issuer and its
Subsidiaries would be able to incur $1 of additional
Indebtedness pursuant to the Fixed Charge Coverage Ratio
test set forth in Section 3.11(a). Notwithstanding clause
(i) and (ii) of this Section or any other provisions hereof
to the contrary, the Issuer and its Subsidiaries shall be
permitted to make Investments in Unrestricted Subsidiaries
in an aggregate amount not to exceed $75 million at any one
time outstanding. The amount by which the aggregate of all
Investments in Unrestricted Subsidiaries exceeds $75 million
shall be counted in determining the permissible amount of
Restricted Payments pursuant to clause (iii) of the first
paragraph of Section 3.9. The Issuer will not permit any
Unrestricted Subsidiary to become a Subsidiary except
pursuant to the last sentence of the definition of
Unrestricted Subsidiary set forth in Section 1.1.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 4.1 Events of Default. An "Event of
Default" occurs if:
(1)the Issuer defaults in the payment of
interest on any Security when the same becomes due and
payable and the Default continues for a period of 30
days;
(2)the Issuer defaults in the payment of the
principal of any Security when the same becomes due and
payable at maturity, upon redemption or otherwise;
(3)the Issuer fails to comply with any of its
other agreements or covenants in, or any other
provisions of, the Securities or this Indenture and the
Default continues for the period and after the notice
specified in this Section 4.1;
(4)a default occurs under any mortgage,
indenture or instrument under which there may be issued
or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Issuer or any of
its Subsidiaries (or the payment of which is guaranteed
by the Issuer or any of its Subsidiaries) other than
(i) Indebtedness of the Issuer or any Subsidiary of the
Issuer to the Issuer or any Subsidiary of the Issuer or
(ii) Indebtedness permitted pursuant to Section 3.11(d)
hereof, whether such Indebtedness or guarantee now
exists or shall be created hereafter, if (a) either (x)
such default results from the failure to pay principal
upon the final maturity of such Indebtedness (after the
expiration of any applicable grace period) or (y) as a
result of such default the maturity of such
Indebtedness has been accelerated prior to its final
maturity, (b) the principal amount of such
Indebtedness, together with the principal amount of any
such Indebtedness with respect to which the principal
amount remains unpaid upon its final maturity (after
the expiration of any applicable grace period), or the
maturity of which has been so accelerated, aggregates
$30,000,000 or more and (c) such default does not
result from compliance with any applicable law or any
court order or governmental decree to which the Issuer
or any of its Subsidiaries is subject;
(5)a final judgment or final judgments for the
payment of money are entered by a court or courts of
competent jurisdiction against the Issuer or any of its
Subsidiaries and such judgment or judgments remain
undischarged for a period (during which execution shall
not be effectively stayed) of 60 days, provided that
the aggregate of all such judgments (net of amounts
covered by insurance, treating any deductibles, self-
insurance or retention as not so covered) exceeds
$10,000,000;
(6)the Issuer or any Significant Subsidiary of
the Issuer pursuant to or within the meaning of any
Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for
relief against it in an involuntary case,
(c) consents to the appointment of a
Custodian of it or for all or substantially all of
its property, or
(d) makes a general assignment for the
benefit of its creditors; or
(7)a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(a)is for relief against the Issuer or any
Significant Subsidiary of the Issuer in an
involuntary case,
(b)appoints a Custodian of the Issuer or
any Significant Subsidiary of the Issuer or for
all or substantially all of its property, or
(c)orders the liquidation of the Issuer or
any Significant Subsidiary of the Issuer,
and the order or decree remains unstayed and in effect
for 60 days.
The term "Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any
Bankruptcy Law.
An Event of Default shall not be deemed to have
occurred under clause (4) or (5) until the Issuer shall have
received written notice from the Trustee or the Holders of
at least 30% in principal amount of the then outstanding
Securities. A Default under clause (3) is not an Event of
Default until the Trustee notifies the Issuer, or the
Holders of at least 30% in principal amount of the then
outstanding Securities notify the Issuer and the Trustee, of
the Default and the Issuer does not cure the Default within
30 days after receipt of the notice. The notice must
specify the Default, demand that it be remedied and state
that the notice is a "Notice of Default".
In the case of any Event of Default pursuant to
the provisions of this Section 4.1 occurring by reason of
any willful action (or inaction) taken (or not taken) by or
on behalf of the Issuer with the intention of avoiding
payment of the premium which the Issuer would have to pay if
the Issuer then had elected to redeem the Securities
pursuant to Section 11.1, an equivalent premium shall also
become and be immediately due and payable to the extent
permitted by law, anything in this Indenture or in the
Securities contained to the contrary notwithstanding.
SECTION 4.2 Acceleration. If an Event of Default
(other than an Event of Default specified in clause (6) or
(7) of Section 4.1) occurs and is continuing, the Trustee
may, by written notice to the Issuer, or the Holders of at
least 30% (or 25% in the case of an Event of Default
specified in Section 4.1(1) or 4.1(2)) in principal amount
of the then outstanding Securities may, by written notice to
the Issuer and the Trustee, and the Trustee shall, upon the
request of such Holders, declare the unpaid principal of and
any accrued but unpaid interest on all the Securities to be
due and payable. Upon such declaration the principal and
interest shall be due and payable immediately; provided,
however, that if any Senior Indebtedness is outstanding
pursuant to the Credit Agreement, upon a declaration of
acceleration, such principal and interest shall be due and
payable upon the earlier of (x) the day that is five
Business Days after the provision to the Issuer and the
Credit Agent of such written notice, unless such Event of
Default is cured or waived prior to such date and (y) the
date of acceleration of any Senior Indebtedness under the
Credit Agreement. In the event of a declaration of
acceleration because an Event of Default specified in
Section 4.1(4) has occurred and is continuing, such
declaration of acceleration shall be automatically annulled
if such payment default is cured or waived or the holders of
the Indebtedness which is the subject of such Event of
Default have rescinded their declaration of acceleration in
respect of such Indebtedness within 60 days thereof and the
Trustee has received written notice of such cure, waiver or
rescission and no other Event of Default under Section
4.1(4) has occurred and is continuing with respect to which
60 days have elapsed since the declaration of acceleration
of the Indebtedness which is the subject of such other event
of default (without rescission of the declaration of
acceleration of such Indebtedness). If an Event of Default
specified in clause (6) or (7) of Section 4.1 occurs, the
unpaid principal of and any accrued but unpaid interest on
all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder. The Holders
of a majority in principal amount of the then outstanding
Securities by written notice to the Trustee may rescind an
acceleration and its consequences if the rescission would
not conflict with any judgment or decree and if all existing
Events of Default (except nonpayment of principal or
interest that has become due solely because of the
acceleration) have been cured or waived. No such rescission
shall affect any subsequent Default or Event of Default or
impair any right consequent thereto.
SECTION 4.3 Other Remedies. If an Event of
Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of or
interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce
any of them in the proceeding. A delay or omission by the
Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the
Event of Default. Except as set forth in Section 2.6
hereof, all remedies are cumulative to the extent permitted
by law.
SECTION 4.4 Waiver of Defaults. Subject to
Section 7.2 hereof, the Holders of a majority in principal
amount of the then outstanding Securities by notice to the
Trustee may waive any past Default or Event of Default and
its consequences except a continuing Default or Event of
Default in the payment of the principal of or interest on
any Security. Upon any such waiver, such Default or Event
of Default shall cease to exist and together with 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 4.5 Control by Majority. The Holders of
a majority in principal amount of the then outstanding
Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it.
However, the Trustee may (i) refuse to follow any direction
that conflicts with law or this Indenture, that the Trustee
reasonably determines may be unduly prejudicial to the
rights of other Holders or that may subject the Trustee to
personal liability or (ii) take any other action that it
deems proper that is not inconsistent with such decision.
The Trustee shall be entitled to indemnification reasonably
satisfactory to it against losses or expenses caused by the
taking or not taking of such action.
SECTION 4.6 Limitation on Suits. A Holder may
pursue a remedy with respect to this Indenture or the
Securities only if:
(1) the Holder gives to the Trustee written
notice of a continuing Event of Default;
(2)the Holders of at least 30% (or 25% in the
case of an Event of Default specified in Section 4.1(1)
or 4.2(2) hereof) in principal amount of the then
outstanding Securities make a written request to the
Trustee to pursue the remedy;
(3)such Holder or Holders offer and, if
requested, provide, to the Trustee indemnity
satisfactory to the Trustee against any loss, liability
or expense;
(4)the Trustee does not comply with the request
within 60 days after receipt of the request and the
offer and, if requested, the provision of indemnity;
and
(5)during such 60-day period the Holders of a
majority in principal amount of the then outstanding
Securities do not give the Trustee a direction which,
in the opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over
another Holder.
SECTION 4.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and
interest on the Security, on or after the respective due
dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent
of the Holder.
SECTION 4.8 Collection Suit by Trustee. If an
Event of Default specified in Section 4.1(1) or (2) occurs
and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust
against the Issuer for the whole amount of principal and
interest remaining unpaid on the Securities and interest on
overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 4.9 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel) and the Holders allowed in any judicial proceedings
relative to the Issuer (or any other obligor upon the
Securities), its creditors or its property and shall be
entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any
such claims and any custodian in any such judicial
proceeding is hereby authorized by each Holder 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 to it for the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 5.6 hereof. To
the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee
under Section 5.6 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out
of, any and all distributions, dividends, money, securities
and other properties which the Holders may be entitled to
receive in such proceeding whether in liquidation or under
any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the
Securities or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any
such proceeding. If the Trustee does not file a proper
claim or proof of debt in the form required in any such
proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the Credit Agent
shall have the right to file and is hereby authorized to
file an appropriate claim for and on behalf of the Holders.
SECTION 4.10 Priorities. If the Trustee collects
any money pursuant to this Article, it shall pay out the
money in the following order:
First: to the Trustee, its agents and attorneys
for amounts due under Section 5.6, including payment of
all compensation, expense and liabilities incurred, and
all advances made, by the Trustee and the costs and
expenses of collection;
Second: to the Holders for amounts due and unpaid
on the Securities for principal and interest, ratably,
without preference or priority of any kind, according
to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Issuer.
The Trustee may fix a record date and payment date
for any payment to Holders.
SECTION 4.11 Undertaking for Costs. In any suit
for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action
taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 4.7, or a
suit by Holders of more than 10% in principal amount of the
then outstanding Securities.
ARTICLE FIVE
CONCERNING THE TRUSTEE.
SECTION 5.1 Duties and Responsibilities of the
Trustee; During Default; Prior to Default. The Trustee,
prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been
cured or waived) the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful
misconduct, except that
(a) prior to the occurrence of an Event of
Default and after the curing or waiving of all such
Events of Default which may have occurred:
(i) the duties and obligations of the
Trustee shall be determined solely by the
express provisions of this Indenture, and the
Trustee shall not be liable except for the
performance of such duties and obligations as
are specifically set forth in this Indenture,
and no implied covenants or obligations shall
be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the
part of the Trustee, the Trustee may
conclusively rely, as to the truth of the
statements and the correctness of the
opinions expressed therein, upon any
statements, certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but in
the case of any such statements, certificates
or opinions which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not
they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error
of judgment made in good faith by a responsible officer
or responsible officers of the Trustee, unless it shall
be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the
holders of not less than a majority in principal amount
of the Securities at the time outstanding relating to
the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under
this Indenture.
None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any
of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate
indemnity against such liability is not reasonably assured
to it.
This Section 5.1 is in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In
furtherance of and subject to the Trust Indenture Act of
1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected
in acting or refraining from acting upon any
resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note,
coupon, security or other paper or document believed by
it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of
the Issuer mentioned herein shall be sufficiently
evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant
secretary of the Issuer;
(c) the Trustee may consult with counsel and any
advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action
taken, suffered or omitted to be taken by it hereunder
in good faith and in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by
this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall
have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any
action taken or omitted by it in good faith and
believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of
Default hereunder and after the curing or waiving of
all Events of Default, 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, consent,
order, approval, appraisal, bond, debenture, note,
coupon, security, or other paper or document unless
requested in writing so to do by the holders of not
less than a majority in aggregate principal amount of
the Securities then outstanding; provided that, if the
payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable
indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of
every such examination shall be paid by the Issuer or,
if paid by the Trustee or any predecessor trustee,
shall be repaid by the Issuer upon demand; and
(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 not
regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the
part of any such agent or attorney appointed with due
care by it hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds
Thereof. The recitals contained herein and in the
Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the
Issuer, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this
Indenture or of the Securities or as to the adequacy of any
disclosure document used in connection with the sale of the
Securities. The Trustee shall not be accountable for the
use or application by the Issuer of any of the Securities or
of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold
Securities; Collections, etc. The Trustee or any agent of
the Issuer or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities with
the same rights it would have if it were not the Trustee or
such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the
Issuer with the same rights it would have if it were not the
Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to
the provisions of Section 9.4 hereof, all moneys received by
the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were
received, but need not be segregated from other funds except
to the extent required by mandatory provisions of law.
Neither the Trustee nor any agent of the Issuer or the
Trustee shall be under any liability for interest on any
moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of
Trustee and Its Prior Claim. The Issuer covenants and
agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable compensation (which
shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) and the
Issuer covenants and agrees to pay or reimburse the Trustee
and each predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the
provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in
its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Issuer
also covenants to indemnify the Trustee and each predecessor
Trustee 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 Indenture or the trusts
hereunder and its duties hereunder, including the costs and
expenses of defending itself against or investigating any
claim of liability in the premises. The obligations of the
Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the
Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the
benefit of the holders of particular Securities, and the
Securities are hereby subordinated to such senior claim. If
the Trustee incurs expenses or renders services after an
Event of Default specified in clause (6) or (7) of Section
4.1 occurs, such expenses and the compensation for such
services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 5.7 Right of Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 5.1 and 5.2, whenever
in the administration of the trusts of this Indenture the
Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering or
omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively
proved and established by an Officers' Certificate delivered
to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon
the faith thereof.
SECTION 5.8 Persons Eligible for Appointment as
Trustee. The Trustee hereunder shall at all times be a
corporation having a combined capital and surplus of at
least $5,000,000, and which is eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act
of 1939. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of
a Federal, State or District of Columbia supervising or
examining authority, then for the purposes of this Section,
the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
SECTION 5.9 Resignation and Removal; Appointment
of Successor Trustee. (a) The Trustee may at any time
resign by giving written notice of resignation to the Issuer
and by mailing notice thereof by first-class mail to holders
of Securities at their last addresses as they shall appear
on the Security register. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor
trustee by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which
instrument shall be delivered to the resigning Trustee and
one copy to the successor trustee. If no successor trustee
shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of
resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide
holder of a Security or Securities for at least six months
may, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following
shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act
of 1939, after written request therefor by the Issuer
or by any Securityholder who has been a bona fide
holder of a Security or Securities for at least six
months; or
(ii) the Trustee shall cease to be eligible in
accordance with the provisions of Section 5.8 and shall
fail to resign after written request therefor by the
Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator 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, the Issuer may remove the Trustee
and appoint a successor trustee by written instrument, in
duplicate, executed by order of the Board of Directors of
the Issuer, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor
trustee, or, subject to Section 315(e) of the Trust
Indenture Act of 1939, any Securityholder who has been a
bona fide holder of a Security or Securities for at least
six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate
principal amount of the Securities at the time outstanding
may at any time remove the Trustee and appoint a successor
trustee by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Issuer the
evidence provided for in Section 6.1 of the action in that
regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee and
any appointment of a successor trustee pursuant to any of
the provisions of this Section 5.9 shall become effective
upon acceptance of appointment by the successor trustee as
provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by
Successor Trustee. Any successor trustee appointed as
provided in Section 5.9 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument
accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with
all rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written
request of the Issuer or of the successor trustee, upon
payment of its charges then unpaid, the trustee ceasing to
act shall, subject to Section 9.4, pay over to the successor
trustee all moneys at the time held by it hereunder and
shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee,
the Issuer shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to
such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior
claim upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the
provisions of Section 5.6.
Upon acceptance of appointment by a successor
trustee as provided in this Section 5.10, the Issuer shall
mail notice thereof by first-class mail to the holders of
Securities at their last addresses as they shall appear in
the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined
with the notice called for by Section 5.9. If the Issuer
fails to mail such notice within 10 days after acceptance of
appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the
Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or
Succession to Business of Trustee. 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 the
corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided that such
corporation shall be eligible under the provisions of
Section 5.8, without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any of
the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and
deliver such Securities so authenticated; and, in case at
that time any of the Securities shall not have been
authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in
all such cases such certificate shall have the full force
which it is anywhere in the Securities or in this Indenture
provided that the certificate of the Trustee shall have;
provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall
apply only to its successor or successors by merger,
conversion or consolidation.
SECTION 5.12 Indenture Not Creating Potential
Conflicting Interests for the Trustee. The following
indenture is hereby specifically described for the purposes
of Section 310(b) of the Trust Indenture Act of 1939: the
indenture dated as of November 16, 1992 between the Issuer
and First Trust National Association, as trustee, relating
to the 10 7/8% Notes.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS.
SECTION 6.1 Evidence of Action Taken by
Securityholders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Securityholders
may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such
Securityholders 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. Proof of
execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 5.1 and 5.2) conclusive
in favor of the Trustee and the Issuer, if made in the
manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and
of Holding of Securities; Record Date. Subject to Sections
5.1 and 5.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The holding of Securities
shall be proved by the Security register or by a certificate
of the registrar thereof. The Issuer may set a record date
for purposes of determining the identity of holders of
Securities entitled to vote or consent to any action
referred to in Section 6.1, which record date may be set at
any time or from time to time by notice to the Trustee, for
any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than five
days prior to the proposed date of such vote or consent, and
thereafter, notwithstanding any other provisions hereof,
only holders of Securities of record on such record date
shall be entitled to so vote or give such consent or to
withdraw such vote or consent.
SECTION 6.3 Holders to Be Treated as Owners. The
Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the person in whose name any
Security shall be registered upon the Security register as
the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation
of ownership or other writing thereon) for the purpose of
receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the
Issuer nor the Trustee nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his
order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability
for moneys payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the holders of the
requisite aggregate principal amount of Securities have
concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer or any
other obligor on the Securities or by any person directly or
indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor
on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination,
except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction,
consent or waiver only Securities which the Trustee knows
are so owned shall be so disregarded. Securities 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 Securities and that the pledgee is not the Issuer or
any other obligor upon the Securities or any person directly
or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer or any other
obligor on the Securities. In case of a dispute as to such
right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance
with such advice. Upon request of the Trustee, the Issuer
shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any,
known by the Issuer to be owned or held by or for the
account of any of the above-described persons; and, subject
to Sections 5.1 and 5.2, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of
the facts therein set forth and of the fact that all
Securities not listed therein are outstanding for the
purpose of any such determination.
SECTION 6.5 Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the
Trustee, as provided in Section 6.1, of the taking of any
action by the holders of the percentage in aggregate
principal amount of the Securities specified in this
Indenture in connection with such action, any holder of a
Security the certificate number of which is shown by the
evidence to be included among the certificate numbers of the
Securities the holders of which have consented to such
action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this
Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the
holder of any Security shall be conclusive and binding upon
such holder and upon all future holders and owners of such
Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Security.
Any action taken by the holders of the percentage in
aggregate principal amount of the Securities specified in
this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the
holders of all the Securities.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
SECTION 7.1 Supplemental Indentures Without
Consent of Securityholders. The Issuer, when authorized by
a resolution of its Board of Directors, and the Trustee may
from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the
following purposes:
(a) to evidence the succession of another
corporation to the Issuer, or successive successions,
and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(b) to add to the covenants of the Issuer such
further covenants, restrictions, conditions or
provisions as its Board of Directors and the Trustee
shall consider to be for the protection of the holders
of Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any such
additional covenants, restrictions, conditions or
provisions an Event of Default permitting the
enforcement of all or any of the several remedies
provided in this Indenture as herein set forth;
provided, that in respect of any such additional
covenant, restriction, condition or provision such
supplemental indenture may provide for a particular
period of grace after default (which period may be
shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate
enforcement upon such an Event of Default or may limit
the remedies available to the Trustee upon such an
Event of Default or may limit the right of the holders
of a majority in aggregate principal amount of the
Securities to waive such an Event of Default;
(c) to cure any ambiguity or to correct or
supplement any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained herein
or in any supplemental indenture; or to make such other
provisions in regard to matters or questions arising
under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary
or desirable and which shall not materially and
adversely affect the interests of the holders of the
Securities; and
(d) to provide for the issuance under this
Indenture of Securities in coupon form (including
Securities registrable as to principal only) and to
provide for exchangeability of such Securities with
Securities issued hereunder in fully registered form,
and to make all appropriate changes for such purpose.
The Trustee is hereby authorized to join in the
execution of any such supplemental indenture, to make any
further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer,
assignment, mortgage or pledge of any property thereunder,
but the Trustee 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.
Any supplemental indenture authorized by the
provisions of this Section may be executed without the
consent of the holders of any of the Securities at the time
outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent
of Securityholders. With the consent (evidenced as provided
in Article Six) of the holders of not less than a majority
in aggregate principal amount of the Securities at the time
outstanding, the Issuer, when authorized by a resolution of
its Board of Directors, and the Trustee may, from time to
time and at any time, 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 any supplemental
indenture or of modifying in any manner the rights of the
holders of the Securities; provided, that no such
supplemental indenture shall (a) extend the final maturity
of any Security, or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest
thereon, or reduce the premium, if any, payable thereon, or
reduce any amount payable on redemption thereof, or impair
or affect the right of any Securityholder to institute suit
for the payment thereof, or waive a default in the payment
of principal of, premium, if any, or interest on any
Security, change the currency of payment of principal of,
premium, if any, or interest on any Security, or modify any
provision of this Indenture with respect to the priority of
the Securities in right of payment without the consent of
the holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities, the consent of the
holders of which is required for any such supplemental
indenture, without the consent of the holders of all
Securities then outstanding.
Upon the request of the Issuer, accompanied by a
copy of a resolution of the Board of Directors certified by
the Secretary or an Assistant Secretary of the Issuer
authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence
of the consent of Securityholders and other documents, if
any, required by Section 6.1, the Trustee shall join with
the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee's own
rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the
provisions of this Section, the Issuer shall mail a notice
thereof by first-class mail to the holders of Securities at
their addresses as they shall appear on the registry books
of the Issuer, setting forth in general terms the substance
of such supplemental indenture. Any failure of the Issuer
to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture.
Upon the execution of any supplemental indenture pursuant to
the provisions hereof, this Indenture shall be and be deemed
to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee,
the Issuer and the holders of Securities shall thereafter be
determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the
terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee.
The Trustee, subject to the provisions of Sections 5.1 and
5.2, may receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such supplemental
indenture complies with the applicable provisions of this
Indenture.
SECTION 7.5 Notation on Securities in Respect of
Supplemental Indentures. Securities authenticated and
delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee as to any matter
provided for by such supplemental indenture or as to any
action taken at any such meeting. If the Issuer or the
Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained
in any such supplemental indenture may be prepared by the
Issuer, authenticated by the Trustee and delivered in
exchange for the Securities then outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 8.1 When Issuer May Merge, etc. The
Issuer shall not consolidate or merge with or into, or sell,
transfer, lease or convey all or substantially all of its
assets to, any person unless:
(1)the person formed by or surviving any
such consolidation or merger (if other than the
Issuer), or to which such sale, transfer, lease or
conveyance shall have been made, is a corporation
organized and existing under the laws of the
United States, any state thereof or the District
of Columbia;
(2)the corporation formed by or surviving
any such consolidation or merger (if other than
the Issuer), or to which such sale, transfer,
lease or conveyance shall have been made, assumes
by supplemental indenture in a form reasonably
satisfactory to the Trustee all the obligations of
the Issuer under the Securities and this
Indenture;
(3)immediately after the transaction no
Default or Event of Default exists;
(4)the Issuer or any corporation formed by
or surviving any such consolidation or merger, or
to which such sale, transfer, lease or conveyance
shall have been made, shall have an Adjusted
Consolidated Net Worth (immediately after the
transaction but prior to any purchase accounting
adjustments resulting from the transaction) equal
to or greater than the Adjusted Consolidated Net
Worth of the Issuer immediately preceding the
transaction; provided, however, that this clause
(4) shall not apply to any transaction where the
consideration consists solely of common stock or
other Equity Interests of the Issuer or any
surviving corporation and any liabilities of such
other person are not assumed by and are
specifically non-recourse to the Issuer or such
surviving corporation; and
(5)after giving effect to such transaction
and immediately thereafter, the Issuer or any
corporation formed by or surviving any such
consolidation or merger, or to which such sale,
transfer, lease or conveyance shall have been
made, shall be permitted to incur at least $1.00
of additional Indebtedness pursuant to Section
3.11(a), provided that, if the Fixed Charge
Coverage Ratio of the Issuer immediately prior to
such transaction is within the range set forth in
Column A below, then the pro forma Fixed Charge
Coverage Ratio of the Issuer or the surviving
entity, as the case may be, immediately after such
transaction, shall be at least equal to the lesser
of (1) the ratio determined by multiplying the
percentage set forth in column (B) below by the
Fixed Charge Coverage Ratio of the Issuer prior to
such transaction and (2) the ratio set forth in
column (C) below:
(A) (B) (C)
1.11:1 to 1.99:1 90%1.5:1
2.00:1 to 2.99:1 80%2.1:1
3.00:1 to 3.99:1 70%2.4:1
4.00:1 or more 60%2.5:1
and provided, further, that if, immediately after
giving effect to such transaction on a pro forma
basis, the Fixed Charge Coverage Ratio of the
Issuer or the surviving entity, as the case may
be, is 2.5:1 or more, the calculation in the
preceding proviso shall be inapplicable and such
transaction shall be deemed to have complied with
the requirements of this clause (5).
The Issuer shall deliver to the Trustee prior to
the consummation of the proposed transaction an Officers'
Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and such
supplemental Indenture comply with this Section 8.1. The
Trustee shall be entitled to rely conclusively upon such
Officers' Certificate and Opinion of Counsel.
SECTION 8.2 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, transfer,
lease, conveyance or other disposition of all or
substantially all of the assets of the Issuer in accordance
with Section 8.1, the successor corporation formed by such
consolidation or into or with which the Issuer is merged or
to which such sale, lease, conveyance or other disposition
is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under this
Indenture with the same effect as if such successor person
has been named as the Issuer herein and thereafter, except
in the case of a lease, the predecessor corporation shall be
relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS; DEFEASANCE.
SECTION 9.1 Satisfaction and Discharge of
Indenture. If at any time (a) the Issuer shall have paid or
caused to be paid the principal of and interest on all the
Securities outstanding hereunder, as and when the same shall
have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities
theretofore authenticated (other than any Securities which
shall have been destroyed, lost or stolen and which shall
have been replaced or paid as provided in Section 2.6) or
(c) all Securities not theretofore cancelled or delivered to
the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable
within 1 year or are to be called for redemption within 1
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption, and the Issuer shall deposit
with the Trustee, in trust, funds sufficient to pay at
maturity or upon redemption of all the Securities (other
than any Securities which shall have been destroyed, lost or
stolen and which shall have been replaced or paid as
provided in Section 2.6) not theretofore cancelled or
delivered to the Trustee for cancellation, including
principal and interest due or to become due to such date of
maturity or redemption date, as the case may be, but
excluding, however, the amount of any moneys for the payment
of principal of or interest on the Securities theretofore
repaid to the Issuer in accordance with the provisions of
Section 9.4 or paid to any State or the District of Columbia
pursuant to its unclaimed property or similar laws, and if
the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer, then this Indenture shall
cease to be of further effect (except as to (i) rights of
registration of transfer and exchange, and the Issuer's
right of optional redemption, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of holders to receive payments of
principal thereof and interest thereon, (iv) the rights,
obligations and immunities of the Trustee hereunder, (v) the
rights of the Securityholders as beneficiaries hereof with
respect to the property so deposited with the Trustee
payable to all or any of them and (vi) the obligation of the
Issuer to maintain an office or agency as provided in
Section 3.2) and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of
Counsel and at the cost and expense of the Issuer, shall
execute proper instruments acknowledging such satisfaction
of and discharging this Indenture. The Issuer agrees to
reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the
Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or
the Securities.
SECTION 9.2 Application by Trustee of Funds
Deposited for Payment of Securities. Subject to Section
9.4, all moneys deposited with the Trustee pursuant to
Section 9.1 or 9.5 shall be held in trust and applied by it
to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to
the holders of the particular Securities for the payment or
redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be
segregated from other funds except to the extent required by
law.
SECTION 9.3 Repayment of Moneys Held by Paying
Agent. In connection with the satisfaction and discharge of
this Indenture all moneys then held by any paying agent
under the provisions of this Indenture shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and
Paying Agent Unclaimed for Three Years. Any moneys
deposited with or paid to the Trustee or any paying agent
for the payment of the principal of or interest on any
Security and not applied but remaining unclaimed for three
years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written
request of the Issuer and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the
Trustee or such paying agent, and the holder of such
Security shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed
property laws, thereafter look only to the Issuer for any
payment which such holder may be entitled to collect, and
all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease.
SECTION 9.5 Defeasance. At the Issuer's option,
either (a) the Issuer shall be deemed to have been Dis-
charged (as defined below) from its respective obligations
under the Securities on the 91st day after the applicable
conditions set forth below have been satisfied or (b) the
Issuer shall cease to be under any obligation to comply with
any term, provision or condition set forth in Sections 3.9
through 3.17, 8.1 and 8.2 with respect to the Securities at
any time after the applicable conditions set forth below
have been satisfied:
(1) the Issuer shall have deposited or caused to
be deposited irrevocably with the Trustee as funds in
trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the
Securities, (i) funds in an amount sufficient to pay
the principal amount of the Securities in full on the
date of maturity of the Securities or a selected date
of redemption of the Securities as permitted under this
Indenture (if such Securities are to be called for
redemption and satisfactory arrangements have been made
with the Trustee for the giving of notice of
redemption) and the interest on such aggregate
principal amount to the date of maturity of the
Securities or such date of redemption, taking into
account all intervening interest payment dates, for the
period from the date through which interest on the
Securities has been paid to the date of maturity of the
Securities or such date of redemption and all other
sums payable hereunder by the Issuer; and provided that
such funds, if invested, shall be invested only in U.S.
Government Obligations maturing prior to the date of
maturity of the Securities or, to the extent
applicable, such date of redemption and such
intervening interest payment dates; and, provided
further, however, that the Trustee shall have no
obligation to invest such funds; or (ii) U.S.
Government Obligations in such aggregate principal
amount and maturity on such dates as will, together
with the income or increment to accrue thereon, but
without consideration of any reinvestment of such
income or increment, be sufficient to pay when due
(including any intervening interest payment dates) the
amounts set forth in the foregoing clauses (A) and (B);
or (iii) a combination of (i) and (ii), sufficient (in
the cases of deposits made pursuant to (ii) or (iii)),
in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay
and discharge each installment of principal of, and
interest on, the outstanding Securities on the dates
such installments of principal or interest are due;
(2) no Event of Default or event which with
notice or lapse of time would become an Event of
Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit;
(3) the Issuer shall have delivered to the
Trustee (A) an Opinion of Counsel to the effect that
the deposit of such funds or investments or both to
defease the Issuer's obligations in respect of the
Securities is in accordance with the provisions of this
Indenture and (B) either (i) an Opinion of Counsel to
the effect that Holders of the Securities will not
recognize income, gain or loss for United States
federal income tax purposes as a result of the exercise
of the option under this Section 9.5 and will be
subject to United States Federal income tax on the same
amount and in the same manner and at the same time as
would have been the case if such option had not been
exercised, or (ii) a private letter ruling to that
effect directed to the Trustee received from the United
States Internal Revenue Service; and
(4)the deposit of such funds or investments
shall not contravene applicable law.
"Discharged" means that the Issuer shall be deemed
to have paid and discharged the entire indebtedness
represented by, and obligations under, the Securities and to
have satisfied all the obligations under this Indenture and
the Securities (and the Trustee, at the request and the
expense of the Issuer, shall execute proper instruments
acknowledging the same), except (i) the rights of Holders of
Securities to receive, from the trust fund described in
clause (1) above, payment of the Principal of and the
interest on the Securities when such payments are due; (ii)
the Issuer's obligations with respect to the Securities
under Section 2.5, 2.6, and 9.4; (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder, and
(iv) the obligation of the Issuer to maintain an office or
agency as provided in Section 3.2.
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
SECTION 10.1 Incorporators, Stockholders,
Officers and Directors of Issuer Exempt from Individual
Liability. No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, as such, or against
any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor, either
directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by
the holders thereof and as part of the consideration for the
issue of the Securities.
SECTION 10.2 Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this
Indenture or in the Securities, expressed or implied, shall
give or be construed to give to any person, firm or
corporation, other than the parties hereto and their
successors and the holders of Senior Indebtedness and the
holders of the Securities, any legal or equitable right,
remedy or claim under this Indenture or under any covenant
or provision herein contained, all such covenants and
provisions being for the sole benefit of the parties hereto
and their successors and of the holders of Senior
Indebtedness and the holders of the Securities.
SECTION 10.3 Successors and Assigns of Issuer
Bound by Indenture. All the covenants, stipulations,
promises and agreements in this Indenture contained by or in
behalf of the Issuer shall bind its successors and assigns,
whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer,
Trustee and Securityholders. Any notice or demand which by
any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the holders of
Securities to or on the Issuer may be given or served by
hand delivery, by overnight courier or by being deposited
postage prepaid, first-class mail (except, in each case, as
otherwise specifically provided herein), in each case
addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to Flagstar Corporation, 203
East Main Street, Spartanburg, South Carolina 29319,
Attention: Chief Financial Officer. Any notice, direction,
request or demand by the Issuer or any Securityholder to or
upon the Trustee shall be deemed to have been sufficiently
given or made, for all purposes, if given or made at the
Corporate Trust Office.
Where this Indenture provides for notice to
holders, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and
delivered by hand, delivered by overnight courier or mailed,
first-class postage prepaid, to each holder entitled
thereto, at his last address as it appears in the Security
register. In any case where notice to holders is given by
any of the foregoing means, neither the failure to give such
notice by such means, nor any defect in any notice so given,
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 or
irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner
of giving such notice as shall be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 Officers' Certificates and Opinions
of Counsel; Statements to Be Contained Therein. Upon any
application or demand by the Issuer to the Trustee to take
any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent provided
for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent
have been complied with, except that in the case of any such
application or demand as to which the furnishing of such
documents is specifically required by any provision of this
Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or
condition, (b) a brief statement as to the nature and scope
of the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based, (c) a statement that, in the opinion of
such person, he has made such examination or investigation
as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an
officer of the Issuer may be based, insofar as it relates to
legal matters, upon a certificate or opinion of or
representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect
to the matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are
erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters
information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer,
unless such counsel knows that the certificate, statement or
opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous.
Any certificate, statement or opinion of an
officer of the Issuer or of counsel may be based, insofar as
it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer
or counsel, as the case may be, knows that the certificate
or opinion or representations with respect to the accounting
matters upon which his certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm
of public accountants filed with the Trustee shall contain a
statement that such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays
and Holidays. If the date of maturity of interest on or
principal of the Securities or the date fixed for redemption
of any Security shall not be a Business Day, then payment of
interest or principal 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 date of maturity or the
date fixed for redemption, and no interest shall accrue for
the period after such date.
SECTION 10.7 Conflict of Any Provision of
Indenture with Trust Indenture Act of 1939. If and to the
extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in
this Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939 (an
"incorporated provision"), such incorporated provision shall
control.
SECTION 10.8 New York Law to Govern. This
Indenture and each Security shall be deemed to be a contract
under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of
said State, except as may otherwise be required by mandatory
provisions of law.
SECTION 10.9 Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall
be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 10.10 Effect of Headings. The Article and
Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction
hereof.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES.
SECTION 11.1 Right of Optional Redemption. The
Securities may not be redeemed at the option of the Issuer
prior to maturity, except that the Securities may be
redeemed in part at the option of the Issuer prior to
September 15, 1996 upon the terms and subject to the
conditions set forth in the form of Security hereinabove
recited.
SECTION 11.2 Notice of Redemption; Partial
Redemptions. Notice of redemption to the holders of
Securities to be redeemed as a whole or in part shall be
given by mailing notice of such redemption by first class
mail, postage prepaid, at least 30 days and not more than 60
days prior to the date fixed for redemption to such holders
of Securities at their last addresses as they shall appear
upon the registry books. Any notice which is mailed in the
manner herein provided shall be conclusively presumed to
have been duly given, whether or not the holder receives the
notice. Failure to give notice by mail, or any defect in
the notice to the holder of any Security designated for
redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other
Security.
The notice of redemption to each such holder shall
specify the principal amount of each Security held by such
holder to be redeemed, the date fixed for redemption, the
redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such
Securities, that interest accrued to the date fixed for
redemption will be paid as specified in said notice and that
on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue. In case any
Security is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security,
a new Security or Securities in principal amount equal to
the unredeemed portion thereof will be issued.
The notice of redemption of Securities to be
redeemed at the option of the Issuer shall be given by the
Issuer or, at the Issuer's request, by the Trustee in the
name and at the expense of the Issuer.
On or prior to the redemption date specified in
the notice of redemption given as provided in this Section,
the Issuer will deposit with the Trustee or with one or more
paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities so called for redemption
at the appropriate redemption price, together with accrued
interest to the date fixed for redemption. If less than all
the outstanding Securities are to be redeemed the Issuer
will deliver to the Trustee at least 70 days prior to the
date fixed for redemption an Officers' Certificate stating
the aggregate principal amount of Securities to be redeemed.
If less than all the Securities are to be
redeemed, the Trustee shall select, in such manner as it
shall deem appropriate and fair but generally pro rata or by
lot, Securities to be redeemed in whole or in part.
Securities may be redeemed in part in multiples of $1,000
only. The Trustee shall promptly notify the Issuer in
writing of the Securities selected for redemption and, in
the case of any Securities 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
Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is
to be redeemed.
SECTION 11.3 Payment of Securities Called for
Redemption. If notice of redemption has been given as above
provided, the Securities or portions of Securities specified
in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the
Issuer shall default in the payment of such Securities at
the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities
so called for redemption shall cease to accrue and, except
as provided in Sections 5.5 and 9.4, such Securities shall
cease from and after the date fixed for redemption to be
entitled to any benefit or security under this Indenture,
and the holders thereof shall have no right in respect of
such Securities except the right to receive the redemption
price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice,
said Securities or the specified portions thereof shall be
paid and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date
fixed for redemption; provided that any semi-annual payment
of interest becoming due on the date fixed for redemption
shall be payable to the holders of such Securities
registered as such on the relevant record date subject to
the terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be
so paid upon surrender thereof for redemption, the principal
shall, until paid or duly provided for, bear interest from
the date fixed for redemption at the rate borne by the
Security.
Upon presentation of any Security redeemed in part
only, the Issuer shall execute and the Trustee shall
authenticate and deliver to or on the order of the holder
thereof, at the expense of the Issuer, a new Security or
Securities, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so
presented.
SECTION 11.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption. Securities shall
be excluded from eligibility for selection for redemption if
they are identified by registration and certificate number
in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be
given as being owned of record and beneficially by, and not
pledged or hypothecated by either (a) the Issuer or (b) an
entity specifically identified in such written statement
directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
SECTION 11.5 Offer to Redeem by Application of
Net Proceeds. At such time as the Issuer determines to make
a Net Proceeds Offer pursuant to the provisions of Section
3.13 hereof, the Issuer shall deliver to the Trustee a
notice to such effect specifying the aggregate principal
amount of the Securities for which the Net Proceeds Offer
will be made. Within 15 days thereafter, the Trustee shall
select the Securities to be offered to be redeemed in
accordance with Section 11.2 hereof. Within 10 days
thereafter the Issuer shall mail or cause the Trustee to
mail (in the Issuer's name and at its expense and pursuant
to an Officer's Certificate as required by Section 3.13
hereof) a Net Proceeds Offer to redeem to each Holder of
Securities whose Securities are to be offered to be
redeemed. The Net Proceeds Offer shall identify the
Securities to which it relates and shall contain the
information required by the second paragraph of Section 11.2
hereof and shall provide for a redemption date no earlier
than 65 days after the mailing of the Net Proceeds Offer.
A Holder receiving a Net Proceeds Offer may elect
to have redeemed the Securities to which the Net Proceeds
Offer relates by providing written notice thereof to the
Trustee and the Issuer on or before 35 days preceding the
redemption date and shall thereafter complete the form
entitled "Option of Holder to Elect to Have Security
Redeemed" on the reverse of the Security and surrender the
Security to the Issuer, or depositary, if appointed by the
Issuer, or a paying agent at least three days prior to the
redemption date. A Holder may not elect to have redeemed
less than all of the Securities to which the Net Proceeds
Offer relates.
Other than as specifically provided in this
Section 11.5, any redemption pursuant to this Section 11.5
shall be made pursuant to the provisions of Sections 11.2
through 11.4 hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed and attested, all as of
the date first above written.
FLAGSTAR CORPORATION
By /s/ Karl H. Sedlarz
Title: Vice President and
Treasurer
Attest:
By /s/ George E. Moseley
Title: Secretary
FIRST TRUST NATIONAL
ASSOCIATION,
as Trustee
By /s/ Frank Leslie
Title: Assistant Vice President
Attest:
By /s/
Title: Assistant Vice President
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On this 23rd day of September, 1993, before me
personally came Karl H. Sedlarz, to me known, who being by me
personally sworn, did depose and say that he is the
Vice President and Treasurer of Flagstar Corporation, the
corporation described in and on behalf of which he has
executed the above instrument, and that he is authorized by
said corporation to execute the same.
/s/ Kate Kamish
Notary Public
STATE OF MINNESOTA )
: ss.:
COUNTY OF RAMSEY )
On this 23rd day of September, 1993, before me
personally came Frank P. Leslie III, to me known, who being by me
personally sworn, did depose and say that he is the
Assistant Vice President of First Trust National Association, the
corporation described in and on behalf of which he has
executed the above instrument, and that he is authorized by
said corporation to execute the same.
/s/ Mary K. Reber
Notary Public