Exhibit 4.5
INDENTURE, dated as of November 27, 1996, between TELEGROUP,
INC., a corporation incorporated under the laws of the State of Iowa
(together with its successors, the "Company"), as issuer, and THE CHASE
MANHATTAN BANK, as trustee (the "Trustee").
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the Holders of the
Company's 12% Senior Subordinated Notes due 2003 (the "Notes").
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
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"Affiliate" of any specified Person means any other Person,
directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of
this definition, "control" when used with respect to any Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing. "Affiliate" shall also mean any
Beneficial Owner of shares representing 10% or more of the total voting
power of the Voting Stock (on a fully diluted basis) of the Company,
and, for purposes of Section 4.10 only, any Person who would be an
Affiliate of any such Beneficial Owner pursuant to the first sentence
hereof.
"Agent" means any Registrar or Paying Agent of the Notes.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including by merger,
consolidation or otherwise) by the Company or any Subsidiary of the
Company, in one or a series of related transactions, of: (a) any Capital
Stock of any Subsidiary of the Company; (b) all or substantially all of
the properties and assets of any division or line of business of the
Company or any Subsidiary of the Company; or (c) other than in the
ordinary course of business, any properties or assets of the Company or
a Subsidiary of the Company. For the purposes of this definition, the
term "Asset Sale" shall not include any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets (i) to the
Company or any Subsidiary of the Company, (ii) that is governed by
Section 5.01, (iii) that is governed by Section 4.09 or (iv) in one
transaction or a series of related transactions involving assets with a
Fair Market Value not in excess of $2,000,000.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at
the interest rate assumed in making calculations in accordance with FAS
13) of the total obligations of the lessee for rental payments during
the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been
extended).
"Average Life" means, with respect to any Indebtedness, as at
any date of determination, the quotient obtained by dividing (a) the sum
of the products of (i) the number of years from such date to the date or
dates of each successive scheduled principal payment (including, without
limitation, any sinking fund requirements) of such Indebtedness
multiplied by (ii) the amount of each such principal payment by (b) the
sum of all such principal payments.
"Bank Agent" means American National Bank and Trust Company of
Chicago or any successor or replacement administrative agent under the
Credit Agreement.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
"Beneficial Owner" means a "beneficial owner" as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall
be deemed to be a "beneficial owner" of all securities that such Person
has the right to acquire, whether that right is exercisable immediately
or only after the passage of time.
"Board of Directors" means the Board of Directors of the
Company or a designated committee thereof.
"Board Resolution" means a copy of a resolution certified by
the Secretary of the Company or any Note Guarantor, as the case may be,
to have been duly adopted by the Board of Directors or the board of
directors (or designated committee thereof) of the relevant Note
Guarantor and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means a day other than a Saturday, Sunday or
any other day on which banking institutions in New York State are
authorized or required by law to close.
"Capital Stock" of any Person means any and all shares of,
rights to purchase, warrants or options for, or participations or other
interests in (however designated) equity of such Person, including
Preferred Stock, but excluding any debt securities convertible into such
equity.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for
financial reporting purposes in accordance with GAAP, and the amount of
Indebtedness represented by such obligation shall be the capitalized
amount of such obligation determined in accordance with GAAP; and the
Stated Maturity thereof shall be the date of the last payment of rent or
any other amount due under such lease.
"Cash Equivalents" means (i) any security, maturing not more
than one year after the date of acquisition, issued by the United States
of America, or an instrumentality or agency thereof and guaranteed fully
as to principal, premium, if any, and interest by the United States of
America; (ii) any certificate of deposit, time deposit or bankers'
acceptance (or, with respect to non-U.S. banking institutions, similar
instruments), maturing not more than one year after the day of
acquisition, issued by any commercial banking institution that is a
member of the Federal Reserve System or a commercial banking institution
organized and located in a country recognized by the United States of
America, in each case, having combined capital and surplus and undivided
profits of not less than $500,000,000 (or the foreign currency
equivalent thereof), whose short-term debt has a rating, at the time as
of which any investment therein is made, of "P-1" (or higher) according
to Moody's or "A-1" (or higher) according to S&P; (iii) commercial paper
maturing not more than one year after the date of acquisition issued by
a corporation (other than an Affiliate or Subsidiary of the Company)
with a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's or "A-1" (or higher) according
to S&P; and (iv) any money market deposit accounts issued or offered by
a commercial banking institution that is a member of the Federal Reserve
System or a commercial banking institution organized and located in a
country recognized by the United States of America, in each case, having
combined capital and surplus and undivided profits in excess of
$500,000,000 (or the foreign currency equivalent thereof).
"Change of Control" has the meaning set forth in
Section 4.16(b).
"Commodities Agreements" means one or more of the following
agreements entered into by a Person and one or more financial
institutions: commodity future contracts, forward contracts, options or
other similar agreements or arrangements designed to protect against
fluctuations in the
price of, or the shortage of supply of, commodities from time to time.
"Company" means Telegroup, Inc., an Iowa corporation, until a
successor Person shall have become such pursuant to Article Five, and
thereafter "Company" shall mean such successor Person.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of (i) the aggregate amount of EBITDA of the Company for
the period of the most recent four consecutive fiscal quarters ending
prior to the date of such determination for which consolidated financial
statements of the Company are available to (ii) Consolidated Interest
Expense of the Company for such four fiscal quarters, provided, however,
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that:
(1) if the Company or any Subsidiary of the Company (x) has
Incurred any Indebtedness since the beginning of such period that
remains outstanding on such date of determination or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio is
an Incurrence of Indebtedness, EBITDA and Consolidated Interest Expense
for such period shall be calculated after giving effect on a pro forma
basis to such Indebtedness and the application of the proceeds thereof
as if such Indebtedness had been Incurred on the first day of such
period or (y) has repaid, repurchased, defeased or otherwise discharged
any Indebtedness since the beginning of the period that is no longer
outstanding on such date of determination, or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio involves a
discharge of Indebtedness, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving effect to such discharge of
such Indebtedness, including with the proceeds of such new Indebtedness,
as if such discharge had occurred on the first day of such period;
(2) if since the beginning of such period the Company or any
Subsidiary of the Company shall have
disposed of any company or any business or any group of assets
constituting an operating unit (a "Disposal"), (x) EBITDA for such
period shall be reduced by an amount equal to the EBITDA (if positive)
directly attributable to the assets which are the subject of such
Disposal for such period or increased by an amount equal to the EBITDA
(if negative) directly attributable thereto for such period and (y)
Consolidated Interest Expense for such period shall be reduced by an
amount equal to the Consolidated Interest Expense directly attributable
to any Indebtedness of the Company or any Subsidiary repaid,
repurchased, defeased or otherwise discharged with respect to the
Company and its continuing Subsidiaries in connection with such Disposal
for such period (and, if the Capital Stock of any Subsidiary is sold,
the Consolidated Interest Expense for such period directly attributable
to the Indebtedness of such Subsidiary to the extent the Company and its
continuing Subsidiaries are no longer liable for such Indebtedness after
such sale);
(3) if since the beginning of such period the Company or any
Subsidiary of the Company (by merger or otherwise) shall have acquired
any company or any business or any group of assets constituting an
operating unit (for purposes of this definition, an "Acquisition"),
EBITDA and Consolidated Interest Expense for such period shall be
calculated after giving pro forma effect thereto (including the
Incurrence of any Indebtedness) as if such Acquisition had occurred on
the first day of such period; and
(4) if since the beginning of such period any Person (that
subsequently became a Subsidiary of the Company or was merged with or
into the Company or any Subsidiary of the Company since the beginning of
such period) shall have made any Disposal or Acquisition that would have
required an adjustment pursuant to clause (2) or (3) above if made by
the Company or a Subsidiary of the Company during such period, EBITDA
and Consolidated Interest Expense for such period shall
be calculated after giving pro forma effect thereto as if such Disposal
or Acquisition occurred on the first day of such period.
If any Indebtedness bears a floating rate of interest and is
being given pro forma effect, the interest expense on such Indebtedness
shall be calculated as if the rate in effect on the date of
determination had been the applicable rate for the entire period (taking
into account any Interest Rate Agreement applicable to such Indebtedness
if such Interest Rate Agreement has a remaining term as at the date of
determination in excess of 12 months). If any Indebtedness bears, at
the option of the Company or a Subsidiary of the Company, a fixed or
floating rate of interest and is being given pro forma effect, the
interest expense on such Indebtedness shall be computed by applying, at
the option of the Company, either a fixed or floating rate. If any
Indebtedness which is being given pro forma effect was Incurred under a
revolving credit facility, the interest expense on such Indebtedness
shall be computed based upon the average daily balance of such
Indebtedness during the applicable period.
"Consolidated Income Tax Expense" means for any period, as
applied to any Person, the provision for federal, state, local and
foreign income taxes and capital taxes of such Person and its
Consolidated Subsidiaries for such period as recorded under "provision
for taxes" on the statement of operations of such Person as determined
in accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its Consolidated Subsidiaries,
as determined in accordance with GAAP, plus, to the extent Incurred by
the Company and its Subsidiaries in such period but not included in such
interest expense, (i) amortization of debt discount (including
amortization of fees), (ii) the interest portion of any deferred payment
obligation which in accordance with GAAP is required to be reflected on
an income statement, (iii) net costs (including amortization of
discounts and
fees) associated with Interest Rate Agreements or Currency Agreements,
(iv) interest accruing on any Indebtedness of any other Person that is
Guaranteed by the Company or any Subsidiary of the Company, (v) all
commissions, discounts and other fees and charges with respect to
letters of credit and bankers' acceptance financing, (vi) all accrued
interest, (vii) the aggregate dividends paid or accrued on Preferred
Stock held by Persons other than the Company or a Wholly Owned
Subsidiary of the Company, (viii) the interest component of Capitalized
Lease Obligations paid, accrued and/or scheduled to be paid by the
Company and the Subsidiaries during such period as determined on a
consolidated basis in accordance with GAAP, and (ix) the cash
contributions to any employee stock ownership plan or similar trust to
the extent such contributions are used by such plan or trust to pay
interest or fees to any Person (other than the Company) in connection
with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its Consolidated Subsidiaries, as
determined in accordance with GAAP; provided, however, that there shall
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not be included in such Consolidated Net Income: (i) any net income of
any Person that is not the Company or a Subsidiary of the Company,
except that, subject to the limitations contained in clause (iv) below,
the Company's equity in the net income of any such Person for such
period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Person during such
period to the Company or a Subsidiary of the Company as a dividend or
other distribution (subject, in the case of a dividend or other
distribution to a Subsidiary , to the limitations contained in clause
(iii) below); (ii) any net income or loss of any Person acquired by the
Company or a Subsidiary of the Company in a pooling of interests
transaction for any period prior to the date of such acquisition; (iii)
any net income of any Subsidiary of the Company if such Subsidiary is
subject to restrictions, directly or indirectly, on the payment of
dividends or the making of distributions by such Subsidiary, directly or
indirectly, to the Company, except
that, subject to the limitations contained in clause (iv) below, the
Company's equity in the net income of any such Subsidiary for such
period shall be included in such Consolidated Net Income up to the
aggregate amount of cash that could have been distributed by such
Subsidiary during such period to the Company or another Subsidiary as a
dividend (subject, in the case of a dividend that could have been made
to another Subsidiary of the Company, to the limitation contained in
this clause); (iv) any gain or loss realized upon any Asset Sale and any
gain or loss realized upon the sale or other disposition of any Capital
Stock of any Person; (v) any extraordinary gain or loss as recorded on
the statement of operations of the Company in accordance with GAAP;
(vi) the cumulative effect of a change in accounting principles as
recorded on the statement of operations of the Company in accordance
with GAAP; (vii) all deferred financing costs written off in connection
with the early extinguishment of indebtedness under the Credit Agreement
or the Notes as recorded on the Company's statement of operations in
accordance with GAAP; (viii) unrealized foreign currency transaction
gains or losses in respect of Indebtedness of any Person denominated in
a currency other than the functional currency of such Person and
permitted to be Incurred under Section 4.08 as recorded on the statement
of operations of the Company in accordance with GAAP; (ix) non-recurring
charges related to any acquisition by the Company or any Subsidiary of
the Company occurring after the Issue Date as recorded on the statement
of operations of the Company in accordance with GAAP; (x) non-cash,
non-recurring charges as recorded on the Company's statement of operations
in accordance with GAAP; and (xi) unrealized gains or losses in respect
of Currency Agreements permitted by Section 4.08(v) as recorded on the
statement of operations in accordance with GAAP; provided that in the
case of any amount or charge specified in clause (vii), (viii), (ix),
(x) or (xi), such amount or charge shall be net of any tax or tax
benefit to the Company or any of its consolidated Subsidiaries resulting
therefrom.
"Consolidated Non-Cash Charges" of any Person means, for any
period, the aggregate depreciation,
amortization and other non-cash charges of such Person and its
consolidated Subsidiaries for such period, on a Consolidated basis, as
determined in accordance with GAAP (excluding any non-cash charge that
requires an accrual or reserve for cash charges for any future period).
"Consolidated Net Worth" means, with respect to any Person as
of any date, the sum of (i) the consolidated equity of the common
stockholders of such Person and its consolidated Subsidiaries as of such
date plus (ii) the respective amounts reported on such Person's balance
sheet as of such date with respect to any series of Preferred Stock
(other than Preferred Stock which is Redeemable Capital 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 such Person upon issuance of such Preferred Stock,
less (to the extent otherwise included in (i) and (ii) above) (w) all
write-ups (other than write-ups resulting from foreign currency
translations and write-ups of tangible assets of a going concern
business made within 12 months after the acquisition of such business)
subsequent to the Issue Date in the book value of any asset owned by
such Person or a consolidated Subsidiary of such Person, (x) all amounts
attributable to interests in Subsidiaries of such Person held by Persons
other than such Person or its Subsidiaries, (y) all investments as of
such date in unconsolidated Subsidiaries and in Persons that are not
Subsidiaries, and (z) all unamortized debt discount and expense and
unamortized deferred charges as of such date, all of the foregoing
determined in accordance with GAAP.
"Consolidation" means the consolidation of the amounts of each
of the Company's Subsidiaries with those of the Company in accordance
with GAAP consistently applied. The term "Consolidated" has a
correlative meaning.
"Corporate Trust Office" means the corporate trust office of
the Trustee at which at any particular time its corporate trust business
shall be principally administered,
which on the date hereof is 450 West 33rd Street, 15th Floor, New York,
New York 10001.
"covenant defeasance" has the meaning set forth in Section
8.02 (c).
"Credit Agreement" means the Credit Agreement, among the
Company and the other financial institutions which are to become parties
thereto from time to time, as such agreement may be amended, modified,
supplemented, renewed, refunded, replaced, increased or refinanced (in
whole or in part) from time to time by one or more instruments or
agreements with the same or other, or any combination of the same and
other, lenders and, in each case, including, without limitation, any
related notes, letters of credit and applications therefor, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, in each case as amended, modified, supplemented, renewed,
refunded, replaced, increased or refinanced (in whole or in part) from
time to time by one or more instruments or agreements. Without limiting
the generality of the foregoing, the term "Credit Agreement" shall,
subject to the covenants of this Indenture, include any agreement (i)
changing the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder, (iii) increasing the
amount of Indebtedness incurred thereunder or available to be borrowed
thereunder or (iv) otherwise altering the terms and conditions thereof.
"Credit Agreement Obligations" means all monetary obligations
of every nature of the Company or a Subsidiary of the Company,
including, without limitation, obligations to pay principal and
interest, reimbursement obligations under letters of credit, fees,
expenses and indemnities, from time to time owed to the lenders or any
agent under or in respect of the Credit Agreement.
"Currency Agreement" means in respect of any Person any
foreign exchange contract, currency swap
agreement or other similar agreement as to which such Person is a party
or a beneficiary.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage
of time, or both, would be, an Event of Default.
"defeasance" has the meaning set forth in Section 8.02 (b).
"Disinterested Director" means a member of the Board of
Directors who does not have any material direct or indirect financial
interest in or with respect to any transaction or series of
transactions.
"Dollar" or "$" means the lawful money of the United States of
America.
"EBT" means, with respect to any Person for any period, the
sum of Consolidated Net Income of such Person for such period, plus all
Consolidated Income Tax Expense deducted in computing such Consolidated
Net Income for such period, all determined on a consolidated basis in
accordance with GAAP.
"EBITDA" for any period means, with respect to any Person, the
sum of Consolidated Net Income, Consolidated Interest Expense,
Consolidated Income Tax Expense and Consolidated Non-Cash Charges
deducted in computing Consolidated Net Income, without duplication, in
each case for such period, of such Person and its consolidated
Subsidiaries on a consolidated basis, all determined in accordance with
GAAP.
"Event of Default" has the meaning set forth under
Section 6.01.
"Excess Proceeds" has the meaning set forth in Section
4.15(a).
"Excess Proceeds Offer" has the meaning set forth in
Section 4.15(b).
"Excess Proceeds Offer Price" has the meaning set forth in
Section 4.15(b).
"Excess Proceeds Purchase Date" has the meaning set forth in
Section 4.15(c).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or
property, the price that could be negotiated in an arm's-length free
market transaction, for cash, between an informed and willing seller and
an informed and willing buyer, neither of whom is under undue pressure
or compulsion to complete the transaction.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including
those set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board. All ratios and computations based on GAAP
contained in this Indenture shall be computed in conformity with GAAP.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such Person (whether arising by
virtue of partnership arrangements, or by agreement to keep well, to
purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise)
or (ii) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof
or to protect such obligee against loss in respect thereof (in whole or
in part), provided, however, that the term "Guarantee" shall not include
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(x) endorsements for collection or deposit in the ordinary course of
business and (y) any obligation of any kind whatsoever of (i) the
Company with respect to any Wholly-Owned Subsidiary, (ii) any Wholly-Owned
Subsidiary with respect to the Company or (iii) any Wholly-Owned
Subsidiary with respect to any other Wholly-Owned Subsidiary. The term
"Guarantee" used as a verb has a corresponding meaning.
"Guarantor Senior Indebtedness" means, with respect to any
Note Guarantor, the principal of, premium, if any, and interest
(including interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under
applicable state, federal or foreign law) on and other amounts due on or
in connection with (including any fees, premiums, expenses, including
costs of collection, and indemnities) any Indebtedness of such Note
Guarantor, whether outstanding on the Issue Date or thereafter created,
incurred or assumed, unless, in the case of any particular Indebtedness,
the instrument creating or evidencing the same or pursuant to which the
same is outstanding expressly provides that such Indebtedness shall not
be senior in right of payment to the Note Guarantee of such Note
Guarantor. Without limiting the generality of the foregoing, "Guarantor
Senior Indebtedness" shall also include the principal of, premium, if
any, and interest (including any interest accruing subsequent to the
filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law) on, and
all other amounts owing in respect of all Credit Agreement Obligations
of such Note Guarantor.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for, provided, however, that any Indebtedness or Capital
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Stock of a Person existing at the time such Person becomes a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be
deemed to be Incurred by such Person at the time it becomes a
Subsidiary.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all liabilities of such Person for borrowed money or
for the deferred purchase price of property or services, excluding any
trade accounts payable, other accrued current liabilities and
liabilities of the kind referred to in clauses (f) and (g) of the second
sentence of the definition of the term "Senior Indebtedness", in each
case to the extent the same is incurred in the ordinary course of
business consistent with past practice, but including, without
limitation, all obligations, contingent or otherwise, of such Person in
connection with any letters of credit, banker's acceptance or other
similar credit transaction, or in connection with any agreement to
purchase, redeem, exchange, convert or otherwise acquire for value any
Capital Stock of such Person, or any warrants, rights or options to
acquire such Capital Stock, now or hereafter outstanding, (b) all
obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (c) all indebtedness of such Person created
or arising under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even if the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), but
excluding trade accounts payable arising in the ordinary course of
business, (d) all Capitalized Lease Obligations and all Attributable
Debt of such Person, (e) all Indebtedness referred to in the preceding
clauses of other Persons and all dividends of other Persons, the payment
of which is secured by (or for
which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien upon property (including,
without limitation, accounts and contract rights) owned by such Person,
even though such Person has not assumed or become liable for the payment
of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (f) all Guarantees of such Person in respect of
Indebtedness of another Person of any of the types referred to in this
definition, (g) all Redeemable Capital Stock of such Person valued at
the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued dividends, (h) all Currency Agreements, Interest Rate
Agreements and Commodities Agreements of such Person and (i) any
amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of such Person of any of the types referred
to in clauses (a) through (h) above.
For purposes hereof, (x) the "maximum fixed repurchase price"
of any Redeemable Capital Stock that does not have a fixed repurchase
price shall be calculated in accordance with the terms of such
Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon,
or measured by, the fair market value of such Redeemable Capital Stock,
such fair market value shall be determined in good faith by the board of
directors of the issuer of such Redeemable Capital Stock and (y)
Indebtedness is deemed to be incurred pursuant to a revolving credit
facility each time an advance is made thereunder. When any Person
becomes a Subsidiary there shall be deemed to have been an Incurrence by
such Subsidiary of all Indebtedness for which it is liable at the time
it becomes a Subsidiary. If the Company or any Subsidiary of the
Company, directly or indirectly, Guarantees Indebtedness of another
Person or otherwise Incurs a contingent obligation, there shall be
deemed to be an Incurrence of such Guaranteed Indebtedness or the
Incurrence of the maximum amount of such contingent obligation, as the
case may be, as if the Company or such
Subsidiary had directly incurred or otherwise assumed such Guaranteed
Indebtedness or directly incurred or otherwise assumed the maximum
amount of such contingent obligation, as the case may be.
"Indenture" means this Indenture, as amended, modified or
supplemented from time to time.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes, as set forth therein.
"Interest Rate Agreement" means with respect to any Person,
any interest rate protection agreement, interest rate future agreement,
interest rate option agreement, interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement, interest rate hedge
agreement or other similar agreement or arrangement as to which such
Person is party or a beneficiary.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course
of business that are recorded as accounts receivable on the balance
sheet of the Person making such advance) or other extension of credit
(including by way of Guarantee or similar arrangement) 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, Indebtedness
or other similar instruments issued by such Person.
"Issue Date" means the date on which the Notes are originally
issued.
"Lien" means any mortgage, pledge, security interest,
hypothecation, assignment, conveyance, preference, priority,
encumbrance, lien (statutory or other) or charge of any kind (including
any conditional sale or other title retention agreement or lease in the
nature thereof).
"Material Adverse Effect" means any material adverse change in
the properties, business, operations, assets, condition (financial or
otherwise) or prospects of the Company or its Subsidiaries which could
reasonably be expected to result in a material adverse effect upon the
business, operations, properties, assets, condition (financial or
otherwise) or prospects of the Company and its Subsidiaries taken as a
whole.
"Maturity Date" means, with respect to any Note, the date on
which any principal of such Note becomes due and payable as therein or
herein provided, whether at the Stated Maturity with respect to such
principal or by declaration of acceleration, call for redemption or
purchase (including pursuant to an Excess Proceeds Offer or an offer in
the event of a Change of Control) or otherwise.
"Maximum Amount" shall mean, with respect to any fiscal year of the
Company, (i) $2 million, if the EBT for the Company in the year
immediately preceding such fiscal year, as derived from the audited
financial statements delivered by the Company pursuant to Section 4.17
(iii), is $2 million or greater, (ii) $1 million plus the Excess Amount
(as defined below) for such year, if the EBT for the Company in the year
immediately preceding such fiscal year, as derived from the audited
financial statements delivered by the Company pursuant to Section 4.17
(iii), is greater than $1 million but less than $2 million (the amount
by which such EBT exceeds $1 million in such year being referred to
herein as the "Excess Amount") or (iii) $1 million, in the event that
the EBT for the Company in the year immediately preceding such fiscal
year, as derived from the financial statements delivered by the Company
pursuant to Section 4.17 (iii), is $1 million or less.
"Moody's" means Moody's Investors Service, Inc. or any
successor rating agency.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale,
the proceeds thereof in the form of cash or Cash Equivalents, including
payments in respect of deferred
payment obligations when received in the form of, or stock or other
assets when disposed for, cash or Cash Equivalents (except to the extent
that such obligations are financed or sold, but only to the extent they
continue to be, with recourse to the Company or any Subsidiary), net of
(i) brokerage commissions and other reasonable fees and expenses
(including fees and expenses of legal counsel and investment banks)
actually incurred and related to such Asset Sale, (ii) provisions for
all taxes payable as a result of such Asset Sale, (iii) amounts required
to be paid to any Person (other than the Company or any Subsidiary of
the Company) owning a beneficial interest in the assets subject to the
Asset Sale and (iv) appropriate amounts to be provided by the Company or
any Subsidiary of the Company, as the case may be, as a reserve required
in accordance with GAAP against any liabilities associated with such
Asset Sale and retained by the Company or any Subsidiary of the Company,
as the case may be, after such Asset Sale, and (b) with respect to any
issuance or sale of Capital Stock, means the proceeds of such issuance
or sale in the form of cash or Cash Equivalents, including payments in
respect of deferred payment obligations when received in the form of, or
stock or other assets when disposed for, cash or Cash Equivalents
(except to the extent that such obligations are financed or sold, but
only to the extent they continue to be, with recourse to the Company or
any Subsidiary of the Company), net of (i) brokerage commissions and
other reasonable fees and expenses (including fees of legal counsel and
investment banks) actually incurred and related to such issuance or sale
and (ii) provisions for all taxes payable as a result of such issuance
or sale; in each case, as reflected in an Officers' Certificate
delivered to the Trustee.
"Note Purchase Agreement" means the Note and Warrant Purchase
Agreement dated as of November 27, 1996 among the Company and the
purchasers of the Notes set forth on Schedule 2.2 thereto.
"Note Guarantee" means the Guaranty of the Notes on the terms
of Article Ten hereof, and any Guarantees of the Notes on the terms of
Article Ten hereof that may from
time to time be executed and delivered pursuant to the terms of this
Indenture. Each such Note Guarantee shall be in the form prescribed in
this Indenture.
"Note Guarantor" means any Person that has issued a Note
Guarantee.
"Notes" means the Company's Senior Subordinated Notes Due 2003
issued under this Indenture in the original aggregate principal amount
of U.S.$20,000,000 which are issued and authenticated under this
Indenture and are then Outstanding.
"Offer Period" has the meaning set forth in Section 4.15(c).
"Officer" means the Chairman of the Board, Chief Executive
Officer, Chief Financial Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers.
"Opinion of Counsel" means a written opinion in form and
substance reasonably satisfactory to the Trustee from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee
of or counsel to the Company or the Trustee.
"Pari Passu Indebtedness" means any Indebtedness of the
Company or any Note Guarantor ranking pari passu with the Notes or the
---- -----
applicable Note Guarantee, as applicable.
"Paying Agent" has the meaning set forth in Section 2.04,
except that, for the purposes of Sections 4.18 and 4.19 and Articles
Three and Eight, the Paying Agent shall not be the Company or a
Subsidiary of the Company or any of their respective Affiliates.
"Payment Blockage Period" shall have the meaning set forth in
Section 11.03(b).
"Payment Default" means any default in the payment when due
(whether at Stated Maturity, by acceleration or otherwise) of principal
of or interest on, or of unreimbursed amounts under drawn letters of
credit or fees relating to letters of credit constituting, any Senior
Indebtedness or Guarantor Senior Indebtedness, as applicable of the
Company or any Note Guarantor.
"Permitted Investment" means any of the following: (i)
Investments in Cash Equivalents, (ii) Investments in the Company or in
any Wholly-Owned Subsidiary of the Company (including any Person that
thereby becomes a Subsidiary of the Company), (iii) Investments in
existence on the Issue Date, (iv) receivables owing to the Company or
any Subsidiary of the Company, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary trade terms,(v) Investments in securities of any Person
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such Person, (vi) Investments
received by the Company or its Subsidiaries as consideration for Asset
Sales effected in compliance with Section 4.15, and (vii) Interest Rate
Agreements designed to protect the Company or any Subsidiary against
fluctuations in interest rates in respect of Indebtedness of the Company
or any Subsidiary, and Currency Agreements designed to protect the
Company or any Subsidiary against fluctuations in foreign currency
exchange rates in respect of foreign exchange exposures incurred by the
Company or any Subsidiary in the ordinary course of business, in each
case permitted by Section 4.08.
"Permitted Junior Securities" means (a) for purposes of
Article Eleven (so long as the effect of any exclusion employing this
definition is not to cause the Notes to be treated in any case or
proceeding or similar event described in clauses (a), (b) or (c) of
Section 11.02 as part of the same class of claims as the Senior Indebt-
edness or any class of claims pari passu with, or senior to,
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the Senior Indebtedness for purposes of any payment or distribution),
debt or equity securities of the Company or any successor Person
provided for by a plan of reorganization or readjustment that are
subordinated at least to the same extent that the Notes are subordinated
to the payment of all Senior Indebtedness; provided that (i) if a new
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Person results from such reorganization or readjustment, such Person
assumes any Senior Indebtedness not paid in full in cash or Cash
Equivalents in connection with such reorganization or readjustment and
(ii) the rights of the holders of such Senior Indebtedness are not,
without the consent of such holders, altered or impaired by such
reorganization or readjustment, and (b) for purposes of Article Ten, any
Guarantee by a Note Guarantor of a Permitted Junior Security of the
Company described in clause (a) above; provided that such Guarantee is
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subordinated to the payment of all Guarantor Senior Indebtedness at
least to the same extent that the Note Guarantees are subordinated to
the payment of all Guarantor Senior Indebtedness, and such Guarantee is
subject to provisions substantially similar to those set forth in
Article Ten.
"Permitted Lien" means (i) any Lien as existing on the Issue
Date and listed on Schedule 1 to this Indenture; (ii) any Lien on any
property or assets of a Subsidiary of the Company granted in favor of
the Company or any Subsidiary of the Company; (iii) any Lien securing
the Notes or any Note Guarantor; (iv) any Lien in favor of the Trustee
under this Indenture; and (v) any extension, renewal or replacement in
whole or in part, of any Lien described in the foregoing clauses (i)
through (v), provided that any such extension, renewal or replacement
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shall be no more restrictive in any material respect than the Lien so
extended, renewed or replaced and shall not extend to any additional
property or assets.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof, or any other entity.
"Predecessor Note" means, with respect to any particular Note,
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.07
hereof in exchange for a mutilated Note or in lieu of a lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Note.
"Preferred Stock", as applied to the Capital Stock of any
Person, means Capital Stock of any class or classes (however designated)
that is preferred as to the payment of dividends, or as to the
distribution of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any other
class of such Person.
"Public Equity Offering" means an underwritten public offering
of newly issued shares of common stock of the Company (whether alone or
in conjunction with any secondary public offering) which produces Net
Cash Proceeds for the Company of at least $25,000,000 and after which an
established public trading market exists for such common stock.
"Redeemable Capital Stock" means any class or series of
Capital Stock that, either by its terms, by the terms of any security
into which it is convertible or exchangeable or by contract or
otherwise, is, or upon the happening of an event or passage of time
would be, required to be redeemed, or matures, on or prior to the 91st
day after any Stated Maturity of the Notes, or is redeemable at the
option of the holder thereof at any time on or prior to the 91st day
after any Stated Maturity of the Notes, or, at the option of the holder
thereof, is convertible into or exchangeable for Indebtedness or
Redeemable Capital Stock at any time on or prior to the 91st day after
any Stated Maturity of the Notes; it being understood and agreed that
the term "Redeemable Capital Stock" shall not include the Warrants.
"Redemption Date" means, with respect to any Note to be
redeemed, the date fixed by the Company for such redemption pursuant to
this Indenture and the Notes.
"Redemption Price" means, with respect to any Note to be
redeemed, the price fixed for such redemption pursuant to the terms of
this Indenture and the Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement attached as Exhibit A to the Warrants.
"Registrar" shall have the meaning set forth in Section 2.04.
"Related Business" means the businesses of the Company and its
Subsidiaries as conducted on the Issue Date, and any businesses
reasonably related, ancillary or complementary to such businesses.
"Restricted Payment" shall have the meaning set forth in
Section 4.09.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired by the Company or a Subsidiary
of the Company, whereby the Company or a Subsidiary of the Company
transfers such property to a Person and the Company or a Subsidiary of
the Company leases it from such Person.
"S&P" means Standard & Poor's Ratings Services (a division of
McGraw Hill Inc.) or any successor rating agency.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means any Indebtedness of the Company
or any Subsidiary of the Company secured by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means the principal of, premium, if any,
and interest (including any interest accruing subsequent to the filing
of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an
allowed claim under applicable state, federal or foreign law) on and
other amounts due on or in connection with (including any fees,
premiums, expenses, including costs of collection, and indemnities) any
Indebtedness of the Company, whether outstanding on the Issue Date or
thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same
or pursuant to which the same is outstanding expressly provides that
such Indebtedness shall not be senior in right of payment to the Notes.
Without limiting the generality of the foregoing, "Senior Indebtedness"
shall also include the principal of, premium, if any, and interest
(including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed claim under
applicable state, federal or foreign law) on, and all other amounts
owing in respect of, all Credit Agreement Obligations of the Company,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed and including in respect of claims under guarantees, claims for
indemnity, claims in relation to expense reimbursement and fees.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include
(a) Indebtedness evidenced by the Notes, (b) Indebtedness that is
pari passu with or expressly subordinated or junior in right of payment
---- -----
to any Senior Indebtedness of the Company, (c) Indebtedness which, when
incurred and without respect to any election under Section 1111(b) of
Title 11, United States Code, is by its terms without recourse to the
Company, (d) any repurchase, redemption or other obligation in respect
of Redeemable Capital Stock of the Company, (e) to the extent it might
constitute Indebtedness, amounts owing for goods, materials
or services purchased in the ordinary course of business or consisting
of trade payables or other current liabilities (other than any current
liabilities owing under the Credit Agreement Obligations or the current
portion of any long-term Indebtedness which would constitute Senior
Indebtedness but for the operation of this clause (e)), (f) to the
extent it might constitute Indebtedness, amounts owed by the Company for
compensation to employees or for services rendered to the Company, (g)
to the extent it might constitute Indebtedness, any liability for
federal, state, local, foreign or other taxes owed or owing by the
Company, (h) Indebtedness of the Company to a Subsidiary of the Company
and (i) that portion of any Indebtedness of the Company which at the
time of Incurrence is Incurred in violation of this Indenture.
"Senior Representative" means the Bank Agent or any other
representatives of the holders of any class or issue of Senior
Indebtedness designated in writing to the Trustee; provided that, in the
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absence of a representative of the type described above, any holder or
holders of a majority of the principal amount outstanding of any class
or issue of Senior Indebtedness may collectively act as Senior
Representative for such class or issue.
"Senior Subordinated Indebtedness" means the Notes and any
other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Notes and is not
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subordinated by its terms to any Indebtedness or other obligation of the
Company that is not Senior Indebtedness.
"Senior Subordinated Note Obligations" means (i) any principal
of, premium, if any, and interest on, and any other amounts owing in
respect of, the Notes payable pursuant to the terms of the Notes or this
Indenture or upon acceleration of the Notes, including, without
limitation, amounts received upon the exercise of rights of rescission
or other rights of action (including claims for damages) or otherwise,
to the extent relating to the purchase price of the Notes or amounts
corresponding to such principal of,
premium, if any, interest, or other amounts owing with respect to, the
Notes and (ii) in the case of any Note Guarantor, any obligations with
respect to the foregoing or otherwise under its Note Guarantee.
"Specified Indebtedness" means (i) any Indebtedness of the
Company or any Note Guarantor that is Pari Passu Indebtedness or
Subordinated Indebtedness or (ii) any Indebtedness of any Subsidiary of
the Company that is Subordinated Indebtedness, provided, however, that
Specified Indebtedness shall never include any Credit Agreement
Obligation otherwise constituting Guarantor Senior Indebtedness.
"Stated Maturity" means, when used with respect to any
security, the date specified in such security as the fixed date on which
the payment of principal of such security is due and payable, including
pursuant to any mandatory redemption provision (but excluding any
provision providing for the purchase of such security at the option of
the holder thereof upon the happening of any contingency beyond the
control of the issuer unless such contingency has occurred).
"Subordinated Indebtedness" means (i) any Indebtedness of the
Company or any Note Guarantor (whether outstanding on the Issue Date or
thereafter Incurred) that is subordinated or junior in right of payment
to the Notes or any Note Guarantee or (ii) Indebtedness of any
Subsidiary of the Company that is subordinated or junior in right of
payment to any other Indebtedness of such Subsidiary.
"Subsidiary" of any Person means any corporation, association,
partnership, limited liability company or other business entity of which
more than 50% of the total voting power of shares of Capital Stock
(including partnership or other equity interests) generally entitled
(without the incurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) such Person or (ii) one or
more Subsidiaries of such Person.
"Surviving Entity" has the meaning set forth in Section 5.01.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trust Officer" means any officer of the Trustee with direct
responsibility for the administration of this Indenture.
"Trustee" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of
the United States of America (including any agency or instrumentality
thereof) for the payment of which the full faith and credit of the
United States of America is pledged and which are not callable or
redeemable at the issuer's option.
"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board
of directors, managers, or trustees of any Person (irrespective of
whether or not, at the time, stock of any other class or classes shall
have, or might have, voting power by reason of the happening of any
contingency).
"Warrant" means the warrants to purchase the Capital Stock of
the Company issued and sold to the purchasers of Notes pursuant to the
Note and Warrant Purchase Agreement.
"Wholly-Owned Subsidiary" means a Subsidiary of the Company
all the Capital Stock of which (other than nominal directors' qualifying
shares) is owned by the Company or another Wholly Owned Subsidiary of
the Company.
Section 1.02. Incorporation by Reference of Trust Indenture
---------------------------------------------
Act. Whenever this Indenture refers to a provision of the TIA, the
---
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture notes" means the Notes and the Note Guarantees;
"indenture noteholder" means a Noteholder or Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the indenture notes means the Company or any other
obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC
rule and not otherwise defined herein have the meanings assigned to them
therein.
Section 1.03 Rules of Construction. For all purposes of
---------------------
this Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) a term has the meaning assigned to it;
(b) words in the singular include the plural, and words in
the plural include the singular;
(c) "or" is not exclusive;
(d) provisions apply to successive events and transactions;
(e) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, as in effect from time to time unless reference
to GAAP is made with respect to any specific accounting term; and
(f) 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.
ARTICLE TWO
THE NOTES
Section 2.01 Authorized Principal Amount of Notes;
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Conditions to Issuance of Notes. The Company shall execute and issue in
-------------------------------
accordance with Section 2.03 hereof, Notes in registered form in
substantially the form of Exhibit A hereto in an aggregate principal
amount of U.S.$20,000,000. The Notes so issued shall be subject to all
of the terms, conditions and benefits of this Indenture, with the
intent that all Notes shall rank pari passu with each other. No
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additional Notes (other than Notes issued upon registration of transfer
or exchange or upon appropriate indemnification to replace lost, stolen
or mutilated Notes) may be issued under this Indenture.
Section 2.02 Forms and Dating. The Notes and the Trustee's
----------------
certificate of authentication thereon shall be in substantially the form
of Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of iden-
tification and such legends or endorsements placed thereon as may be
required to comply with any applicable law or with the rules of any
securities exchange or as may, consistently herewith, be determined by
the Officers executing such Notes, as evidenced by their execution
thereof. The Notes shall be issuable only in registered form without
coupons.
The definitive Notes and Note Guarantees shall be printed,
typewritten, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner permitted by the
rules of any securities exchange on which the Notes may be listed, all
as determined by the Officers executing such Notes, as evidenced by
their execution of such Notes. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the form of the Notes,
annexed hereto as Exhibit A shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Section 2.03 Execution and Authentication. Two Officers of
----------------------------
the Company shall execute the Notes on behalf of the Company by either
manual or facsimile signature.
If an Officer of the Company whose signature is on a Note no
longer holds that office at the time the Trustee authenticates the Note
or at any time thereafter, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized officer of the
Trustee manually signs the certificate of authentication on the Note.
Such signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall authenticate and deliver Notes only upon
receipt by the Trustee of an Officer's Certificate and Opinion of
Counsel complying with Section 12.04 hereof with respect to satisfaction
of all conditions precedent contained in this Indenture to
authentication and delivery of such Notes.
Upon compliance by the Company with the provisions of the
previous paragraph, the Trustee shall, upon receipt of the written order
of the Company signed by any two
Officers requesting such action, authenticate Notes in an aggregate
principal amount not to exceed $20,000,000. Such written order shall
specify the amount of Notes to be authenticated and shall further
provide instructions concerning registration, amount for each Holder and
delivery instructions.
With the approval of the Company, the Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Notes.
Unless limited by the terms of such appointment, an authenticating agent
may authenticate Notes whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authen-
tication by such agent. Such authenticating agent shall have the same
rights as the Trustee in any dealings hereunder with the Company or with
any of the Company's Affiliates.
Section 2.04 Registrar and Paying Agent. The Company shall
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maintain in New York City an office or agency where Notes may be
presented for registration of transfer or for exchange (the
"Registrar"), an office or agency where Notes may be presented for
payment (the "Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Registrar shall keep a register of the
Notes and of their transfer and exchange. The Company may have one or
more co-Registrars and one or more additional paying agents. The term
"Paying Agent" includes any additional paying agent. Except as
otherwise expressly provided in this Indenture, the Company or any
Affiliate thereof may act as Paying Agent.
The Company shall enter into an appropriate agency agreement
with any agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such agent.
The Company shall notify the Trustee of the name and address of any such
Agent. If the Company fails to maintain a Registrar, Paying Agent or
agent for service of notices and demands, or fails to give the foregoing
notice, the Trustee shall act as such and shall be
entitled to appropriate compensation in accordance with Section 7.08.
The Company hereby initially appoints the Trustee as
Registrar, Paying Agent and agent for service of notices and demands in
connection with the Notes.
Section 2.05 Paying Agent to Hold Money in Trust. Each
-----------------------------------
Paying Agent shall hold in trust for the benefit of the Holders or the
Trustee all money held by the Paying Agent for the payment of principal
of, premium, if any, or interest on the Notes (whether such money has
been distributed to it by the Company or any other obligor on the
Notes), and the Company and the Paying Agent shall notify the Trustee of
any default by the Company (or any other obligor on the Notes) in making
any such payment. If the Company or a Subsidiary acts as Paying Agent,
it shall segregate the money and hold it as a separate trust fund. The
Company at any time may require a Paying Agent to distribute all money
held by it to the Trustee and account for any funds disbursed and the
Trustee may at any time during the continuance of any payment default
with respect to the Notes or other Event of Default, upon written
request to a Paying Agent, require such Paying Agent to pay all money
held by it to the Trustee and to account for any funds distributed.
Upon doing so, the Paying Agent (other than an obligor under the Notes
or any Note Guarantee) shall have no further liability for the money so
paid over to the Trustee.
Section 2.06 Noteholder Lists. The Trustee shall preserve
----------------
in as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of the Holders. If the
Trustee is not the Registrar, the Company shall furnish to the Trustee
at least ten Business Days before each Interest Payment Date and at such
other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names
and addresses of Holders, which list may be conclusively relied upon by
the Trustee.
Section 2.07 Transfer and Exchange. When Notes are
---------------------
presented to the Registrar or a co-Registrar with a request to register
the transfer of such Notes or to exchange such Notes for an equal
principal amount of Notes of other authorized denominations, the
Registrar shall register the transfer or make the exchange as requested
if its requirements for such transfer or exchange are met; provided that
the Notes surrendered for registration of transfer or exchange shall be
duly endorsed or accompanied by a written instrument of transfer in form
satisfactory to the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's request. No service charge shall
be made for any registration of transfer or exchange, but the Company
may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.03, 2.08, 2.11, 3.06, 4.15,
4.16 or 9.04). The Registrar shall not be required to register the
transfer of exchange of any Note (i) during a period beginning at the
opening of business 15 days before the mailing of a notice of redemption
of Notes and ending at the close of business on the day of such mailing
and (ii) selected for redemption in whole or in part pursuant to Article
Three, except the unredeemed portion of any Note being redeemed in part.
Section 2.08 Replacement Notes. If a mutilated Note is
-----------------
surrendered to the Trustee or if the Holder of a Note claims that the
Note has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. If required by the Trustee or the
Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to
protect the Company, the Trustee or any Agent from any loss which any of
them may suffer if a Note is replaced. The Company and the Trustee may
charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Note,
including reasonable fees and expenses of counsel. Every replacement
Note is an additional obligation of the Company.
Section 2.09 Outstanding Notes. Notes outstanding at any
-----------------
time are all the Notes that have been authenticated by the Trustee
except those cancelled by it, those delivered to it for cancellation,
those described in this Section 2.09 as not outstanding and those deemed
satisfied pursuant to Article Eight. A Note does not cease to be
outstanding because the Company or any of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced
Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant
to Section 2.08.
If on a Redemption Date or a Maturity Date the Paying Agent
(other than the Company or an Affiliate of the Company) holds cash suf-
ficient to pay all of the principal, premium, if any, and interest due
on the Notes payable on that date, and is not prohibited from paying
such cash to the Holders of such Notes pursuant to the terms of this
Indenture, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue.
Section 2.10 Treasury Notes. In determining whether the
--------------
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or any of its
Affiliates shall be disregarded, except that, for the purposes of
determining whether the Trustee shall be protected in relying on any
such direction, waiver or consent, only Notes which a Trust Officer of
the Trustee knows are so owned shall be disregarded.
Section 2.11 Temporary Notes. Until definitive Notes are
---------------
prepared and ready for delivery, the Company may prepare and the Trustee
shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations
that the Company considers appropriate for temporary Notes. Without
unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Notes in exchange for temporary Notes. Until
such exchange, temporary Notes shall be entitled to the same rights,
benefits and privileges as definitive Notes.
Section 2.12 Cancellation. The Company at any time may
------------
deliver Notes to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange or payment. The Trustee, or at
the direction of the Trustee, the Registrar or the Paying Agent (other
than the Company or a Subsidiary of the Company), and no one else, shall
cancel and, unless otherwise directed in writing by the Company, shall
dispose of all Notes surrendered for transfer, exchange, payment or
cancellation in accordance with its usual procedures. Subject to
Section 2.08, the Company may not issue new Notes to replace Notes that
it has paid or delivered to the Trustee for cancellation. If the
Company shall acquire any of the Notes, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented
by such Notes unless and until the same are surrendered to the Trustee
for cancellation pursuant to this Section 2.12.
Section 2.13 Defaulted Interest. If the Company defaults on
------------------
a payment of interest on the Notes, it shall pay the defaulted interest,
plus (to the extent permitted by law) any interest payable on the
defaulted interest, in accordance with the terms hereof, to the Persons
who are Noteholders on a subsequent special record date, which date
shall be at least ten Business Days prior to the payment date. The
Company shall fix such special record date and payment date in a manner
satisfactory to the Trustee. At least 15 days before such special
record date, the Company
shall mail to each Noteholder a notice that states the special record
date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
The Company may make payment of any defaulted interest in any
other lawful manner not inconsistent with the requirements (if
applicable) of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment
pursuant to this paragraph, such manner of payment shall be deemed
practicable by the Trustee.
Section 2.14 Deposit of Moneys. On or before each Interest
-----------------
Payment Date and Maturity Date, the Company shall deposit with the
Trustee or Paying Agent in immediately available funds money sufficient
to make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, in a timely manner which permits the
Paying Agent to remit payment to the Holders on such Interest Payment
Date or Maturity Date, as the case may be; provided that the Company may
make any such deposit in next day funds on or before the Business Day
before any Interest Payment Date or Maturity Date.
Section 2.15 Computation of Interest. Interest payable on
-----------------------
the Notes shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
ARTICLE THREE
REDEMPTION OF NOTES
Section 3.01 Notices to the Trustee. If the Company elects
----------------------
to redeem Notes pursuant to Paragraphs 4(a) or (b) of the Notes, it
shall notify the Trustee of the Redemption Date and principal amount of
Notes to be redeemed.
The Company shall notify the Trustee by an Officers'
Certificate, stating that such redemption will comply with the
provisions hereof and of the Notes, of any redemption at least 30 days
before the Redemption Date (unless a shorter notice period shall be
satisfactory to the Trustee).
Section 3.02 Selection of Notes to Be Redeemed. In the event
---------------------------------
that less than all of the Notes are to be redeemed at any time, selec-
tion of such Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not
then listed on a national securities exchange, on a pro rata basis, by
lot or by such method as the Trustee shall deem fair and appropriate;
provided that no Notes of an original principal amount of $1,000 or less
shall be redeemed in part.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Notes selected for redemption and, in the
case of any Notes selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Notes shall
relate, in the case of any Note redeemed or to be redeemed only in part,
to the portion of the principal amount of such Note which has been or is
to be redeemed.
Section 3.03 Notice of Redemption. Notice of redemption
--------------------
shall be given by first-class mail, postage prepaid, mailed not less
than 30 nor more than 60 days prior to the Redemption Date to each
Holder of Notes to be redeemed, at the address of such Holder appearing
in the Note register maintained by the Registrar.
All notices of redemption shall identify the Notes to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued interest,
if any, to be paid;
(c) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date, and the only remaining right of
the Holders of such Notes is to receive payment of the Redemption Price
upon surrender to the Paying Agent of the Notes redeemed;
(d) if any Note is to be redeemed in part only, the portion
of the principal amount of such Note to be redeemed and that on and
after the Redemption Date, upon surrender for cancellation of such Note
to the Paying Agent, a new Note or Notes in the aggregate principal
amount equal to the unredeemed portion thereof will be issued without
charge to the Noteholder;
(e) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent;
(f) the CUSIP or private placement number, if any, relating
to such Notes;
(g) the paragraph of the Notes pursuant to which the Notes
are being redeemed; and
(h) that no representation is made as to the accuracy or
correctness of the CUSIP or private placement number, if any, listed in
such notice or printed on the Notes.
Notice of redemption of Notes to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company.
The notice, if mailed in the manner provided herein, shall be
conclusively presumed to have been given, whether or not the Holder
receives such notice. In any case, failure to give such notice by mail
or any defect in the notice shall not affect the validity of the
proceedings for the redemption of any Note.
Section 3.04 Effect of Notice of Redemption. Once notice of
------------------------------
redemption is mailed, Notes called for redemption become due and payable
on the Redemption Date and at the applicable Redemption Price (expressed
as percentages of principal amount). Upon surrender to the Paying
Agent, such Notes called for redemption shall be paid at the Redemption
Price, plus accrued interest, if any, to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable on the relevant Interest Payment Dates
to the Holders of record at the close of business on the relevant record
dates referred to in the Notes.
Section 3.05 Deposit of Redemption Price. On or prior to
---------------------------
any Redemption Date, the Company shall deposit with the Paying Agent an
amount of money in same day funds sufficient to pay the Redemption Price
of, and accrued interest on, all the Notes or portions thereof which are
to be redeemed on that date, other than Notes or portions thereof called
for redemption on that date which have been delivered by the Company to
the Trustee for cancellation.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price,
interest on the Notes to be redeemed will cease to accrue on and after
the applicable Redemption Date, whether or not such Notes are presented
for payment. If any Note called for redemption shall not be so paid
upon surrender thereof for redemption, the principal of and, to the
extent lawful, accrued interest thereon shall, until paid, bear interest
from the Redemption Date at the rate provided in the Notes.
Section 3.06 Notes Redeemed or Purchased in Part. Upon
-----------------------------------
surrender to the Paying Agent of a Note which is to be redeemed in part,
the Company shall execute, each Note Guarantor shall Guarantee and the
Trustee shall authenticate and deliver to the Holder of such Note
without service charge, a new Note or Notes (accompanied by a notation
of Note Guarantee, duly endorsed by each such Note Guarantor) of any
authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the unredeemed portion
of the principal of the Note so surrendered that is not redeemed.
ARTICLE FOUR
COVENANTS
Section 4.01 Payment of Notes. The Company shall pay, or
----------------
cause to be paid, the principal of, premium, if any, and interest on the
Notes on the dates and in the manner provided in the Notes and this
Indenture. An installment of principal or interest shall be considered
paid on the date due if the Trustee or Paying Agent (other than the
Company, a Subsidiary of the Company or any Affiliate of any thereof)
holds on that date money designated for and sufficient to pay the
installment and is not prohibited from paying such money to the Holders
of the Notes pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate and in the manner provided in the Notes. The Company shall pay
interest on overdue installments of interest at the same rate and in the
same manner, to the extent lawful.
Section 4.02 Maintenance of Office or Agency. The Company
-------------------------------
shall maintain in the Borough of Manhattan, The City of New York, an
office or agency where (i) the Notes and the Note Guarantees may be
surrendered for registration of transfer or exchange, (ii) the Notes and
the Note Guarantees may be presented for payment and (iii) notices
and demands to or upon the Company or any Note Guarantor in respect of
the Notes, the Note Guarantees and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee as set forth in Section 12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes and the Note Guarantees may be
presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided that no such designation or
--------
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the Borough of Manhattan, The City of
New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
The Company hereby initially designates the office of the
Trustee maintained at 450 West 33rd Street, 15th Floor, New York, New
York, as such office of the Company in accordance with this Section
4.02.
Section 4.03 Corporate Existence. Subject to Article Five,
-------------------
the Company shall do or cause to be done all things necessary to and
shall cause each of its Subsidiaries to, preserve and keep in full force
and effect the corporate, partnership or limited liability company
existence and rights (charter and statutory), licenses and/or franchises
of the Company and each of its Subsidiaries; provided that the Company
--------
or any of its Subsidiaries shall not be required to preserve any such
existence (in the case of Subsidiaries), rights, licenses or franchises
if (x) the Company shall reasonably determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company and its Subsidiaries
taken as a whole or (y) the loss thereof is not materially adverse to
the Company and its Subsidiaries taken as a whole or to the ability of
the Company to otherwise satisfy its obligations hereunder;
provided, further, however, that the foregoing shall not prohibit the
-------- ------- -------
sale, transfer or conveyance of a Subsidiary or any of its assets in
compliance with the terms of this Indenture.
Section 4.04 Payment of Taxes and Other Claims. The Company
---------------------------------
shall pay or discharge or cause to be paid or discharged, before any
penalty accrues from the failure to so pay or discharge, (a) all
material taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary of the Company or upon the income,
profits or property of the Company or any Subsidiary of the Company, and
(b) all material lawful claims for labor, materials and supplies which,
if unpaid, might by law become a Lien upon the property of the Company
or any Subsidiary except for Permitted Liens; provided, however, that
-------- -------
the Company shall not be required to pay or discharge or cause to be
paid or discharged any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted and
for which adequate provision (in the good faith judgment of management
of the Company) has been made or where the failure to effect such
payment or discharge is not adverse in any material respect to the
Holders or is not materially adverse to the Company and its Subsidiaries
taken as a whole or to the ability of the Company to otherwise satisfy
its obligations hereunder.
Section 4.05 Maintenance of Properties. The Company shall,
-------------------------
and shall cause each of its Subsidiaries to, cause all material
properties and assets to be maintained and kept in good condition,
repair and working order (ordinary wear and tear excepted) and supplied
with all necessary equipment, and shall cause to be made all necessary
repairs, renewals, replacements, additions, betterments and improvements
thereto, as shall be reasonably necessary for the proper conduct of its
business; provided that nothing in this Section 4.05 shall prevent the
Company or
any Subsidiary of the Company from discontinuing the operation and main-
tenance of any of its properties (x) if such discontinuance is, in the
judgment of the Company or of such Subsidiary, desirable in the conduct
of its business or (y) if such discontinuance or disposal is not
materially adverse to the Company and its Subsidiaries taken as a whole
or the ability of the Company to otherwise satisfy its obligations
hereunder.
Section 4.06 Compliance Certificate; Notice of Default.
------------------------------------------
(a) The Company shall deliver to the Trustee within 90 days after the
end of each fiscal year an Officers' Certificate stating whether or not
the signers know of any Default or Event of Default under this Indenture
that occurred during such fiscal period. If they do know of such a
Default or Event of Default, the certificate shall describe any such
Default or Event of Default and its status. One of the persons signing
the Officers' Certificate given pursuant to this Section 4.06 shall be
the principal executive, financial or accounting officer of the Company,
in compliance with TIA Section 314(a)(4).
(b) The Company shall deliver to the Trustee as soon as
possible, and in any event within 30 days after the Company becomes
aware or should reasonably have become aware of the occurrence of any
Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.07 Waiver of Stay, Extension or Usury Laws. The
---------------------------------------
Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or
any usury law or other law which would prohibit or forgive the Company
from paying all or any portion of the principal of, premium, if any, or
interest on the Notes as contemplated herein, wherever enacted, now or
at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture; and (to the extent that it may lawfully
do so)
the Company hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had
been enacted.
Section 4.08 Limitation on Indebtedness. The Company shall
--------------------------
not, and shall not permit any Subsidiary of the Company to, Incur any
Indebtedness other than the following:
(i) Indebtedness of the Company under the Credit Agreement;
(ii) Indebtedness of the Company pursuant to the Notes and
Indebtedness of any Note Guarantor pursuant to its Note Guarantee;
(iii) Indebtedness of the Company or any Subsidiary
outstanding on the Issue Date and listed on Schedule 2 to this
Indenture (other than Indebtedness under or in respect of the
Credit Agreement);
(iv) Indebtedness of the Company owing to and held by any
Wholly-Owned Subsidiary or Indebtedness of a Wholly-Owned
Subsidiary owing to and held by the Company or any Wholly-Owned
Subsidiary; provided, however, that (x) any such Indebtedness is
made pursuant to an intercompany note, (y) any such Indebtedness of
the Company is Subordinated Indebtedness that is subordinated to
the Notes as provided in such intercompany note, and in any event
at least to the same extent as the Notes are subordinated to Senior
Indebtedness, and (z) any subsequent transfer of any such
Indebtedness (except to the Company or a Subsidiary of the Company)
will be deemed, in each case, to constitute the Incurrence of such
Indebtedness by the issuer thereof;
(v) Obligations of the Company or any Wholly-Owned Subsidiary
entered into in the ordinary course of
business (A) under Interest Rate Agreements designed to protect
such Person against fluctuations in interest rates in respect of
Indebtedness of such Person permitted to be incurred under this
Indenture, which obligations do not exceed the aggregate principal
amount of such Indebtedness, and (B) under Currency Agreements
designed to protect such Person against fluctuations in foreign
currency exchange rates in respect of foreign exchange exposures
incurred by such Person;
(vi) Indebtedness of the Company or any Wholly-Owned
Subsidiary Incurred subsequent to a Public Offering to the extent
that, after giving effect to such Incurrence, the Consolidated
Coverage Ratio would be greater than 2.1;
(vii) Any renewals, extensions, substitutions, refinancings
or replacements (each, for purposes of this Section 4.08 and
Section 4.14(c), a "refinancing") of any Indebtedness described in
clause (i), (ii), (iii) or (iv) of this Section 4.08, including any
successive refinancings, so long as (A) any such new Indebtedness
shall be in principal amount that does not exceed the principal
amount (or, if such Indebtedness being refinanced provides for an
amount less than the principal amount thereof to be due and payable
upon a declaration of acceleration thereof, such lesser amount as
of the date of determination) so refinanced plus the lesser of (I)
the stated amount of any premium or other payment required to be
paid in connection with such a refinancing pursuant to the terms of
the Indebtedness being refinanced and (II) the amount of premium or
other payment actually paid at such time to refinance the
Indebtedness, plus, in either case, the amount of expenses of the
Company or a Subsidiary of the Company incurred in connection with
such refinancing; (B) in the case of any refinancing of Pari Passu
Indebtedness or Subordinated Indebtedness, such new Indebtedness is
made pari passu with or subordinate in right of payment to the
---- -----
Notes and the Note Guarantees, as applicable, at
least to the same extent as the Indebtedness being refinanced; and
(C) such new Indebtedness has an Average Life equal to or longer
than the Average Life of the Indebtedness being refinanced and a
final Stated Maturity the same as or later than the final Stated
Maturity of the Indebtedness being refinanced,
provided, however, that the aggregate principal amount of all
-------- -------
Indebtedness permitted to be Incurred pursuant to clauses (i) and (iii)
of this Section 4.08, together with the aggregate principal amount of
any renewal, extension, substitution, refinancing or replacement
thereof, at any time outstanding shall not exceed $9.4 million.
Section 4.09 Limitation on Restricted Payments. The
---------------------------------
Company shall not, and shall not permit any Subsidiary of the Company
to, directly or indirectly:
(i) declare or pay any dividend or make any other
distribution or payment on or in respect of Capital Stock of the
Company (including any payment in connection with any merger or
consolidation involving the Company or any Subsidiary of the
Company ), or any other payment to the direct or indirect holders
of Capital Stock of the Company in their capacity as such, except
dividends or distributions payable solely in Capital Stock of the
Company (other than Redeemable Capital Stock);
(ii) declare or pay any dividend or make any other
distribution or payment on or in respect of Capital Stock of any
Subsidiary of the Company (including any payment in connection with
any merger or consolidation involving the Company or any Subsidiary
of the Company), or any other payment to the direct or indirect
holders of Capital Stock of any Subsidiary of the Company in their
capacity as such, except dividends or distributions payable solely
to the Company or any Wholly-Owned Subsidiary of the Company;
(iii) purchase, redeem, defease or otherwise acquire or retire
for value any Capital Stock of the Company or any Subsidiary of the
Company held by Persons other than the Company or a Subsidiary of
the Company, except from all holders of such Capital Stock of a
Subsidiary of the Company on a pro rata basis;
(iv) make any principal payment on, or purchase, defease,
repurchase, redeem or otherwise acquire or retire for value, prior
to any scheduled maturity, scheduled repayment, scheduled sinking
fund payment or other Stated Maturity, any Subordinated
Indebtedness or any Pari Passu Indebtedness of the Company or any
Subsidiary of the Company (other than in anticipation of satisfying
a sinking fund obligation, principal installment or final maturity,
in each case due within one year of the date of such acquisition or
retirement); or
(v) make any Investment (other than any Permitted
Investment) in any Person (any such dividend, distribution,
purchase, redemption, repurchase, defeasance, other acquisition,
retirement or Investment being herein referred to as a "Restricted
Payment");
if at the time of and after giving effect to such Restricted Payment on
a pro forma basis, (1) a Default or Event of Default shall have occurred
and be continuing or would result therefrom; or (2) the Company could
not Incur at least $1.00 of additional Indebtedness under Section 4.08;
or (3) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made from and after the Issue Date would
exceed, without duplication, the sum of:
(A) 50% of the Consolidated Net Income accrued during the
period (treated as one accounting period) from October 1, 1996 to
the end of the most recent fiscal quarter ending prior to the date
of such Restricted Payment for which consolidated financial
statements of the Company are available (or, if such
Consolidated Net Income for such period would be a deficit, minus
100% of such deficit); and
(B) the aggregate Net Cash Proceeds received by the
Company either (x) as capital contributions in the form of common
equity to the Company after the Issue Date or (y) from the issuance
or sale of Capital Stock (other than Redeemable Capital Stock) of
the Company after the Issue Date, other than to a Subsidiary of the
Company.
Section 4.10 Limitation on Transactions with Affiliates.
------------------------------------------
(a) The Company shall not, and shall not permit any Subsidiary of the
Company to, directly or indirectly, conduct any business, enter into or
suffer to exist any transaction or series of related transactions
(including the purchase, sale, conveyance, disposition, lease or
exchange of any property, the rendering of any service or the making of
any loan or advance) with, or for the benefit of, any Affiliate of the
Company (an "Affiliate Transaction") unless (i) such Affiliate
Transaction is on terms no less favorable to the Company or such
Subsidiary than those that could be obtained at the time of such
Affiliate Transaction in a comparable arm's length transaction with a
Person who is not an Affiliate of the Company, and (ii) in the event
such an Affiliate Transaction (together with any one or more related
Affiliated Transaction) involves aggregate payments or value of $500,000
or greater, (x) a majority of the Board of Directors of the Company,
including a majority of the Disinterested Directors (if any), have
determined in good faith that the criteria set forth in clause (i) are
satisfied and have approved the relevant Affiliate Transaction, such
approval to be evidenced by a Board Resolution, and (iii) in the event
that such Affiliate Transaction occurs prior to the time when the
Company has appointed a Disinterested Director and such Affiliate
Transaction (together with all prior or contemporaneous Affiliate
Transactions) involves aggregate payments or value of $1,500,000 or
greater, the Company has obtained a written opinion of an investment
banking firm or an independent
appraiser or accounting firm, in either case that is nationally
recognized in the United States of America, stating that the terms of
such Affiliate Transaction are fair to the Company and its Subsidiaries
from a financial point of view (a "Fairness Opinion"), and (iv) in the
event that such Affiliate Transaction occurs subsequent to the time when
the Company has appointed a Disinterested Director and such Affiliate
Transaction (together with any one or more related Affiliated
Transaction with the same Affiliate) involves aggregate payments or
value of $2,500,000 or greater, the Company has obtained a Fairness
Opinion, and (v) the Company has delivered to the Trustee an Officers'
Certificate certifying that such Affiliate Transaction complies with the
foregoing clause (i), and that, if required by the foregoing clause
(ii), (iii) or (iv), such Affiliate Transaction has been approved by the
Board of Directors (including a majority of the Disinterested Directors)
or the Company has obtained a Fairness Opinion with respect thereto,
together with copies of the relevant Board Resolution or Fairness
Opinion.
(b) The foregoing paragraph (a) will not apply to: (i) any
transaction permitted as a Restricted Payment pursuant to Section 4.09,
(ii) the payment of reasonable and customary regular fees to directors
of the Company and its Subsidiaries who are not employees of the Company
or its Subsidiaries, (iii) any transaction between the Company and a
Wholly Owned Subsidiary or between Wholly Owned Subsidiaries, (iv) any
transaction with an officer or member of the board of directors of the
Company or any Subsidiary of the Company in the ordinary course of
business involving indemnity arrangements, and (v) the payment of any
salary or other employee benefits by the Company or any of its
Subsidiaries during any fiscal year of the Company to any officer or
director of the Company or any of its Subsidiaries who is also an
Affiliate of the Company to the extent (and only to the extent) that the
aggregate amount of such salary and benefits paid in such fiscal year
does not exceed the Maximum Amount for such fiscal year.
Section 4.11 Limitation on Certain Liens. The Company shall
---------------------------
not, and shall not permit any Subsidiary of the Company to, directly or
indirectly, create, incur, assume or suffer to exist any Lien (other
than any Permitted Lien) on or with respect to any of its property or
assets (including any Capital Stock), whether held on the Issue Date or
thereafter acquired, or any income, profits or proceeds therefrom,
securing any Specified Indebtedness, unless effective provision is made
contemporaneously therewith to secure the Notes and the Note Guarantees,
as applicable, (i) in the case of a Lien securing Subordinated
Indebtedness, by a perfected Lien on such property, assets, income,
profits or proceeds that is senior in priority to such Lien securing
such Subordinated Indebtedness, or (ii) in the case of a Lien securing
any other Specified Indebtedness, equally and ratably with (or prior to)
such Lien securing such Indebtedness.
Section 4.12 Limitation on Other Senior Subordinated
---------------------------------------
Indebtedness. The Company shall not, and shall not permit any
------------
Subsidiary of the Company to, directly or indirectly, Incur any
Indebtedness that is subordinate or junior in right of payment in any
respect to any other Indebtedness, unless such Indebtedness is expressly
subordinate in right of payment to, or ranks pari passu with, the Notes,
in the case of the Company, or the Note Guarantees, in the case of a
Subsidiary.
Section 4.13 Limitation on the Sale or Issuance of Preferred
-----------------------------------------------
Stock of Subsidiaries. The Company shall not sell, and shall not permit
---------------------
any Subsidiary of the Company to, directly or indirectly, issue or sell,
any shares of Preferred Stock of any Subsidiary of the Company except
(i) to the Company or a Subsidiary of the Company, or to directors as
director's qualifying shares to the extent required by applicable law,
or (ii) if, immediately after giving effect to such issuance or sale,
such Subsidiary would no longer constitute a Subsidiary. The proceeds
of any sale of such Preferred Stock permitted by the preceding clause
(ii) will be treated as Net Cash Proceeds from an
Asset Sale and must be applied in accordance with the terms of
Section 4.15.
Section 4.14 Limitation on Dividend and Other Payment
----------------------------------------
Restrictions Affecting Subsidiaries. The Company shall not, and shall
-----------------------------------
not permit any Subsidiary of the Company to, directly or indirectly,
create, incur, assume or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any
Subsidiary of the Company to (i) pay, directly or indirectly, dividends,
in cash or otherwise, or make any other distribution on or in respect of
its Capital Stock or any other interest or participation in, or measured
by, its profits, (ii) pay any Indebtedness owed to the Company or any
other Subsidiary of the Company, (iii) make loans or advances to the
Company or any other Subsidiary of the Company, (iv) transfer any of its
properties or assets to the Company or any other Subsidiary of the
Company (other than any customary restriction on transfers of property
subject to a Lien permitted under this Indenture that would not
adversely affect the Company's ability to satisfy its obligations
hereunder) or (v) Guarantee any Indebtedness of the Company or any other
Subsidiary of the Company, except for such encumbrances or restrictions
existing under or by reason of (a) applicable law, (b) the Credit
Agreement or (c) any agreement or other instrument of a Person acquired
by the Company or any Subsidiary of the Company in existence at the time
of such acquisition (but not created in contemplation thereof), or any
refinancing thereof, which encumbrance or restriction is not applicable
to any Person, or the properties or assets of any Person, other than the
Person, or the property or assets of the Person, so acquired.
Section 4.15 Limitation on Disposition of Proceeds of Asset
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Sales. The Company shall not, and shall not permit any Subsidiary of
-----
the Company to, engage in any Asset Sale unless (i) such Asset Sale is
for not less than the Fair Market Value of the assets sold (as
determined, to the extent such Asset Sale involves a Fair Market Value
greater than $2,000,000, in good faith by the
Board of Directors whose determination shall be conclusive and evidenced
by a Board Resolution) and (ii) at least 80% of the consideration
thereof received by the Company or such Subsidiary is in the form of
cash or Cash Equivalents (with Indebtedness of the Company or any
Subsidiary of the Company which is assumed by another Person in such
Asset Sale being counted as cash for such purpose if the Company and
each Subsidiary of the Company, as the case may be, is unconditionally
released from liability therefor). Net Cash Proceeds of any Asset Sale
may be applied to repay Senior Indebtedness (but only if the related
loan commitments (if any) or amounts available to be reborrowed (if any)
under such Senior Indebtedness are permanently reduced by the amount of
such payment). To the extent that such Net Cash Proceeds are not
applied as provided in the preceding sentence, the Company or a
Subsidiary of the Company, as the case may be, may apply the Net Cash
Proceeds from such Asset Sale, within 180 days of such Asset Sale, to an
investment in properties and assets to replace the properties and assets
that were the subject of such Asset Sale or in properties and assets
that will be used in the businesses of the Company or its Subsidiaries,
as the case may be, existing on the Issue Date or in any business or
businesses reasonably similar to such businesses. Any Net Cash Proceeds
from any Asset Sale not applied as provided in the preceding two
sentences, within 180 days of such Asset Sale, constitute "Excess
Proceeds" subject to disposition as provided below.
(b) When the aggregate amount of Excess Proceeds exceeds
$2,000,000 the Company shall make an offer to purchase (an "Excess
Proceeds Offer") from all Noteholders an aggregate principal amount of
Notes equal to such Excess Proceeds, at a purchase price (the "Excess
Proceeds Offer Price") in cash equal to 100% of the outstanding
principal amount thereof, plus accrued and unpaid interest, if any, to
the purchase date in respect of the Excess Proceeds Offer in accordance
with the procedures set forth in this Section 4.15. To the extent that
the aggregate principal amount of Notes tendered pursuant to an Excess
Proceeds Offer is less
than the Excess Proceeds, the Company may use such deficiency for
general corporate purposes.
(c) (1) Within 15 Business Days after the Company becomes
obligated to make an Excess Proceeds Offer, the Company shall deliver to
the Trustee and send, by first-class mail to each Holder, a written
notice stating that the Holder may elect to have his Notes purchased by
the Company either in whole or in part (subject to prorating as
hereinafter described in the event the Excess Proceeds Offer is
oversubscribed) at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor more than 60 days
after the date of such notice, or such later date as may be necessary
for the Company to comply with the requirements under the Exchange Act
(an "Excess Proceeds Purchase Date"), and shall contain such information
concerning the business of the Company which the Company in good faith
believes will enable such Holders to make an informed decision.
(2) Not later than the date upon which written notice of an
Excess Proceeds Offer is delivered to the Trustee as provided below, the
Company shall deliver to the Trustee an Officers' Certificate as to (i)
the amount of the aggregate Excess Proceeds Offer Price for the Notes,
(ii) the allocation of the Net Cash Proceeds from the Asset Sales
pursuant to which such Excess Proceeds Offer is being made and (iii) the
compliance of such allocation with the provisions of Section 4.15(a).
On or prior to the Excess Proceeds Purchase Date, the Company shall also
irrevocably deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own paying agent, segregate and hold in trust)
in Cash Equivalents an amount equal to the aggregate Excess Proceeds
Offer Price for the Notes to be held for payment in accordance with the
provisions of this Section 4.15. Upon the expiration of the period for
which the Excess Proceeds Offer remains open (the "Offer Period"), the
Company shall deliver to the Trustee for cancellation the Notes or
portions thereof which have been properly tendered to and are to be
accepted by the Company. The Trustee shall, on the Excess Proceeds
Purchase Date, mail or
deliver payment to each tendering Holder in the amount of the purchase
price. In the event that the aggregate purchase price of the Notes
delivered by the Company to the Trustee is less than the aggregate
Excess Proceeds Offer Price for the Notes, the Trustee shall deliver the
excess to the Company promptly after the expiration of the Offer Period
for application in accordance with this Section 4.15.
(3) Holders electing to have a Note purchased will be
required to surrender the Note with an appropriate form duly completed,
to the Company at the address specified in the notice at least three
Business Days prior to the Excess Proceeds Purchase Date. Holders will
be entitled to withdraw their election to have a Note purchased pursuant
to this Section 4.15 if the Trustee or the Company receives not later
than one Business Day prior to the Excess Proceeds Purchase Date, a
telegram, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Note which was delivered for
purchase by the Holder, the certificate number of the Note in respect of
which such notice of withdrawal is being submitted and a statement that
such Holder is withdrawing his election to have such Note purchased. If
at the expiration of the Offer Period the aggregate principal amount of
Notes surrendered by Holders exceeds the aggregate Excess Proceeds Offer
Price for the Notes, the Company shall select the Notes to be purchased
on a pro rata basis. Holders whose Notes are purchased only in part
will be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
(4) At the time the Company delivers Notes to the Trustee
which are to be accepted for purchase, the Company shall also deliver an
Officers' Certificate stating the such Notes are to be accepted by the
Company pursuant to and in accordance with the terms of this Section
4.15. A Note shall be deemed to have been accepted for purchase at the
time the Trustee, directly or through an agent, mails or delivers
payment therefor to the surrendering Holder.
(d) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in connection
with the repurchase of Notes pursuant to this covenant. To the extent
that the provisions of any securities laws or regulations conflict with
provisions of this covenant, the Company shall comply with the
applicable securities laws and regulations and will not be deemed to
have breached its obligations under this paragraph by virtue thereof.
Section 4.16 Change of Control. Upon the occurrence of a
-----------------
Change of Control, each Noteholder shall have the right to require the
Company to repurchase all or any part of such Holder's Notes at a
purchase price in cash equal to 101% of the principal amount thereof,
plus accrued and unpaid interest, if any, to the date of purchase
(subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), in
accordance with the terms set forth in this covenant.
(b) A "Change of Control" means the occurrence of any of the
following events:
(i) prior to an initial Public Equity Offering, Fred
Gratzon and Clifford Rees cease collectively to be the Beneficial
Owners, directly or indirectly, of Voting Stock of the Company
representing more than 50% of the total voting power of the Voting
Stock of the Company (as a result of the acquisition or issuance of
securities, by merger or otherwise);
(ii) at any time after an initial Public Equity Offering,
any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than Fred Gratzon and
Clifford Rees, is or becomes (as the result of the acquisition or
issuance of securities, by merger or otherwise) the Beneficial
Owner, directly or indirectly, of (A) more than 50% of the common
stock of the Company or (B) more than 50% of the total voting power
of the Voting Stock of the Company;
(iii) the merger or consolidation of the Company with or into
another Person, or of another Person with or into the Company, or
the sale, assignment, conveyance, transfer, lease or other
disposition of all or substantially all the assets of the Company
to another Person, and, in the case of any such merger or
consolidation, the securities of the Company that are outstanding
immediately prior to such transaction and that represent 100% of
the aggregate voting power of the Voting Stock of the Company are
changed into or exchanged for cash, securities or property, unless
(x) pursuant to such transaction such securities are changed into
or exchanged for (A) Voting Stock (other than Redeemable Capital
Stock) of the surviving or transferee corporation or (B) cash,
securities and other property in an amount that could be paid by
the Company as a Restricted Payment under this Indenture, and
(y) immediately after giving effect to such transaction, the
Beneficial Owners of the Voting Stock of the Company immediately
prior to such transaction are or become (as the result of the
acquisition or issuance of securities, by merger or otherwise) the
Beneficial Owners, directly or indirectly, of more than 50% of the
total voting power of the Voting Stock of the surviving or
transferee corporation;
(iv) [Intentionally Omitted]; or
(v) prior to an initial Public Equity Offering, Clifford
Rees ceases to be the President and Chief Executive Officer and a
Director of the Company, or ceases or becomes unable to exercise
his duties as such for any consecutive 120 day period or for more
than 120 days in the aggregate during any consecutive 180 day
period (as a result of death or incapacity); or
(vi) prior to an initial Public Equity Offering, Clifford
Rees ceases to be the President and Chief Executive Officer and a
Director of the Company, or ceases or becomes unable to exercise
his duties as such for any consecutive 30 day period or for more
than 30
days in the aggregate during any consecutive 120 day period (as a
result of termination, resignation or any other reason not
specified in Section 4.16(v) hereof.
(c) Prior to the mailing of the notice to Holders provided
for in paragraph (d) below, the Company shall have (x) terminated all
commitments and repaid in full all Indebtedness under the Credit
Agreement and all other Credit Agreement Obligations then due and owing,
or (y) obtained the requisite consents under the Credit Agreement to
permit the purchase of the Notes as provided for under this covenant.
If a notice has been mailed when such condition precedent has not been
satisfied, the Company shall have no obligation to (and shall not)
effect the purchase of Notes until such time as such condition precedent
is satisfied. Failure to mail the notice on the date specified below or
to have satisfied the foregoing condition precedent by the date that the
notice is required to be mailed shall in any event constitute a covenant
default under Section 6.01(iv).
(d) Within 30 days following any Change of Control (or at
the Company's option, prior to such Change of Control, in anticipation
of such Change of Control), the Company shall send by first class mail a
written notice to each Holder at its registered address with a copy to
the Trustee stating: (1) that a Change of Control has occurred (or will
occur) and that such Holder has the right to require the Company to
purchase such Holder's Notes at a purchase price in cash equal to 101%
of the principal amount thereof, plus accrued and unpaid interest, if
any, to date of repurchase (subject to the right of Holders of record on
a record date to receive interest on the relevant interest payment
date); (2) the circumstances and relevant facts and financial
information regarding such Change of Control; (3) the repurchase date
(which shall be no earlier than 30 days nor later than 60 days from the
date such notice is mailed); (4) the instructions determined by the
Company, consistent with this covenant, that a Holder must follow in
order to have its Notes purchased; and (5) that, if such offer is made
prior to such Change of Control, payment is conditioned on the
occurrence of such Change of Control.
(e) Holders electing to have a Note purchased will be
required to surrender the Note, with an appropriate form duly completed,
to the Company at the address specified in the notice at least three
Business Days prior to the repurchase date. Holders will be entitled to
withdraw their election if the Trustee or the Company receives not later
than two Business Days prior to the purchase date, a telegram, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Note which was delivered for purchase by the
Holder, the certificate number of the Note in respect of which such
notice of withdrawal is being submitted and a statement that such Holder
is withdrawing his election to have such Notes purchased.
(f) On the purchase date, all Notes purchased by the Company
under this Section shall be delivered to the Trustee for cancellation,
and the Company shall pay the purchase price plus accrued and unpaid
interest, if any, to the Holders entitled thereto.
(g) The Company shall comply, to the extent applicable, with
the requirements of Section 14(e) under the Exchange Act and any other
securities laws or regulations in connection with the repurchase of
Notes pursuant to this covenant. To the extent that the provisions of
any securities laws or regulations conflict with provisions of this
covenant, the Company shall comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations
under this paragraph by virtue thereof.
Section 4.17 Financial Statements and Reports. The Company
--------------------------------
will maintain, and will cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with
sound business practices to permit preparation of financial statements
in conformity with GAAP. The Company will deliver to the Trustee, and
to each Holder at its address appearing in the register of securities
maintained by the Registrar, the financial statements and other reports
described below:
(i) Monthly Financials. As soon as available and in any event
------------------
within 30 days after the end of each month ending after the Closing
Date: (A) copies of the internal financial reports, with respect to the
consolidated statements of income and stockholders' equity and cash flow
for such month and consolidated balance sheet balances at the end of
such month, delivered to members of the Company's management, and (B) a
schedule of the outstanding Indebtedness for borrowed money of the
Company and its Subsidiaries describing in reasonable detail each such
debt issue or loan outstanding and the principal amount (excluding
original issue discount) and amount of accrued and unpaid interest with
respect to each such debt issue or loan;
(ii) Quarterly Financials. As soon as available and in any event
--------------------
within 45 days after the end of each fiscal quarter (other than the last
quarter of any fiscal year): (A) the consolidated balance sheet of the
Company and its Subsidiaries as at the end of such fiscal quarter and
the related consolidated statements of income and stockholders' equity
and cash flows for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal
quarter, all in reasonable detail and certified by the chief financial
officer of the Company that they fairly present the financial condition
of the Company and its Subsidiaries as at the dates indicated and the
results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments, and (B) a schedule of the outstanding Indebtedness for
borrowed money of the Company and its Subsidiaries describing in
reasonable detail each such debt issue or loan outstanding and the
principal amount (excluding original issue discount) and amount of
accrued and unpaid interest with respect to each such debt issue or
loan;
(iii) Year-End Financials. As soon as available and in any event
-------------------
within 90 days after the end of each fiscal year, the Company will
deliver: (A) the consolidated balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, shareholders' equity and cash flows
of the Company and its Subsidiaries for such fiscal year, (B) a
narrative report describing the operations of the Company and its
Subsidiaries in the form prepared for presentation to senior management
for such fiscal year, (C) a schedule of the outstanding Indebtedness for
borrowed money of the Company and its Subsidiaries describing in reason-
able detail each such debt issue or loan outstanding and the principal
amount (excluding original issue discount) of accrued and unpaid
interest with respect to each such debt issue or loan, and (D) in the
case of such consolidated financial statements, a report thereon of KPMG
Peat Marwick or other independent certified public accountants of
recognized national standing selected by the Company, which report shall
be unqualified, shall express no doubts about the ability of the Company
and its Subsidiaries to continue as a going concern, and shall state
that such consolidated financial statements fairly present the
consolidated financial position of the Company and its Subsidiaries as
of the dates indicated and the results of their operations,
shareholders' equity and their cash flows for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that
the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with United States
generally accepted auditing standards;
(iv) Promptly upon receipt thereof, copies of any financial or
other report or notice delivered to, or received from, any holders of
Senior Indebtedness pursuant to the Credit Agreement (or any similar
provision contained in any successor agreements) or any
other debt instrument not otherwise delivered to the Holders pursuant to
this Section 4.17;
(v) 30 days prior to each fiscal year, copies of monthly operation
projections for the succeeding fiscal year; and
(vi) such other financial or other information as from time to
time may be reasonably requested by the Trustee.
Section 4.18 Investment Company Act. Neither the Company
----------------------
nor any of its Subsidiaries shall become an investment company subject
to registration under the Investment Company Act of 1940, as amended.
Section 4.19 Insurance. The Company shall, and shall cause
---------
each of its Subsidiaries to, maintain liability, casualty, business
interruption and other insurance with a reputable insurer or insurers in
such amounts and against such risks as is carried by responsible
companies engaged in similar businesses and owning similar assets.
Section 4.20 Compliance with Laws; Maintenance of Licenses.
---------------------------------------------
The Company shall, and shall cause each of its Subsidiaries to, comply
with all statutes, ordinances, governmental rules and regulations,
judgments, orders and decrees (including all Environmental Laws) to
which any of them is subject, and maintain, obtain and keep in effect
all licenses, permits, franchises and other governmental authorizations
necessary to the ownership or operation of their respective properties
or the conduct of their respective businesses, except to the extent that
the failure to so comply or maintain, obtain and keep in effect could
not, singly or in the aggregate, be expected to have a Material Adverse
Effect.
Section 4.21 Information to Prospective Purchasers. The
-------------------------------------
Company shall, upon the request of any Holder, deliver to such Holder
and any prospective purchaser designated by such Holder promptly
following the request of
such Holder or such prospective purchaser such information which such
Holder or such prospective purchaser may reasonably request in order to
comply with the information requirements of Rule 144A under the
Securities Act.
Section 4.22 Private Placement Number. The Company consents
------------------------
to the filing of copies of this Indenture with S&P to obtain a private
placement number and with the National Association of Insurance
Commissioners.
Section 4.23 Future Note Guarantors. (a) The Company
----------------------
shall, within thirty (30) days of the Issue Date, cause each of its
current Wholly-Owned Subsidiaries to execute and deliver to the Trustee
a supplemental indenture pursuant to which each such entity shall
guarantee payment of the Notes on substantially the same terms as set
forth in Article Ten of this Indenture. Each Note Guarantee shall be
limited to an amount not to exceed the maximum amount that can be
guaranteed by that Wholly-Owned Subsidiary without rendering the Note
Guarantee, as it relates to such Wholly-Owned Subsidiary, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer
or similar laws affecting the rights of creditors generally.
(b) The Company shall, simultaneously to the formation or
acquisition of any Wholly-Owned Subsidiary in the future, cause such
Wholly-Owned Subsidiary to execute and deliver to the Trustee a
supplemental indenture pursuant to which such Wholly-Owned Subsidiary
shall guarantee payment of the Notes on substantially the same terms as
set forth in Article Ten of this Indenture with respect to the Note
Guarantee of each of the Company's Wholly-Owned Subsidiaries who are
executing and delivering Note Guarantees on the Issue Date. Each Note
Guarantee shall be limited to an amount not to exceed the maximum amount
that can be guaranteed by that Subsidiary without rendering the Note
Guarantee, as it relates to such Subsidiary, voidable under applicable
law relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01 Merger, Consolidation and Sale of Assets. The
----------------------------------------
Company shall not, in any transaction or series of related transactions,
merge or consolidate with or into, or sell, assign, convey, transfer,
lease or otherwise dispose of all or substantially all of its properties
and assets to, any Person or Persons, and the Company shall not permit
any Subsidiary of the Company to enter into any such transaction or
series of transactions if such transaction or series of transactions, in
the aggregate, would result in a sale, assignment, conveyance, transfer,
lease or other disposition of all or substantially all of the properties
and assets of the Company or of the Company and its Subsidiaries on a
consolidated basis to any other Person or Persons, unless at the time of
and immediately after giving effect thereto (i) either (A) if the
transaction or transactions is a merger or consolidation, the Company
shall be the surviving Person of such merger or consolidation, or (B)
the Person formed by such consolidation or into which the Company or
such Subsidiary is merged or to which the properties and assets of the
Company or such Subsidiary, as the case may be, substantially as an
entirety, are sold, assigned, transferred, leased or otherwise disposed
of (any such surviving Person or transferee Person being the "Surviving
Entity") shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of
Columbia and shall expressly assume by a supplemental indenture executed
and delivered to the Trustee, in form and substance satisfactory to the
Trustee and the holders of a majority in aggregate principal amount of
the Notes then outstanding, all the obligations of the Company under the
Notes and this Indenture, and in each case, this Indenture shall remain
in full force and effect; and (ii) immediately after giving effect to
such transaction or series of related transactions on a pro forma basis
(including, without limitation, any Indebtedness Incurred or anticipated
to be Incurred in connection with or in respect of such transaction or
series
of transactions), (x) no Default or Event of Default shall have occurred
and be continuing, (y) the Company or the Surviving Entity, as the case
may be, could Incur $1.00 of additional Indebtedness pursuant to
Section 4.08 and (z) the Consolidated Net Worth of the Surviving Entity
is greater than the Consolidated Net Worth of the Company prior to
giving effect to such transaction or series of related transactions.
In connection with any consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition
contemplated hereby, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, sale, assignment, conveyance,
transfer, lease or other disposition and the supplemental indenture in
respect thereof comply with the requirements under this Indenture. In
addition, each Note Guarantor, unless it is the other party to the
transaction, will be required to confirm, by supplemental indenture,
that its Note Guarantee will apply to the obligations of the Company or
the Surviving Entity under this Indenture.
Section 5.02 Successor Substituted. Upon any consolidation
---------------------
or merger or any sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.01 in which the Company is not the continuing
obligor under this Indenture, the Surviving Entity shall succeed to, and
be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor
had been named as the Company herein, and thereafter the predecessor
Person shall be relieved of all obligations under this Indenture and the
Notes, except that the predecessor Person in the case of a transfer by
lease will not be released from the obligation to pay the principal of,
premium, if any, and interest on the Notes.
For all purposes of this Indenture and the Notes (including
the provision of this Section 5.02 and
Sections 4.08, 4.09 and 4.11) all Indebtedness, and all Liens on
property or assets, of the Surviving Entity and its Subsidiaries (other
than Indebtedness, and Liens on property or assets, of the Company and
its Restricted Subsidiaries outstanding immediately prior to such
transaction or series of related transactions) shall be deemed to have
been Incurred upon such transaction or series of related transactions.
ARTICLE SIX
REMEDIES
Section 6.01 Events of Default. An "Event of Default" means
-----------------
any of the following events:
(i) default in the payment of principal of, or premium, if any,
when due and payable, on any of the Notes (at its Stated Maturity,
upon optional redemption, required repurchase, or otherwise); or
(ii) default in any payment of an installment of interest on
any of the Notes when due and payable, for 30 days; or
(iii) failure to perform or comply with Section 5.01; or
failure to offer to repurchase or to repurchase the Notes in the
event of a Change of Control in accordance with Section 4.16; or
(iv) the Company or any Note Guarantor shall fail to perform
or observe any other term, covenant or agreement contained in the
Notes, any Note Guarantee, the Warrants, the Registration Rights
Agreement or this Indenture (other than a Default specified in
clause (i), (ii) or (iii) of this Section 6.01) for a period of 45
days after written notice of such failure requiring the Company to
remedy the same shall have been given (x) to the Company by the
Trustee or (y) to the Company and the Trustee by the Holders of at
least
25% in aggregate principal amount of the Notes then outstanding; or
(v) default or defaults under one or more mortgages, bonds,
debentures or other evidences of Indebtedness under which the
Company or any Subsidiary of the Company then has outstanding
Indebtedness in excess of $1,000,000, individually or in the
aggregate, and either (a) such a principal amount of such
Indebtedness is already due and payable in full or (b) such default
or defaults have resulted in the acceleration of the maturity of
such Indebtedness; or
(vi) one or more judgments, orders or decrees of any court or
regulatory or administrative agency of competent jurisdiction for
the payment of money in excess of $2,000,000, either individually
or in the aggregate, shall be entered against the Company or any
Subsidiary of the Company or any of their respective properties and
shall not be discharged or fully bonded and either (a) any creditor
shall have commenced an enforcement proceeding upon such judgment,
order or decree or (b) there shall have been a period of 60 days
after the date on which any period for appeal has expired and
during which a stay of enforcement of such judgment, order or
decree shall not be in effect; or
(vii) (A) any holder of at least $1,000,000 in aggregate
principal amount of Indebtedness of the Company or any Subsidiary
of the Company as to which a default has occurred and is continuing
shall commence judicial proceedings (which proceedings shall remain
unstayed for 5 Business Days) to foreclose upon assets of the
Company or any Subsidiary of the Company having an aggregate Fair
Market Value, individually or in the aggregate, in excess of
$1,000,000 or shall have exercised any right under applicable law
or applicable security documents to take ownership of any such
assets in lieu of foreclosure or (B) any action described in the
foregoing clause (A) shall result in any court of
competent jurisdiction issuing any order for the seizure of such
assets; or
(viii) there shall have been the entry by a court of
competent jurisdiction of (a) a decree or order for relief in
respect of the Company or any Subsidiary of the Company in an
involuntary case or proceeding under any applicable Bankruptcy Law
or (b) a decree or order adjudging the Company or any Subsidiary of
the Company bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company or any Subsidiary of the Company under any applicable
federal, state or foreign law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Subsidiary of the Company or of any
substantial part of their respective properties, or ordering the
winding up or liquidation of their affairs, and any such decree or
order for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(ix) (a) the Company or any Subsidiary of the Company commences a
voluntary case or proceeding under any applicable Bankruptcy Law or
any other case or proceeding to be adjudicated bankrupt or
insolvent, (b) the Company or any Subsidiary of the Company
consents to the entry of a decree or order for relief in respect of
the Company or such Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, (c) the
Company or any Subsidiary of the Company files a petition or answer
or consent seeking reorganization or relief under any applicable
federal or state law, (d) the Company or any Subsidiary of the
Company (1) consents to the filing of such petition or the
appointment of, or taking possession by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of
the Company or such Subsidiary or of any substantial
part of their respective properties, (2) makes an assignment for
the benefit of creditors or (3) admits in writing its inability to
pay its debts generally as they become due, or (e) the Company or
any Subsidiary of the Company takes any corporate action in
furtherance of any such actions in this paragraph (ix); or
(x) any representation or warranty made by the Company under the
Note Purchase Agreement, the Warrant or this Indenture, or by any
representative of the Company, in any document or certificate
furnished to the Trustee in connection with or pursuant to the Note
Purchase Agreement, the Warrants or this Indenture, shall prove at
any time to have been incorrect in any respect that would cause a
Material Adverse Effect as of the date made and such incorrectness
shall remain material and continue unremedied for a period of 45
days after written notice thereof has been given (x) to the Company
by the Trustee or (y) to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Notes then
outstanding; or
(xi) any Note Guarantee ceases to be in full force and effect or
is declared null and void or any Note Guarantor denies that it has
any further liability under any Note Guarantee, or gives notice to
such effect (other than by reason of the termination of this
Indenture or the release of any such Note Guarantee in accordance
with this Indenture).
Section 6.02 Acceleration. If an Event of Default (other
------------
than an Event of Default specified in Section 6.01(viii) or (ix) with
respect to the Company) occurs and is continuing, the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding,
by notice to the Trustee and the Company, may declare the principal of,
premium, if any, and accrued interest on all the Notes due and payable
immediately, upon which declaration all amounts payable in respect of
the Notes shall immediately be due and payable; provided that so long
--------
as the Credit Agreement shall be in full force and effect, if an Event
of Default shall have occurred and be continuing (other than an Event of
Default specified in Section 6.01(viii) or (ix) with respect to the
Company), any such acceleration shall not be effective until the earlier
to occur of (x) five Business Days following delivery of a written
notice of such acceleration of the Notes to the Bank Agent under the
Credit Agreement and (y) the acceleration of any Indebtedness under the
Credit Agreement. If an Event of Default specified in Sec-
tion 6.01(viii) or (ix) with respect to the Company occurs and is
continuing, then the principal of, premium, if any, and interest on all
the Notes shall ipso facto become and be immediately due and payable
---- -----
without any declaration or other act on the part of the Trustees or any
Holder.
Notwithstanding the foregoing, in the event of a declaration
of acceleration in respect of the Notes because (x) an Event of Default
specified in Section 6.01(v) shall have occurred and be continuing, such
declaration of acceleration of the Notes and such Event of Default shall
be automatically annulled and rescinded and be of no further effect if
the Indebtedness that is the subject of such Event of Default has been
discharged or paid in full or such Event of Default shall have been
cured or waived by the holders of such Indebtedness and if such
Indebtedness has been accelerated, then the holders thereof have
rescinded their declaration of acceleration in respect of such
Indebtedness or (y) an Event of Default specified in Section 6.01(vii)
shall have occurred and be continuing, such declaration of acceleration
of the Notes and such Event of Default shall be automatically annulled
and rescinded and be of no further effect if the proceedings or
enforcement action with respect to the Indebtedness that is the subject
of such Event of Default is terminated or rescinded, or such
Indebtedness is paid in full and only so long as any holder of such
Indebtedness shall not have applied any assets referenced in
Section 6.01(vii) in satisfaction of such Indebtedness and, in the case
of both (x) and (y) of this paragraph, written notice of such discharge,
cure or waiver and rescission, as the case may be, shall have been given
to the Trustee within
60 days after such declaration of acceleration in respect of the Notes
by the Company or by the requisite holders of such Indebtedness or a
trustee, fiduciary or agent for such holders or other evidence
satisfactory to the Trustee of such events is provided to the Trustee
and no other Event of Default shall have occurred which has not been
cured or waived during such 60-day period.
After a declaration of acceleration under this Indenture, but
before a judgment or decree for payment of money due has been obtained
by the Trustee, the Holders of a majority in aggregate principal amount
of the outstanding Notes, by written notice to the Company and the
Trustee, may rescind such declaration if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses,
disbursements, and advances of the Trustee, its agents and
counsel,
(ii) all overdue interest on all Notes,
(iii) the principal of, and premium, if any, on any Notes
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Notes, and
(iv() to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Notes
which has become due otherwise than by such declaration of
acceleration;
(b) the rescission would not conflict with any judgment or
decree of a court of competent jurisdiction; and
(c) all Events of Default, other than the non-payment of
principal of, premium, if any, and interest on the Notes that has
become due solely by such declaration of acceleration, have been
cured or waived.
No such rescission shall affect any subsequent Default or
Event of Default or impair any right consequent thereon.
Section 6.03 Other Remedies. If an Event of Default occurs
--------------
and is continuing, the Trustee may pursue any available remedy by
proceeding at law or in equity to collect the payment of principal of,
premium, if any, or interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture.
All rights of action and claims under this Indenture or the
Notes may be enforced by the Trustee even if it does not possess any of
the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults. The Holders of not
-----------------------
less than a majority in aggregate principal amount of the outstanding
Notes by notice to the Trustee may, on behalf of the Holders of all the
Notes, waive any past Defaults or Events of Default and their
consequences, except a Default or Event of Default specified in Section
6.01(i) or (ii) or in respect of any covenant or provision hereof which
cannot be modified or amended without the consent of the Holder of each
Note outstanding. When a Default or Event of Default is so waived, it
shall be deemed cured and shall cease to exist.
Section 6.05 Control by Majority. The Holders of at least a
-------------------
majority in aggregate principal amount of the outstanding Notes shall
have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred on the Trustee; provided that the Trustee may
--------
refuse to follow any direction (a) that conflicts with any rule of law
or this Indenture, (b) that the Trustee determines may be unduly
prejudicial to the rights of another Noteholder, or (c) that may expose
the Trustee to personal liability unless the Trustee has indemnification
satisfactory to it in its sole discretion against any loss or expense
caused by its following such direction; and provided, further, that the
-------- -------
Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction.
Section 6.06 Limitation on Suits. No Holder of any Notes
-------------------
shall have any right to institute any proceeding with respect to this
Indenture or any remedy thereunder, unless:
(a) the Holder gives written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of
the outstanding Notes make a written request to the Trustee to
pursue the remedy within 30 days of the receipt of such notice;
(c) such Holder or Holders offer and, if requested, provide to
the Trustee reasonable indemnity, satisfactory to the Trustee
against any loss, liability or expense, to institute such
proceeding as Trustee under the Notes and this Indenture;
(d) the Trustee does not comply with the request within 30 days
after receipt of the notice and, if requested, provision of
indemnity; and
(e) during such 30-day period the Holders of a majority in
aggregate principal amount of the outstanding Notes do not give the
Trustee a direction which is inconsistent with the request.
The foregoing limitations shall not apply to a suit instituted
by a Holder for the enforcement of the payment of the principal of,
premium, if any, or interest on, such Note held by such Holder on or
after the respective due dates set forth in such Note.
Section 6.07 Right of Holders to Receive Payment.
-----------------------------------
Notwithstanding any other provision in this Indenture, the right of any
Holder of Notes to receive payment of the principal of and interest on
such Note, on or after the respective Stated Maturities expressed in
such Note, or to bring suit for the enforcement of any such payment on
or after the respective Stated Maturities, is absolute and unconditional
and shall not be impaired or affected without the consent of the Holder.
Section 6.08 Collection Suit by Trustee. If an Event of
--------------------------
Default specified in clause (i) or (ii) of Section 6.01 occurs and is
continuing, the Trustee may recover judgment in its own name and as
trustee of an express trust against the Company, any Note Guarantor or
any other obligor on the Notes for the whole amount of principal of,
premium, if any, and accrued interest remaining unpaid, together with
interest on overdue principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in
each case at the rate per annum borne by the Notes and such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.08.
Section 6.09 Trustee May File Proofs of Claims. The Trustee
---------------------------------
may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in any judicial
proceedings relative to the Company or any Note Guarantor (or any other
obligor upon the Notes), their creditors or their property and shall be
entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the
same, and any Custodian in any such judicial proceedings is hereby
authorized by each 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 agent and counsel, and any other amounts due the Trustee
under Section 7.08. 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 Notes or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money
----------
pursuant to this Article Six, it shall pay out such money in the
following order:
First: to the Trustee for amounts due under Section 7.08;
Second: subject to Article Eleven, to Holders for interest accrued
on the Notes, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for interest;
Third: subject to Article Eleven, to Holders for principal amounts
owing under the Notes, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for prin-
cipal; and
Fourth: the balance, if any, to the Company or, to the extent the
Trustee collects any amount from any Note Guarantor, to such Note
Guarantor.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Noteholders pursuant
to this Section 6.10.
Section 6.11 Undertaking for Costs. In any suit for the
---------------------
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court may in its discretion require the filing by any party litigant in
the suit of an undertaking to pay the costs of the suit, and the court
in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to any suit by the
Trustee, any suit by a Holder pursuant to Section 6.07, or a suit by
Holders of more than 10% in aggregate principal amount of the out-
standing Notes.
Section 6.12 Restoration of Rights and Remedies. If the
----------------------------------
Trustee or any Holder has instituted any proceeding to enforce any right
or remedy under this Indenture, any Note or any Note Guarantee and such
proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in
every such case the Company, each Note Guarantor, the Trustee and the
Holders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder,
and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
ARTICLE SEVEN
TRUSTEE
Section 7.01 Duties. In case an Event of Default has
------
occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and shall use the same
degree of care and skill in their exercise, as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of Default,
(1) the Trustee need perform only such duties as are
specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and, if required by the terms of
this Indenture, conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
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.
(c) 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 willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of\
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (d) of
this Section 7.01.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree in writing with
the Company. Assets held in trust by the Trustee need not be segregated
from other assets except to the extent required by law.
Section 7.02 Rights of Trustee. Subject to Section 7.01:
-----------------
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 12.04 and
12.05. The Trustee shall not be liable for any action it takes or
omits to
take in good faith in reliance on such certificate or
opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care.
(d) The Trustee shall not be liable for any action 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 other than any liabilities arising out of its own willful
misconduct or negligence.
(e) The Trustee may consult with counsel of its own choosing
and the advice or opinion of such counsel as to matters of law
shall be full and complete authorization and protection in respect
of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, notice, request, direction,
consent, order, bond, debenture, or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(g) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders pursuant to the provisions
of this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
(h) The Trustee shall not be charged with knowledge of any
Default or Event of Default unless either (1) a Trust Officer of
the Trustee shall have actual knowledge of such Default or Event of
Default or (2) written notice of such Default or Event of Default
shall have been given to the Trustee by the Company or any Holder.
Section 7.03 Individual Rights of Trustee. The Trustee, any
----------------------------
Paying Agent, the Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of
Notes and, subject to Sections 7.11 and 7.12 and TIA Sections 310 and
311, may otherwise deal with the Company and its Subsidiaries with the
same rights it would have if it were not the Trustee, Paying Agent,
Registrar or such other agent.
Section 7.04 Trustee's Disclaimer. The Trustee makes no
--------------------
representations as to the validity or sufficiency of this Indenture or
the Notes or any Note Guarantee, it shall not be accountable for the
Company's use or application of the proceeds from the Notes, it shall
not be responsible for the use or application of any money received by
any Paying Agent other than the Trustee and it shall not be responsible
for any statement in the Notes other than the Trustee's certificate of
authentication.
Section 7.05 Notice of Default. If a Default or an Event of
-----------------
Default occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to each Holder notice of the Default or Event of
Default within 60 days after the occurrence thereof; provided that,
except in the case of a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on any Note, the Trustee
may withhold the notice to the Holders of such Notes if a committee of
its Trust Officers in good faith determines that withholding the notice
is in the interests of the Holders.
Section 7.06 Money Held in Trust. 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 herein or by law. The Trustee shall not be under any
liability for interest on any moneys received by it hereunder.
Section 7.07 Reports by Trustee to Holders. Within 60 days
-----------------------------
after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall, to the extent that any of the events
described in TIA Section 313(a) occurred within the previous twelve
months, but not otherwise, mail to each Holder a brief report dated as
of such May 15 that complies with TIA Section 313(a). The Trustee also
shall comply with TIA Sections 313(b) and 313(c).
A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and filed with the SEC and each
securities exchange, if any, on which the Notes are listed.
The Company shall notify the Trustee in writing if the Notes
become listed on any securities exchange and of any delisting thereof.
Section 7.08 Compensation and Indemnity. The Company
--------------------------
covenants and agrees to pay the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it, including
costs of collection. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and
counsel, accountants and experts.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss, liability, claim or expense (including
reasonable attorneys' fees and expenses) incurred by it arising out of
or in connection with the administration of this trust and its rights or
duties
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the acceptance, exercise or
performance of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee
for which it may seek indemnity. Failure by the Trustee to so notify
the Company shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim and the Trustee shall cooperate in
the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company
need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence,
bad faith or willful misconduct.
To secure the Company's payment obligations in this Section
7.08, the Trustee shall have a Lien prior to the Notes on all assets
held or collected by the Trustee, in its capacity as Trustee, except
assets held in trust to pay principal of, premium, if any, or interest
on particular Notes.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(viii) or
(ix), the expenses and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The Company's obligations under this Section 7.08 and any Lien
arising hereunder shall survive the resignation or removal of any
trustee, the discharge of the Company's obligations pursuant to Article
Eight and/or the termination of this Indenture.
Section 7.09 Replacement of Trustee. The Trustee may resign
----------------------
by so notifying the Company. The Holders of a majority in principal
amount of the outstanding Notes may remove the Trustee by so notifying
the Company and the Trustee and may appoint a successor trustee with the
Company's consent. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.11;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each
Holder of such event and shall promptly appoint a successor Trustee.
The Trustee shall be entitled to payment of its fees and reimbursement
of its expenses while acting as Trustee, and to the extent such amounts
remain unpaid, the Trustee that has resigned or has been removed shall
retain the Lien afforded by Section 7.08. Within one year after the
successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Notes may appoint a successor Trustee to
replace the successor Trustee appointed by the Company. No retiring
Trustee shall have any obligation to provide to any successor Trustee
any form of indemnity or other financial assurances concerning the fees
and expenses of the successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately
after that, the retiring Trustee shall transfer all property held by it
as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.08, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Noteholder.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least 10% in principal amount of the
outstanding Notes may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.11, any Holder
may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.09, the Company's obligations under Section 7.08 shall
continue for the benefit of the retiring Trustee.
Section 7.10 Successor Trustee by Merger, etc. If the
--------------------------------
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business or assets to, another
corporation or national banking association, the resulting, surviving or
transferee corporation or national banking association without any
further act shall, if such resulting, surviving or transferee cor-
poration or national banking association is otherwise eligible
hereunder, be the successor Trustee.
In case at the time such successor or successors by
consolidation, merger, conversion or transfer to the Trustee shall
succeed to the trusts created by this Indenture any of the Notes 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 Notes so authenticated; and in case at that
time any of the Notes shall not have been authenticated, any successor
to the Trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor to the Trustee;
and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the
certificate of the Trustee shall have.
Section 7.11 Eligibility; Disqualification. There shall at
------------------------------
all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Sections 310(a)(1) and 310(a)(5) and which shall have
a combined capital and surplus of at least $50,000,000. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of federal, state, territorial 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. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of
this Section, the Trustee shall resign immediately in the manner and
with the effect hereinafter specified in this Article. The Trustee
shall comply with TIA Section 310(b); provided, however, that there
shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company or any Note
Guarantor are outstanding if the requirements for such exclusion set
forth in TIA Section 310(b)(1) are met.
Section 7.12 Preferential Collection of Claims Against
-----------------------------------------
Company. The Trustee shall comply with TIA Section 311(a), excluding
-------
any creditor relationship listed in TIA Section 311(b). If the present
or any future Trustee shall resign or be removed, it shall be subject to
TIA Section 311(a) to the extent provided therein.
ARTICLE EIGHT
SATISFACTION AND DISCHARGE OF INDENTURE
Section 8.01 Termination of the Company's Obligations. The
----------------------------------------
Company may terminate its obligations under the Notes and this
Indenture, and the obligations of any Note Guarantor shall terminate
except those obligations
referred to in the penultimate paragraph of this Section 8.01, when:
(i) either (a) all the Notes previously authenticated and
delivered (except lost, stolen or destroyed Notes which have been
replaced or paid) have been delivered to the Trustee for
cancellation or (b) all Notes not theretofore delivered to the
Trustee for cancellation (x) have become due and payable hereunder,
(y) will become due and payable at their Stated Maturity within one
year or (z) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company;
(ii) the Company shall have irrevocably deposited or caused to
be deposited with the Trustee under the terms of an irrevocable
trust agreement in form and substance satisfactory to the Trustee,
as trust funds in trust solely for the benefit of the Holders for
that purpose, cash in Dollars, U.S. Government Obligations, or a
combination thereof, in such amount as is sufficient without con
ideration of reinvestment of such interest, to pay and discharge
the entire indebtedness on the Notes (except lost, stolen or
destroyed Notes which have been replaced or paid) not theretofore
delivered to the Trustee for cancellation, including principal of,
premium, if any, and interest on the outstanding Notes at such
Stated Maturity or the relevant Redemption Date; provided that the
Trustee shall have been irrevocably instructed to apply such money
to the payment of said principal, premium, if any, and interest
with respect to the Notes at such Stated Maturity or Redemption
Date; and, provided, further, that from and after the time of
deposit, the money deposited shall not be subject to the rights of
holders of Senior Indebtedness pursuant to the provisions of
Article Eleven;
(iii) the Company shall have paid all other sums payable by it
hereunder; and
(iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent providing for the termination of the
Company's obligation under the Notes and this Indenture have been
complied with.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.06, 2.07, 2.08, 2.09, 4.01, 4.02 and 7.08 and
any Note Guarantor's obligations in respect thereof shall survive until
the Notes are no longer outstanding pursuant to the last paragraph of
Section 2.09. After the Notes are no longer outstanding, the Company's
obligations in Sections 7.08, 8.04 and 8.05 and any Note Guarantor's
obligations in respect thereof shall survive.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's and
any Note Guarantor's obligations under the Notes and this Indenture
except for those surviving obligations specified above.
Section 8.02 Defeasance and Covenant Defeasance. (a)The
----------------------------------
Company may, at its option by Board Resolution which shall be delivered
to the Trustee, at any time, with respect to the outstanding Notes and
the Note Guarantees, elect to have either paragraph (b) or paragraph (c)
below be applied to the outstanding Notes and the Note Guarantees upon
compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (b), each of the Company and any
Note Guarantor shall be deemed to have been released and discharged from
its respective obligations with respect to the outstanding Notes and the
Note Guarantees on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the then outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of paragraph (e) below and the other Sections of and matters
under this Indenture referred to in (i) and (ii) of this paragraph, and
to have satisfied all its other obligations under such Notes and this
Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
the same), and Holders of the Notes and the Note Guarantees and any
amounts deposited under paragraph (d) below shall cease to be subject to
any obligations to, or the rights of, any holder of Senior Indebtedness
under Article Eleven or otherwise, except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the
rights of Holders of outstanding Notes to receive solely from the trust
fund described in paragraph (d) below and as more fully set forth in
such paragraph, payments in respect of the principal of, premium, if
any, and interest on such Notes when such payments are due, (ii) the
Company's obligations with respect to such Notes under Sections 2.07,
2.08 and 4.02, and, with respect to the Trustee, under Section 7.08 and
any Note Guarantor's obligations in respect thereof, (iii) the rights,
powers, trusts, duties, indemnities and immunities of the Trustee
hereunder and (iv) this Section 8.02 and Section 8.05. Subject to
compliance with this Section 8.02, the Company may exercise its option
under this paragraph (b) notwithstanding the prior exercise of its
option under paragraph (c) below with respect to the Notes.
(c) Upon the Company's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Company shall be released
and discharged from its obligations under any covenant contained in
Sections 4.03 through 4.20 with respect to the outstanding Notes on and
after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"), and the Notes shall thereafter be
deemed to be not "outstanding" for the purpose of any direction, waiver,
consent or declaration or act of Holders (and the consequences of any
thereof) in connection
with such covenants, but shall continue to be deemed "outstanding" for
all other purposes hereunder and Holders of the Notes and the Note
Guarantees and any amounts deposited under paragraph (d) below shall
cease to be subject to any obligations to, or the rights of, any holder
of Senior Indebtedness or Guarantor Senior Indebtedness under Articles
Ten, Eleven or otherwise. For this purpose, such covenant defeasance
means that, with respect to the outstanding Notes, the Company and any
Note Guarantor may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document
and such omission to comply shall not constitute a Default or an Event
of Default under Article Six, but, except as specified above, the
remainder of this Indenture and such Notes shall be unaffected thereby.
In addition, in the event covenant defeasance occurs, the Events of
Default specified in Sections 6.01(v), (vi) or (vii) will no longer
constitute Events of Default with respect to the Notes.
(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 7.11 who shall agree to comply with the
provisions of this Section 8.02 applicable to it) as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Notes, (x) cash in Dollars, or (y)
U.S. Government Obligations maturing as to principal, premium, if
any, and interest in such amounts of money and at such times as are
sufficient without consideration of any reinvestment of such
interest, to pay principal of, premium, if any, and interest on the
outstanding Notes on the Stated
Maturity or relevant Redemption Date of such principal or
installment of interest not later than one day before the due date
of any payment, or (z) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge
principal of, premium, if any, and interest on the outstanding
Notes on the Maturity Date or Redemption Date or otherwise in
accordance with the terms of this Indenture and of such Notes;
provided that the Trustee shall have received an irrevocable
written order from the Company instructing the Trustee (or other
qualifying trustee) to apply such money or the proceeds of such
U.S. Government Obligations to said payments with respect to the
Notes;
(ii) in the case of an election under paragraph (b) above, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, which ruling
must be referred to, or (y) since the Issue Date, there has been a
change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that,
the Holders of the outstanding Notes will not recognize income,
gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred;
(iii) in the case of an election under paragraph (c) above,
the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the outstanding Notes
will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be sub
ject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such covenantdefeasance had not occurred;
(iv) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Events of
Default specified in Section 6.01(viii) or (ix) are concerned, at
any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(v) such defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest with respect to any
securities of the Company or any Note Guarantor;
(vi) such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or any other agreement or instrument
to which the Company or any Note Guarantor is a party or by which
it is bound;
(vii) the Company shall have delivered to the trustee an
Opinion of Counsel stating that (A) the trust funds will not be
subject to any rights of holders of Senior Indebtedness, including,
without limitation, those arising under this Indenture, and
(B) after the 91st day following the deposit or after the date such
Opinion of Counsel is delivered, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally; and
(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each satisfactory
in form and substance to the Trustee, stating that all conditions
precedent provided for relating to either the defeasance under
paragraph
(b) above or the covenant defeasance under paragraph (c) above, as
the case may be, have been complied with.
(e) All cash in Dollars and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this paragraph (e), the
"Trustee") pursuant to paragraph (d) above in respect of the outstanding
Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Company or
any Affiliate of the Company) as the Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in
respect of principal, premium, if any, and interest, but such money need
not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to paragraph (d) above or the
principal, premium, if any, and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the
account of the Holders of the outstanding Notes.
Anything in this Section 8.02 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon
the request, in writing, by the Company any cash in Dollars or U.S.
Government Obligations held by it as provided in paragraph (d) above
which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent legal
defeasance or covenant defeasance.
Section 8.03 Application of Trust Money. The Trustee shall
--------------------------
hold in trust cash in Dollars or U.S. Government Obligations deposited
with it pursuant to
Sections 8.01 and 8.02, and shall apply the deposited cash in Dollars
and U.S. Government Obligations in accordance with this Indenture to the
payment of principal of, premium, if any, and interest on the Notes.
Section 8.04 Repayment to Company or Note Guarantors.
---------------------------------------
Subject to Sections 7.08, 8.01 and 8.02, the Trustee shall promptly pay
to the Company, or if deposited with the Trustee by any Note Guarantor,
to such Note Guarantor, upon receipt by the Trustee of an Officers'
Certificate, any excess money, determined in accordance with Section
8.02, held by it at any time. The Trustee and the Paying Agent shall
pay to the Company, or any Note Guarantor, as the case may be, upon
receipt by the Trustee or the Paying Agent, as the case may be, of an
Officers' Certificate, any money held by it for the payment of
principal, premium, if any, or interest that remains unclaimed for two
years; provided that the Trustee and the Paying Agent before being
required to make any payment may, but need not, at the expense of the
Company cause to be published once in a newspaper of general circulation
in The City of New York or mail to each Holder entitled to such money
notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such
publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company
or any Note Guarantor, as the case may be, Holders entitled to money
must look solely to the Company for payment as general creditors unless
an applicable abandoned property law designates another Person, and all
liability of the Trustee or Paying Agent with respect to such money
shall thereupon cease.
Section 8.05 Reinstatement. If the Trustee or Paying Agent
-------------
is unable to apply any cash in Dollars or U.S. Government Obligations in
accordance with this Indenture by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had been made
pursuant to this Indenture until such time as the Trustee is permitted
to apply all such cash in Dollars or U.S. Government Obligations in
accordance with this Indenture; provided that if the Company has made
--------
any payment of principal of, premium, if any, or interest on any Notes
because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such
payment from the cash in Dollars or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01 Without Consent of Holders. The Company, when
--------------------------
authorized by Board Resolutions of its Board of Directors, the Note
Guarantors and the Trustee may amend, waive or supplement this Indenture
or the Notes without notice to or consent of any Holder:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to comply with Article Five;
(c) to add Guarantees with respect to the Notes;
(d) to secure the Notes;
(e) to add to the covenants of the Company for the benefit of
the Holders;
(f) to surrender any right or power conferred upon the Company
or any Note Guarantor;
(g) to make any change that does not adversely affect the
rights of any Holder; or
(h) to comply with any requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the
TIA.
After an amendment, supplement or waiver under this Section
9.01 becomes effective, the Company shall mail to the Holders, with a
copy to the Trustee, a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect
the validity of any supplemental indenture.
Section 9.02 With Consent of Holders. Subject to Section
-----------------------
6.04, the Company and the Note Guarantors when authorized by Board
Resolutions of their respective Boards of Directors, and the Trustee may
amend or modify this Indenture or the Notes with the written consent of
the Holders of not less than a majority in aggregate principal amount of
the Notes then outstanding, and the Holders of not less than a majority
in aggregate principal amount of the Notes then outstanding by written
notice to the Trustee, may waive future compliance by the Company or any
Note Guarantor with any provision of this Indenture, the Notes or the
Note Guarantees, except a default in the payment of principal of,
premium, if any, or interest on the Notes.
Notwithstanding the provisions of this Section 9.02, without
the consent of each Holder affected, an amendment, modification or
waiver, including a waiver pursuant to Section 6.04, may not:
(a) reduce the principal amount outstanding of or extend the
Stated Maturity of any Note or alter the redemption provisions with
respect thereto;
(b) make the principal of, premium, if any, or interest on
any Note payable in money other than that stated in the Note;
(c) reduce the percentage in outstanding aggregate principal
amount of Notes the Holders of which
must consent to an amendment, supplement or waiver of or consent to
take any action under any provision of this Indenture, the Notes or
any Note Guarantee;
(d) modify or change Section 4.12 or any provision of this
Indenture affecting the subordination of the Notes or any Note
Guarantee in a manner adverse to the Holders;
(e) impair the right of any Holder to receive payment of
principal of, premium, if any, and interest on such Holder's Notes
on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to the Notes;
(f) waive a default in the payment of the principal of,
premium, if any, or interest on, or redemption or an offer to
purchase required hereunder with respect to, any Note or any Note
Guarantee (except for any waiver of a default in payment to the
extent resulting from a declaration of acceleration under this
Indenture, which declaration has been rescinded by the Holders as
contemplated by the third full paragraph under Section 6.02);
(g) following the occurrence of a Change of Control or an Asset
Sale, amend, change or modify the obligation of the Company to
offer to repurchase and to repurchase the Notes in the event of a
Change of Control or make and consummate the Excess Proceeds Offer
with respect to any Asset Sale, including by modifying any of the
provisions or definitions with respect thereto;
(h) reduce or change the rate or time for payment of interest
on the Notes;
(i) modify this Section 9.02 or Section 6.04 or Section 6.07;
or
(j) release any Note Guarantor from any of its obligations
under its Note Guarantee or this Indenture other than in compliance
with this Indenture.
Notwithstanding the foregoing, no amendment shall modify any
provision of this Indenture so as to affect adversely the rights of any
Senior Indebtedness or Guarantor Senior Indebtedness representing Credit
Agreement Obligations at the time outstanding which are entitled to the
benefits of subordination under this Indenture (or any group or
representative thereof authorized to give a consent) without the written
consent of such holders.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders, with a
copy to the Trustee, a notice briefly describing the amendment,
supplement or waiver. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect
the validity of any supplemental indenture.
Section 9.03 Revocation and Effect of Consents. Until an
---------------------------------
amendment, supplement or waiver becomes effective, a consent to it by a
Holder is a continuing consent by such Holder and every subsequent
Holder of that Note or portion of that Note that evidences the same debt
as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder or subsequent Holder may
revoke the consent as to his Note or portion of a Note prior to such
amendment, supplement or waiver becoming effective. Such revocation
shall be effective only if the Trustee receives the notice of revocation
before the date the amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver. If a record date is fixed, then
notwithstanding the second and third sentences of the immediately
preceding paragraph, those Persons who were Holders at such record date
(or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke
any consent previously given, whether or not such Persons continue to be
Holders after such record date. Such consent shall be effective only
for actions taken within 120 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it makes a change described in any of
clauses (a) through (i) of Section 9.02; if it makes such a change, the
amendment, supplement or waiver shall bind every subsequent Holder of a
Note or portion of a Note that evidences the same debt as the consenting
Holder's Note.
Section 9.04 Notation on or Exchange of Notes. If an
--------------------------------
amendment, supplement or waiver changes the terms of a Note, the Trustee
shall (in accordance with the specific direction of the Company) request
the Holder of the Note to deliver it to the Trustee. The Trustee shall
(in accordance with the specific direction of the Company) place an
appropriate notation on the Note about the changed terms and return it
to the Holder. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the
Trustee shall authenticate a new Note that reflects the changed terms.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 9.05 Trustee May Sign Amendments, etc. The Trustee
--------------------------------
shall sign any amendment, supplement or waiver authorized pursuant to
this Article Nine if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it
does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver, the Trustee shall be entitled
to receive indemnity reasonably satisfactory to it and to receive, and
shall be fully protected in relying upon, in addition to the documents
required by Section 12.04, an Officers' Certificate and an Opinion of
Counsel, each stating that the execution of any amendment, supplement or
waiver is authorized or permitted by this Indenture, that it is not
inconsistent herewith and that it will be valid and binding upon the
Company in accordance with its terms.
ARTICLE TEN
GUARANTEE OF NOTES
Section 10.01 Note Guarantee. Subject to the provisions of
--------------
this Article Ten, each Note Guarantor hereby absolutely, unconditionally
and irrevocably guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and
assigns, as a primary obliger and not merely as a surety, that: (a) the
principal of, premium, if any, and interest on the Notes shall be duly
and punctually paid in full when due, whether at maturity, by
acceleration, by redemption or otherwise, and interest on the overdue
principal and (to the extent permitted by law) interest, if any, on the
Notes and all other obligations of the Company to the Holders or the
Trustee hereunder or thereunder (including fees and expenses, including
reasonable attorneys' fees and expenses) and all other Senior
Subordinated Note Obligations shall be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b)
in case of any extension of time of payment or renewal of any Notes or
any of such other Senior Subordinated Note Obligations, the same shall
be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at Stated Maturity, by
acceleration, by redemption or otherwise. Failing payment when due of
any amount so guaranteed, or failing performance of any other obligation
of the Company to the Holders, for whatever reason, each Note Guarantor
shall be obligated to pay, or to perform or cause the performance of,
the same immediately. This Note Guarantee shall be a continuing
guarantee of payment, performance and compliance when due (and not a
guarantee of collection) in respect of all Senior Subordinated Note
Obligations and shall remain in full force and effect until the payment
in full of all Senior Subordinated Note Obligations. An Event of
Default under this Indenture or the Notes shall constitute an event of
default under this Note Guarantee, and shall entitle the Holders of
Notes to accelerate the obligations of each Note Guarantor hereunder in
the same manner and to the same extent as the obligations of the
Company.
Each Note Guarantor hereby agrees that its obligations
hereunder shall be absolute and unconditional, irrespective of the
validity, regularity or enforceability of the Notes or this Indenture,
any extension or renewal of this Indenture or the Notes, the absence of
any action to enforce the same, any waiver or consent by any Holder of
the Notes with respect to any provisions hereof or thereof, any release
of any other Note Guarantor, the recovery of any judgment against the
Company, any action to enforce the same, whether or not a Note Guarantee
is affixed to any particular Note, or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a
guarantor. Each Note Guarantor hereby waives the benefit of diligence,
presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Note Guarantee will not be discharged
except by complete performance of the obligations contained in the
Notes, this Indenture and this Note Guarantee. If any Holder or the
Trustee is required by any court or otherwise to return to the Company
or to any Note Guarantor, or any custodian, trustee, liquidator or other
similar official acting in relation to the Company or such Note
Guarantor, any amount paid by the Company or such Note Guarantor to the
Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Note Guarantor further
agrees that, as between it, on the one hand, and the Holders of Notes
and the Trustee, on the other hand, (a) subject to this Article Ten, the
maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six hereof for the purposes of this Note Guarantee,
notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and
(b) in the event of any acceleration of such obligations as provided in
Article Six hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by such Note Guarantor for the
purpose of this Note Guarantee.
This Note Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the
Company for liquidation or reorganization, should the Company become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law,
continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Notes are, pursuant to applicable
law, rescinded or reduced in amount, or must otherwise be restored or
returned by any obligee on the Notes, whether as a "voidable pref-
erence," "fraudulent transfer" or otherwise, all as though such payment
or performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the Notes
shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the obligations
guaranteed hereunder by any Note Guarantor shall not exceed the maximum
amount that can be hereby guaranteed without rendering this Indenture,
as it relates to any Note Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Section 10.02 Execution and Delivery by Holding of Note
-----------------------------------------
Guarantee. To further evidence the Note Guarantee set forth in Section
--------
10.01, each Note Guarantor hereby agrees that a notation of such Note
Guarantee, substantially in the form included in the form of Note
included in Exhibit A hereto, shall be endorsed on each Note authen-
ticated and delivered by the Trustee after such Note Guarantee is
executed and executed by either manual or facsimile signature of an
Officer of such Note Guarantor. The validity and enforceability of any
Note Guarantee shall not be affected by the fact that it is not affixed
to any particular Note.
Each Note Guarantor hereby agrees that its Note Guarantee set
forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such
Note Guarantee.
If an Officer of any Note Guarantor whose signature is on this
Indenture or a Note no longer holds that office at the time the Trustee
authenticates such Note or at any time thereafter, such Note Guarantee
of such Note shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Note Guarantee set forth in this Indenture on behalf of each Note
Guarantor.
Section 10.03 Additional Note Guarantors. Each Subsidiary
--------------------------
that is required to become a Note Guarantor pursuant to Section 4.23
shall promptly (a) execute and deliver to the Trustee a supplemental
indenture in form and substance reasonably satisfactory to the Trustee,
which shall subject such Subsidiary to the provisions of this Indenture
as a Note Guarantor on substantially the same terms as set forth in this
Article Ten with respect to the Note Guarantee of the current Note
Guarantors, and (b) the
Company shall deliver to the Trustee an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee stating that such
supplemental indenture has been duly authorized, executed and delivered
by such Subsidiary and that, subject to the applicable bankruptcy,
insolvency, fraudulent transfer, fraudulent conveyance, reorganization,
moratorium and other laws now or hereafter in effect affecting
creditors' rights generally and the general principles of equity
(including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness), such supplemental indenture is a valid
and binding agreement of such Subsidiary, enforceable against such
Subsidiary in accordance with its terms.
Section 10.04 Note Guarantee Obligations Subordinated to
------------------------------------------
Guarantor Senior Indebtedness. Each Note Guarantor covenants and
------------------------------
agrees, and each Holder of a Note, by its acceptance thereof, likewise
covenants and agrees, that all payments pursuant to the Note Guarantee
made by or on behalf of such Note Guarantor are hereby expressly made
subordinate and, subject, in right of payment as provided in this
Article Ten, to the prior payment in full in cash or cash equivalents of
all amounts payable under all existing and future Guarantor Senior
Indebtedness of such Note Guarantor.
This Section 10.04 and the following Sections 10.05 through
10.17 of this Article Ten shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or
continue to hold Guarantor Senior Indebtedness of such Note Guarantor;
and such provisions are made for the benefit of the holders of Guarantor
Senior Indebtedness of such Note Guarantor; and such holders (to such
extent) are made obligees hereunder and they or each of them may enforce
such provisions.
Section 10.05 Payment Over of Proceeds upon Dissolution, etc.
-----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to any Note
Guarantor or its assets, or (b) any liquidation, dissolution or other
winding-up of such Note Guarantor, whether voluntary or involuntary, or
(c) any assignment for the benefit of creditors or other marshalling of
assets or liabilities of such Note Guarantor, then and in any such
event:
(1) the holders of all Guarantor Senior Indebtedness of such
Note Guarantor shall be entitled to receive payment in full in cash
or cash equivalents, or provision acceptable to the requisite
holders of Guarantor Senior Indebtedness of such Note Guarantor
made for such payment, of all amounts due on or in respect of all
such Guarantor Senior Indebtedness before the Holders are entitled
to receive any payment or distribution, whether in cash, property
or securities (excluding Permitted Junior Securities) on account of
the Senior Subordinated Note Obligations or for the acquisition of
any of the Notes; and
(2) any payment or distribution of assets of such Note
Guarantor of any kind or character, whether in cash, property or
securities (excluding Permitted Junior Securities), by set-off or
otherwise, to which the Holders or the Trustee would be entitled
but for the subordination provisions of this Article Ten shall be
paid by the liquidating trustee or agent or other Person making
such payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating trustee or otherwise, directly to the
holders of Guarantor Senior Indebtedness of such Note Guarantor or
their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing
any of such Guarantor Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on
account of such Guarantor Senior Indebtedness held or represented
by each, to the extent necessary to make payment in full in cash or
cash equivalents of all such Guarantor Senior Indebtedness
remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of
such Guarantor Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing provisions
of this Section 10.05, the Trustee or the Holder of any Note shall
have received any payment or distribution of assets of such Note
Guarantor of any kind or character, whether in cash, property or
securities, in respect of any Senior Subordinated Note Obligations
under this Note Guarantee before all Guarantor Senior Indebtedness
of such Note Guarantor is paid in full in cash or cash equivalents
or payment thereof provided for, then and in such event such
payment or distribution (excluding Permitted Junior Securities)
shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of
such Note Guarantor for application to the payment of all such
Guarantor Senior Indebtedness remaining unpaid, to the extent
necessary to pay all of such Guarantor Senior Indebtedness in full
in cash or cash equivalents, after giving effect to any concurrent
payment or distribution to or for the holders of such Guarantor
Senior Indebtedness.
The consolidation of any such Note Guarantor with, or the
merger of such Note Guarantor with or into, another Person or the
liquidation or dissolution of such Note Guarantor following the
conveyance, transfer or lease of its properties and assets substantially
as an entirety to another Person shall not be deemed a dissolution,
winding-up, liquidation, reorganization, assignment for the benefit of
creditors or marshalling of assets and liabilities of such Note
Guarantor for the purposes of this Article if the Person formed by such
consolidation or the surviving entity of such merger or the Person which
acquires by conveyance, transfer or lease such properties and assets
substantially as an entirety, as the case may be, shall, as a part of
such consolidation, merger, conveyance, transfer or lease, assume the
Note Guarantee of such Note Guarantor.
Section 10.06 Suspension of Note Guarantee Obligations When
---------------------------------------------
Guarantor Senior Indebtedness in Default. Unless Section 10.05 shall
----------------------------------------
be applicable, after the occurrence of a Payment Default, no payment or
distribution of any assets of any Note Guarantor of any kind or
character shall be made by or on behalf of such Note Guarantor on
account of the Senior Subordinated Note Obligations or on account of the
purchase, redemption, defeasance or other acquisition of the Senior
Subordinated Note Obligations or any of the obligations of such Note
Guarantor under this Note Guarantee unless and until such Payment
Default shall have been cured or waived or shall have ceased to exist or
the Senior Indebtedness as to which such Payment Default relates shall
have been discharged or paid in full in cash or cash equivalents, after
which, subject to Section 10.05 (if applicable), such Note Guarantor
shall resume making any and all required payments in respect of its
obligations under this Note Guarantee.
(b) Unless Section 10.05 shall be applicable, during any
Payment Blockage Period in respect of the Notes, no payment or
distribution of any assets of any Note Guarantor of any kind or
character shall be made by or on behalf of such Note Guarantor on
account of the Senior Subordinated Note Obligations or on account of the
purchase, redemption, defeasance or other acquisition of the Senior
Subordinated Note Obligations or on account of any of the other
obligations of such Note Guarantor under this Note Guarantee. Upon the
termination of any Payment Blockage Period, subject to Section 10.05 (if
applicable), such Note Guarantor shall resume making any and all
required payments in respect of its obligations under this Note
Guarantee.
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Note shall have received any payment from
any Note Guarantor prohibited by the foregoing provisions of this
Section 10.06, then and in such event such payment shall be paid over
and delivered forthwith to the Senior Representative initiating the
Payment Blockage Period, in trust for distribution to the
holders of Guarantor Senior Indebtedness of such Note Guarantor or, if
no amounts are then due in respect of Guarantor Senior Indebtedness of
such Note Guarantor, prompt return to such Note Guarantor, or as a court
of competent jurisdiction shall direct.
Section 10.07 Release of Note Guarantee. (a) Concurrently
-------------------------
with the payment in full of all Senior Subordinated Note Obligations,
then each Note Guarantor shall be released from and relieved of its
obligations under this Article Ten. Upon the delivery by the Company to
the Trustee of an Officers' Certificate and, if requested by the
Trustee, an Opinion of Counsel stating that the transaction giving rise
to the release of this Note Guarantee was made by the Company in
accordance with the provisions of this Indenture and the Notes, the
Trustee shall execute any documents reasonably required in order to
evidence the release of such Note Guarantor from its obligations under
this Note Guarantee. If any of the Senior Subordinated Note Obligations
are revived and reinstated after the termination of this Note Guarantee,
then all of the obligations of such Note Guarantor under this Note
Guarantee shall be revived and reinstated as if this Note Guarantee had
not been terminated until such time as the Senior Subordinated Note
Obligations are paid in full, and such Note Guarantor shall enter into
an amendment to this Note Guarantee, reasonably satisfactory to the
Trustee, evidencing such revival and reinstatement.
(b) Each Subsidiary that becomes a Note Guarantor pursuant to
Section 4.23 shall be released from and relieved of its obligations
under its Note Guarantee upon payment in full of all Senior Subordinated
Note Obligations, subject to the terms thereof which in such respect
shall be substantially the same as set forth in the foregoing paragraph
(a) with respect to the other Note Guarantees.
Section 10.08 Waiver of Subrogation. Each Note Guarantor
---------------------
hereby irrevocably waives any claim or other rights which it may now or
hereafter acquire against the Company that arise from the existence,
payment, performance
or enforcement of such Note Guarantor's obligations under this Note
Guarantee and this Indenture, including, without limitation, any right
of subrogation, reimbursement, exoneration, indemnification, and any
right to participate in any claim or remedy of any Holder of Notes
against the Company, whether or not such claim, remedy or right arises
in equity, or under contract, statute or common law. If any amount
shall be paid to such Note Guarantor in violation of the preceding
sentence and the Notes shall not have been paid in full, such amount
shall have been deemed to have been paid to such Note Guarantor for the
benefit of, and held in trust for the benefit of, the Holders of the
Notes, and shall, subject to the subordination provisions of this
Article and to Article Eleven, forthwith be paid to the Trustee for the
benefit of such Holders to be credited and applied upon the Notes,
whether matured or unmatured, in accordance with the terms of this
Indenture.
Section 10.09 Provisions Solely to Define Relative Rights.
-------------------------------------------
The subordination provisions of this Article Ten are and are intended
solely for the purpose of defining the relative rights of the Holders of
the Notes on the one hand and the holders of Guarantor Senior Indebt-
edness of the Note Guarantors on the other hand. Nothing contained in
this Article Ten or elsewhere in this Indenture or in the Notes is
intended to or shall (a) impair, as among any Note Guarantor, its
creditors other than holders of its Guarantor Senior Indebtedness and
the Holders of the Notes, the obligation of such Note Guarantor, which
is absolute and unconditional, to make payments to the Holders in
respect of its obligations under this Note Guarantee as and when the
same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against such Note Guarantor of the Holders of
the Notes and creditors of such Note Guarantor other than the holders of
the Guarantor Senior Indebtedness
of such Note Guarantor; or (c) prevent the Trustee or the Holder of any
Note from exercising all remedies otherwise permitted by applicable law
upon Default or an Event of Default under this Indenture, subject to the
rights, if any, under the subordination provisions of this Article Ten
of the holders of Guarantor Senior Indebtedness of Holding hereunder,
(1) in any case, proceeding, dissolution, liquidation or other winding-up,
assignment for the benefit of creditors or other marshaling of
assets and liabilities of such Note Guarantor referred to in Section
10.05, to receive, pursuant to and in accordance with such Section,
cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder, or (2) under the conditions specified in Section
10.06, to prevent any payment prohibited by such Section or enforce
their rights pursuant to Section 10.06(c).
The failure by any Note Guarantor to make a payment in respect
of its obligations under this Note Guarantee by reason of any provision
of this Article Ten shall not be construed as preventing the occurrence
of a Default or an Event of Default hereunder.
Section 10.10 Trustee to Effectuate Subordination. Each
-----------------------------------
Holder of a Note by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Ten
and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of any Note Guarantor whether in
bankruptcy, insolvency, receivership proceedings, or otherwise, the
timely filing of a claim for the unpaid balance of the indebtedness of
such Note Guarantor owing to such Holder in the form required in such
proceedings and the causing of such claim to be approved. If the
Trustee does not file such a claim prior to 30 days before the
expiration of the time to file such a claim, the holders of Guarantor
Senior Indebtedness, or any Senior Representative, may file such a claim
on behalf of Holders of the Notes.
Section 10.11 No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Guarantor Senior
Indebtedness to enforce subordination as herein provided shall at any
time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or any Note Guarantor or by any act or
failure to act, in good faith, by any such holder, or by any non-compliance
by the Company or such Note Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 10.11, the holders of Guarantor Senior Indebtedness may, at any
time and from time to time, without the consent of or notice to the
Trustee or the Holders of the Notes, without incurring responsibility to
the Holders of the Notes and without impairing or releasing the subordi-
nation provided in this Article Ten or the obligations hereunder of the
Holders of the Notes to the holders of such Guarantor Senior
Indebtedness, do any one or more of the following: (1) change the
manner, place or terms of payment or extend the time of payment of, or
renew or alter, such Guarantor Senior Indebtedness or any Senior
Indebtedness as to which such Guarantor Senior Indebtedness relates or
any instrument evidencing the same or any agreement under which such
Guarantor Senior Indebtedness or such Senior Indebtedness is
outstanding; (2) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing such Guarantor Senior
Indebtedness or any Senior Indebtedness as to which such Guarantor
Senior Indebtedness relates; (3) release any Person liable in any manner
for the collection or payment of such Guarantor Senior Indebtedness or
any Senior Indebtedness as to which such Guarantor Senior Indebtedness
relates; and (4) exercise or refrain from exercising any rights against
any Note Guarantor and any other Person; provided that in no event shall
any such actions limit the right of the Holders of the Notes to take any
action to accelerate the maturity of the Notes pursuant to Article Six
hereof or to pursue any rights or remedies hereunder or under applicable
laws if the taking of such action does not otherwise violate the terms
of this Indenture.
Section 10.12 Notice to Trustee. (a) The Company and each
-----------------
Note Guarantor shall give prompt written
notice to the Trustee of any fact known to such Note Guarantor which
would prohibit the making of any payment to or by the Trustee in respect
of the Notes. Notwithstanding the subordination provisions of this
Article or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of
the Notes, unless and until the Trustee shall have received written
notice thereof at its Corporate Trust Office from the Company, any Note
Guarantor or a holder of any Guarantor Senior Indebtedness or from any
representative, trustee, fiduciary or agent therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the
provisions of this Section 10.12, shall be entitled in all respects to
assume that no such facts exist; provided that if the Trustee shall not
--------
have received the notice provided for in this Section 10.12 at least two
Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose under this Indenture (including,
without limitation, the payment of the principal of or interest on any
Note), then, anything herein contained to the contrary notwithstanding
but without limiting the rights and remedies of the holders of such
Guarantor Senior Indebtedness or any representative, trustee, fiduciary
or agent thereof, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such
money was received and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to
such date; nor shall the Trustee be charged with knowledge of the curing
of any such default or the elimination of the act or condition pre-
venting any such payment unless and until the Trustee shall have
received an Officers' Certificate to such effect.
(b) Subject to the provisions of Section 7.01, the Trustee
shall be entitled to rely on the delivery to it of a written notice to
the Trustee, by a Person representing himself to be a holder of
Guarantor Senior Indebtedness (or a representative, trustee, fiduciary
or agent therefor). In the event that the Trustee determines in good
faith that
further evidence is required with respect to the right of any Person as
a holder of Guarantor Senior Indebtedness to participate in any payment
or distribution pursuant to this Article Ten, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Guarantor Senior Indebtedness held by such
Person, the extent to which such Person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights
of such Person under this Article Ten, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
Section 10.13 Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent Regarding Dissolution, etc. Upon any payment or
--------------------------------------------
distribution of assets of any Note Guarantor referred to in this Article
Ten, the Trustee, subject to the provisions of Section 7.01, and the
Holders shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution,
winding-up or similar case or proceeding is pending, or a certificate of
the trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for
the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of Guarantor Senior Indebtedness
and other Indebtedness of such Note Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and
all other facts pertinent thereto or to this Article Ten; provided that
--------
the foregoing shall apply only if such court has been fully apprised of
the provisions of this Article Ten. The Trustee is not responsible for
determining whether or not the court has been fully apprised of the
provisions of this Article Ten.
Section 10.14 Rights of Trustee as a Holder of Guarantor
------------------------------------------
Senior Indebtedness; Preservation of Trustee's Rights. The Trustee in
-----------------------------------------------------
its individual capacity shall be entitled to all the rights set forth in
this Article Ten with respect to any Guarantor Senior Indebtedness which
may at any time be held by the Trustee, to the same extent as any other
holder of such Guarantor Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article Ten shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.08.
Section 10.15 Article Ten Applicable to Paying Agents. In
---------------------------------------
case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Ten shall in such case (unless the
context otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article Ten in
addition to or in place of the Trustee; provided that Section 10.14
shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
Section 10.16 No Suspension of Remedies. Nothing contained
-------------------------
in this Article Ten shall limit the right of the Trustee or the Holders
of Notes to take any action to accelerate the maturity of the Notes
pursuant to Article Six or to pursue any rights or remedies hereunder or
under applicable law, subject to the rights, if any, under this Article
Ten of the holders, from time to time, of Guarantor Senior Indebtedness.
Section 10.17 Trustee's Relation to Guarantor Senior
--------------------------------------
Indebtedness. With respect to the holders of Guarantor Senior
------------
Indebtedness, the Trustee undertakes to perform or to observe only such
of its covenants and obligations as are specifically set forth in this
Article Ten (and in Article Eleven with respect to Senior Indebtedness),
and no implied covenants or obligations with respect to the holders of
Guarantor 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
Guarantor Senior Indebtedness and the Trustee shall not be liable to any
holder of Guarantor Senior Indebtedness if it shall mistakenly in the
absence of gross negligence or willful misconduct pay over or deliver to
Holders, any note Guarantor or any other Person moneys or assets to
which any holder of Guarantor Senior Indebtedness shall be entitled by
virtue of this Article Ten or otherwise.
Section 10.18 Subrogation. Upon the payment in full in cash
-----------
or cash equivalents of all amounts payable under or in respect of
Guarantor Senior Indebtedness of any Note Guarantor, the Holders shall
be subrogated to the rights of the holders of such Guarantor Senior
Indebtedness to receive payments or distributions of assets of such Note
Guarantor made on such Guarantor Senior Indebtedness until all amounts
due under this Note Guarantee shall be paid in full; and for the
purposes of such subrogation, no payments or distributions to holders of
such Guarantor Senior Indebtedness of any cash, property or securities
to which Holders of the Notes would be entitled except for the
provisions of this Article Ten, and no payment pursuant to the
provisions of this Article Ten to holders of such Guarantor Senior
Indebtedness by the Holders, shall, as among such Note Guarantor, its
creditors other than holders of such Guarantor Senior Indebtedness and
the Holders, be deemed to be a payment by such Note Guarantor to or on
account of such Guarantor Senior Indebtedness) it being understood that
the provisions of this Article Ten are solely for the purpose of
defining the relative rights of the holders of such Guarantor Senior
Indebtedness, on the one hand, and the Holders, on the other hand.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Ten
shall have been applied, pursuant to the provisions of this Article Ten,
to the payment of all amounts payable under Guarantor Senior
Indebtedness, then and in such case, the Holders shall be entitled to
receive from the holders of such Guarantor
Senior Indebtedness at the time outstanding any payments or
distributions received by such holders of Guarantor Senior Indebtedness
in excess of the amount sufficient to pay all amounts payable under or
in respect of such Guarantor Senior Indebtedness in full.
ARTICLE ELEVEN
SUBORDINATION OF NOTES
Section 11.01 Notes Subordinate to Senior Indebtedness. The
----------------------------------------
Company covenants and agrees, and each Holder of a Note, by his
acceptance thereof, likewise covenants and agrees, that, to the extent
and in the manner hereinafter set forth in this Article Eleven, the
Indebtedness represented by the Notes and the payment of the Senior
Subordinated Note Obligations are hereby expressly made subordinate and
subject in right of payment as provided in this Article to the prior
payment in full in cash or cash equivalents of all amounts payable under
all existing and future Senior Indebtedness.
This Article Eleven shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or
continue to hold Senior Indebtedness; and such provisions are made for
the benefit of the holders of Senior Indebtedness; and such holders are
made obligees hereunder and they or each of them may enforce such pro-
visions.
Section 11.02 Payment over of Proceeds upon Dissolution,
------------------------------------------
etc. In the event of (a) any insolvency or bankruptcy case or
---
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relating to the
Company or to its assets, or (b) any liquidation, dissolution or other
winding-up of the Company, whether voluntary or involuntary, or (c) any
assignment for the benefit of creditors or other marshalling of assets
or liabilities of the Company, then and in any such event:
(1) the holders of Senior Indebtedness shall be entitled to
receive payment in full in cash or cash equivalents or provision
acceptable to the requisite holders of Senior Indebtedness made for
such payments, of all amounts due on or in respect of Senior
Indebtedness before the Holders are entitled to receive any payment
or distribution, whether in cash, property or securities (excluding
Permitted Junior Securities) on account of Senior Subordinated Note
Obligations or for the acquisition of any of the Notes; and
(2) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities
(excluding Permitted Junior Securities), by set-off or otherwise,
to which the Holders or the Trustee would be entitled but for the
provisions of this Article shall be paid by the liquidating trustee
or agent or other Person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Indebtedness or
their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing
any of such Senior Indebtedness may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of
the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full in cash or cash equivalents of
all Senior Indebtedness remaining unpaid, after giving effect to
any concurrent payment or distribution to the holders of such
Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing
provisions of this Section 11.02, the Trustee or the Holder of any
Note shall have received any payment or distribution of properties
or assets of the Company of any kind or character, whether in cash,
property or securities, by set off or otherwise in respect of any
Senior Subordinated Note Obligations before all Senior Indebtedness
is paid or provided for in full in cash or
cash equivalents, then and in such event such payment or
distribution (excluding Permitted Junior Securities) shall be paid
over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person
making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all Senior Indebtedness in
full in cash or cash equivalents, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution
of the Company following the conveyance, transfer or lease of its
properties and assets substantially as an entirety to another Person
upon the terms and conditions set forth in Article Five hereof shall not
be deemed a dissolution, winding-up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and
liabilities of the Company for the purposes of this Article if the
Person formed by such consolidation or the surviving entity of such
merger or the Person which acquires by conveyance, transfer or lease
such properties and assets substantially as an entirety, as the case may
be, shall, as a part of such consolidation, merger, conveyance, transfer
or lease, comply with the conditions set forth in such Article Five.
Section 11.03 Suspension of Payment When Senior Indebtedness
----------------------------------------------
in Default. Unless Section 11.02 shall be applicable, upon the
----------
occurrence of a Payment Default, no direct or indirect payment or
distribution of any assets of the Company of any kind or character shall
be made by or on behalf of the Company on account of the Senior
Subordinated Note Obligations or on account of the purchase or
redemption or other acquisition of any Senior Subordinated Note Obli-
gations unless and until such Payment Default shall have been cured or
waived or shall have ceased to exist or such Senior Indebtedness shall
have been discharged or paid in
full in Cash or Cash Equivalents, after which, subject to Section 11.02
(if applicable), the Company shall resume making any and all required
payments in respect of the Notes and the other Senior Subordinated Note
Obligations, including any missed payments.
(b) Unless Section 11.02 shall be applicable, upon (1) the
occurrence of a Non-payment Default and (2) receipt by the Trustee and
the Company from a Senior Representative of written notice of such
occurrence stating that such notice is a Payment Blockage Notice
pursuant to Section 11.03(b) of this Indenture, no payment or
distribution of any assets of the Company of any kind or character shall
be made by or on behalf of the Company on account of any Senior
Subordinated Note Obligations or on account of the purchase or
redemption or other acquisition of Senior Subordinated Note Obligations
for a period ("Payment Blockage Period") commencing on the date of
receipt by the Trustee of such notice unless and until the earlier to
occur of the following events (subject to any blockage of payments that
may then be in effect under Section 11.02 or subsection (a) of this
Section 11.03): (i) 179 days shall have elapsed since receipt of such
notice, (ii) the date on which such Non-payment Default is cured or
waived or ceases to exist (provided that no other Payment Default or
Non-payment Default has occurred or is then continuing after giving
effect to such cure or waiver), (iii) the date on which such Senior
Indebtedness is discharged or paid in full in cash or cash equivalents
or (iv) the date on which such Payment Blockage Period shall have been
terminated by express written notice to the Company or the Trustee from
the Senior Representative initiating such Payment Blockage Period, after
which, subject to Section 11.02 (if applicable), the Company shall
promptly resume making any and all required payments in respect of the
Senior Subordinated Note Obligations, including any missed payments.
Notwithstanding any other provision of this Indenture, only one Payment
Blockage Period with respect to the Notes, any Note Guarantee or the
Notes and the Note Guarantees collectively may be commenced within any
360 consecutive day period. No Non-payment
Default with respect to Senior Indebtedness that existed or was
continuing on the date of the commencement of any Payment Blockage
Period with respect to the Senior Indebtedness initiating such Payment
Blockage Period (other than any such Non-payment Default which was not
and could not reasonably be expected to have been known by the holders
or the Senior Representative) will be, or can be, made the basis for the
commencement of a second Payment Blockage Period, whether or not within
a period of 360 consecutive days, unless such default has been cured or
waived for a period of not less than 90 consecutive days (it being
acknowledged that any subsequent action, or any breach of any financial
covenant for a period commencing after the date of commencement of such
Payment Blockage Period, that, in either case, would give rise to a
Non-payment Default pursuant to any provision under which a Non-payment
Default previously existed or was continuing shall constitute a new
Non-payment Default for this purpose; provided that, in the case of a breach
of a particular financial covenant, the Company shall have been in com-
pliance for at least one full period commencing after the date of
commencement of such Payment Blockage Period). In no event shall a
Payment Blockage Period extend beyond 179 days from the date of the
receipt by the Trustee of the notice referred to in clause (2) hereof
and there must be a 181 consecutive day period in any 360 day period
during which no Payment Blockage Period is in effect pursuant to this
Section 11.03(b).
(c) In the event that, notwithstanding the foregoing, the
Trustee or the Holder of any Note shall have received any payment or
distribution prohibited by the foregoing provisions of this Section
11.03, then and in such event such payment or distribution shall be paid
over and delivered forthwith to the Senior Representatives or as a court
of competent jurisdiction shall direct for application to the payment of
any due and unpaid Senior Indebtedness, to the extent necessary to pay
all such due and unpaid Senior Indebtedness in cash or cash equivalents,
after giving effect to any concurrent payment to or for the holders of
Senior Indebtedness.
Section 11.04 Trustee's Relation to Senior Indebtedness.
------------------------------------------
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Eleven (and in
Article 10 with respect to any Guarantor Senior Indebtedness), and no
implied covenants or obligations with respect to the holders of 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
Senior Indebtedness and the Trustee shall not be liable to any holder of
Senior Indebtedness if it shall mistakenly pay over or deliver to
Holders, the Company, any Note Guarantor or any other Person moneys or
assets to which any holder of Senior Indebtedness shall be entitled by
virtue of this Article Eleven or otherwise.
Section 11.05 Subrogation to Rights of Holders of Senior
------------------------------------------
Indebtedness. Upon the payment in full in Cash or Cash Equivalents of
------------
all Senior Indebtedness, the Holders of the Notes shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable
to the Senior Indebtedness until the principal of, premium, if any, and
interest on the Notes shall be paid in full in Cash or Cash Equivalents.
For purposes of such subrogation, no payments or distributions to the
holders of Senior Indebtedness of any cash, property or securities to
which the Holders of the Notes or the Trustee would be entitled except
for the provisions of this Article, and no payments over pursuant to the
provisions of this Article to the holders of Senior Indebtedness by
Holders of the Notes or the Trustee shall, as among the Company, its
creditors other than holders of Senior Indebtedness, and the Holders of
the Notes, be deemed to be a payment or distribution by the Company to
or on account of the Senior Indebtedness.
If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article
Eleven shall have been applied, pursuant to the provisions of this
Article Eleven, to the
payment of all amounts payable under the Senior Indebtedness of the
Company, then and in such case the Holders shall be entitled to receive
from the holders of such Senior Indebtedness at the time outstanding any
payments or distributions received by such holders of such Senior
Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full in cash
or cash equivalents.
Section 11.06 Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article Eleven are and are intended solely for
the purpose of defining the relative rights of the Holders of the Notes
on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article Eleven or elsewhere in this
Indenture or in the Notes is intended to or shall (a) impair, as among
the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Notes, the obligation of the Company, which is
absolute and unconditional, to pay to the Holders of the Notes the
principal of, premium, if any, and interest on the Notes as and when the
same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the
Notes and creditors of the Company other than the holders of Senior
Indebtedness; or (c) prevent the Trustee or the Holder of any Note from
exercising all remedies otherwise permitted by applicable law upon a
Default or an Event of Default under this Indenture, subject to the
rights, if any, under this Article Eleven of the holders of Senior
Indebtedness (1) in any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other
marshalling of assets and liabilities of the Company referred to in
Section 11.02, to receive, pursuant to and in accordance with such
Section, cash, property and securities otherwise payable or deliverable
to the Trustee or such Holder, or (2) under the conditions specified in
Section 11.03, to prevent any payment prohibited by such Section or
enforce their rights pursuant to Section 11.03(c).
The failure to make a payment on account of any Senior
Subordinated Note Obligations by reason of any provision of this Article
Eleven shall not be construed as preventing the occurrence of a Default
or an Event of Default hereunder.
Section 11.07 Trustee to Effectuate Subordination. Each
------------------------------------
Holder of a Note by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article
Eleven and appoints the Trustee his attorney-in-fact for any and all
such purposes, including, in the event of any dissolution, winding-up,
liquidation or reorganization of the Company whether in bankruptcy,
insolvency, receivership proceedings, or otherwise, the timely filing of
a claim for the unpaid balance of the Indebtedness of the Company owing
to such Holder in the form required in such proceedings and the causing
of such claim to be approved. If the Trustee does not file such a claim
prior to 30 days before the expiration of the time to file such a claim,
the holders of Senior Indebtedness, or any Senior Representative, may
file such a claim on behalf of Holders of the Notes.
Section 11.08 No Waiver of Subordination Provisions.
-------------------------------------
(a) No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way
be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such
holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
(b) Without limiting the generality of subsection (a) of this
Section 11.08, the holders of Senior Indebtedness may, at any time and
from time to time, without the consent of or notice to the Trustee or
the Holders of the Notes, without incurring responsibility to the
Holders of the Notes and without impairing or releasing the sub
ordination provided in this Article Eleven or the obligations hereunder
of the Holders of the Notes to the holders of Senior Indebtedness, do
any one or more of the following: (1) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (2) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (3) release any Person liable in
any manner for the collection or payment of Senior Indebtedness; and (4)
exercise or refrain from exercising any rights against the Company and
any other Person; provided that in no event shall any such actions limit
the right of the Holders of the Notes to take any action to accelerate
the maturity of the Notes pursuant to Article Six hereof or to pursue
any rights or remedies hereunder or under applicable laws if the taking
of such action does not otherwise violate the terms of this Indenture.
Section 11.09 Notice to Trustee. (a) The Company shall give
-----------------
prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in
respect of the Notes. Notwithstanding the provisions of this Article
Eleven or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of
the Notes, unless and until the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or
from any trustee, fiduciary or agent therefor; and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of
this Section 11.09, shall be entitled in all respects to assume that no
such facts exist; provided that if the Trustee shall not have received
the notice provided for in this Section 11.09 at least two Business Days
prior to the date upon which by the terms hereof any money may become
payable for any purpose under this Indenture (including, without
limitation, the payment of the principal of, premium, if any, or
interest on any Note),
then, anything herein contained to the contrary notwithstanding but
without limiting the rights and remedies of the holders of Senior
Indebtedness or any trustee, fiduciary or agent thereof, the Trustee
shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not
be affected by any notice to the contrary which may be received by it
within two Business Days prior to such date; nor shall the Trustee be
charged with knowledge of the curing of any such default or the
elimination of the act or condition preventing any such payment unless
and until the Trustee shall have received an Officers' Certificate to
such effect.
(b) Subject to the provisions of Section 7.01, the Trustee shall
be entitled to rely on the delivery to it of a written notice to the
Trustee by a Person representing himself to be a holder of Senior
Indebtedness (or a representative, trustee, fiduciary or agent therefor)
to establish that such notice has been given by a holder of Senior
Indebtedness (or a representative, trustee, fiduciary or agent
therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as
a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Eleven, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Senior Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment
or distribution and any other facts pertinent to the rights of such
Person under this Article Eleven, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 11.10 Reliance on Judicial Order or Certificate of
--------------------------------------------
Liquidating Agent. Upon any payment or distribution of assets of the
-----------------
Company referred to in this Article Eleven, the Trustee, subject to the
provisions of Section 7.01, and the Holders, shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding-up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to
the Trustee or to the Holders, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other Indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this
Article; provided that the foregoing shall apply only if such court has
been fully apprised of the provisions of this Article Eleven. The
Trustee is not responsible for determining whether or not the court has
been fully apprised of the provisions of this Article Eleven.
Section 11.11 Rights of Trustee as a Holder of Senior
---------------------------------------
Indebtedness; Preservation of Trustee's Rights. The Trustee in its
----------------------------------------------
individual capacity shall be entitled to all the rights set forth in
this Article Eleven with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder. Nothing in this Article Eleven shall
apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.08.
Section 11.12 Article Applicable to Paying Agents. In case
------------------------------------
at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as
if such Paying Agent were named in this Article Eleven in addition to or
in place of the Trustee; provided that Section 11.11 shall not apply to
the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.
Section 11.13 No Suspension of Remedies. Nothing contained
-------------------------
in this Article Eleven shall limit the right of the Trustee or the
Holders of Notes to take any action to accelerate the maturity of the
Notes pursuant to Article Six or to pursue any rights or remedies
hereunder or under applicable law, subject to the rights, if any, under
this Article Eleven of the holders, from time to time, of Senior
Indebtedness.
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01 Trust Indenture Act of 1939. This Indenture
---------------------------
is subject to the provisions of the TIA that are required to be a part
of this Indenture, and shall, to the extent applicable, be governed by
such provisions.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
Section 12.02 Notices. Any notice or communication shall be
-------
sufficiently given if in writing and delivered in person or mailed by
first class mail, postage prepaid, addressed as follows:
If to the Company or any Note Guarantor to:
Telegroup, Inc.
2098 Nutmeg Avenue
Fairfield, Iowa 52556
Attention: Douglas Neish
Telecopy: (515) 469-4610
With a copy to:
Swidler & Berlin
3000 K Street, N.W.
Suite 300
Washington, D.C. 20007-5116
Attention: John J. Klusaritz, Esq.
Telecopy: (202) 424-7645
If to the Trustee to:
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Global Trust Securities
The parties hereto by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed, postage prepaid, to a
Holder, including any notice delivered in connection with TIA Section
310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b),
shall be mailed by first class mail to such Holder at the address of
such Holder as it appears on the Notes register maintained by the
Registrar and shall be sufficiently given to such Holder if so mailed
within the time prescribed. Copies of any such communication or notice
to a Holder shall also be mailed to the Trustee.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Holders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives
it.
Section 12.03 Communication by Holders with Other Holders.
-------------------------------------------
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Notes.
The Company, the
Trustee, the Registrar and any other Person shall have the protection of
TIA Section 312(c).
Section 12.04 Certificate and Opinion as to Conditions
----------------------------------------
Precedent. Upon any request or application by the Company to the
---------
Trustee to take or refrain from taking any action under this Indenture,
the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel in form and substance satisfactory to
the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Section 12.05 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has
made such examination or investigation as is reasonably necessary
to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with; provided
that with respect to matters of fact an Opinion of Counsel may rely
on an Officers' Certificate or certificates of public officials.
Section 12.06 Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Noteholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
Section 12.07 Legal Holiday. "Legal Holiday" is a Saturday,
-------------
a Sunday or a day on which banking institutions are not required to be
open in the State of New York. If a payment date is a Legal Holiday,
payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be
affected.
Section 12.08 Governing Law. THIS INDENTURE AND THE NOTES
-------------
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
Section 12.09 No Recourse Against Others. No director,
--------------------------
officer, employee, incorporator or stockholder, as such, of the Company,
any Subsidiary of the Company or any Note Guarantor shall have any
liability for any obligations of the Company under the Notes or this
Indenture or of a Note Guarantor under any Note Guarantee or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder by accepting a Note waives and releases all such
liability.
Section 12.10 Successors. All agreements of the Company and
----------
the Note Guarantors in this Indenture, the Notes and the Note Guarantees
shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successors.
Section 12.11 Multiple Originals. The parties may sign any
------------------
number of copies of this Indenture. Each signed copy shall be an
original, but all such executed copies together represent the same
agreement. One signed copy is enough to prove this Indenture.
Section 12.12 Separability. In case any provision in this
------------
Indenture, the Notes or any Note Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 12.13. Table of Contents, Headings, etc. The table
---------------------------------
of contents, cross-reference table and headings of the Articles and
Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no
way modify or restrict any of the terms or provisions hereof.
Section 12.14 Benefits of Indenture. Nothing in this
---------------------
Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, and the
Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture except to holders of Senior Indebtedness and
Guarantor Senior Indebtedness.
This Indenture may be signed in
any number of counterparts
with the same effect as if the signatures to each counterpart were upon
a single instrument, and all such counterparts together shall be deemed
an original of this Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
TELEGROUP, INC.
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Trustee
By:
--------------------------------
Name:
Title:
SCHEDULE 1
Existing Liens
SCHEDULE 2
Existing Indebtedness
US$-Equivalent
Indebtedness
Company Bank Currency Outstanding
------- ---- -------- ------------
EXHIBIT A
[FORM OF FACE OF NOTE]
12% Senior Subordinated Note due 2003
PPN
No. $
TELEGROUP, INC., a corporation incorporated under the laws of
the State of Iowa (herein called the "Company," which term includes any
successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to or registered
assigns, the principal sum of $ on November 27, 2003, at
the office or agency of the Company referred to below, and to pay
interest thereon on May 27 and November 27, in each year, commencing on
May 27, 1997, accruing from November 27, 1996 or from the most recent
Interest Payment Date to which interest has been paid or duly provided
for, at the rate of 12% per annum, until the principal hereof is paid or
duly provided for. Interest shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture
referred to on the reverse hereof, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close
of business on the Regular Record Date for such interest, which shall be
April 27 or October 27 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date (each a "Regular Record
Date"). Any such interest not so punctually paid, or duly provided for,
and interest on such defaulted interest at the rate borne by the Notes,
to the extent lawful, shall forthwith cease to be payable to the Holder
on such Regular Record Date, and may be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close
of business on a special record date for the payment of such defaulted
interest to be fixed by the Trustee, notice of which shall be given to
Holders of Notes not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such
notice as may be required by such exchange, all as more fully provided
in the Indenture.
Payment of the principal of, premium, if any, and interest on
this Note will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan in The City of New York, or
at such other office or agency of the Company as may be maintained for
such purpose, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and
private debts; provided that payment of interest may be made at the
option of the Company by check mailed to the address of the Person
entitled thereto as such address shall appear on the Note register
maintained by the Registrar, subject to Section 2.14 of the Indenture.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof by manual
signature, this Note shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: TELEGROUP, INC.
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:
----------------------------
Authorized Officer
[Form of Reverse of Note]
1. Indenture. This Note is one of a duly authorized issue of
---------
Notes of the Company designated as its 12% Senior Subordinated Notes due
2003, limited in aggregate principal amount to $20,000,000, which may be
issued under an indenture (herein called the "Indenture") dated as of
November 27, 1996, between Telegroup, Inc., an Iowa corporation, as
issuer (together with its successors, the "Company"), and The Chase
Manhattan Bank, as trustee (the "Trustee," which term includes any
successor Trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, duties, obligations and
immunities thereunder of the Company, any Note Guarantor, the Trustee
and the Holders of the Notes, and of the terms upon which the Notes are,
and are to be, authenticated and delivered.
All terms used in this Note which are defined in the Indenture
and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
No reference herein to the Indenture and no provisions of this
Note or of the Indenture shall alter or impair the absolute or
unconditional obligation of the Company and any Note Guarantor to pay
the principal of, premium, if any and interest on this Note at the
times, place, and rate, and in the coin or currency, herein prescribed.
2. Note Guarantees. This Note is entitled to a certain
---------------
senior subordinated Note Guarantee made for the benefit of the Holders.
Reference is hereby made to Article Ten of the Indenture for terms
relating to the Note Guarantors.
3. Subordination. The Indebtedness evidenced by the Notes
-------------
is, to the extent and in the manner provided in the Indenture,
subordinate and subject in right of payment to the prior payment in full
in cash or cash equivalents of all Senior Indebtedness and Guarantor
Senior Indebtedness as defined in the Indenture, and this Note is issued
subject to such provisions. Each Holder of this Note, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee, on behalf of such
Holder, to take such action as may be necessary or appropriate to
effectuate the subordination as provided in the Indenture and (c)
appoints the Trustee attorney-in-fact of such Holder for such purpose;
provided that the Indebtedness evidenced by this Note shall cease to be
so subordinate and subject in right of payment upon any defeasance of
this Note referred to in Paragraph 7 below.
4. Redemption.
----------
(a) Optional Redemption. The Notes are subject to
-------------------
redemption, at the option of the Company, as a whole or in part, at any
time on or after November 27, 1999 upon not less than 30 nor more than
60 days' prior notice at the following Redemption Prices (expressed as
percentages of the principal amount) if redeemed during the 12-month
period beginning on November 27 of the years indicated below:
REDEMPTION
YEAR PRICE
------------------------- --------------------
1999.................................... 110.000%
2000.................................... 106.667%
2001.................................... 103.333%
2002 and thereafter..................... 100.000%
plus accrued and unpaid interest, if any, to the Redemption Date, all as
provided in the Indenture.
(b) Optional Redemption Upon Public Equity Offering. In
-----------------------------------------------
addition, at any time and from time to time on or prior to January 1,
1998, the Company may redeem in the aggregate all, but not less than
all, of the original principal amount of the Notes with the proceeds of
its initial Public Equity Offering at a redemption price equal to 107%
of the principal amount thereof plus accrued and unpaid interest, if
any, to the Redemption Date. In order to effect the foregoing
redemption with the proceeds of an initial Public Equity Offering, the
redemption must be made within 60 days of the date of the consummation
of any such initial Public Equity Offering.
(c) Interest Payments. In the case of any redemption of
-----------------
Notes, interest installments whose Stated Maturity is on or prior to the
Redemption Date will be payable to the Holders of such Notes, or one or
more Predecessor Notes, of record at the close of business on the
relevant Record Date referred to on the face hereof. Notes (or portions
thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and
after the Redemption Date.
(d) Partial Redemption. In the event of redemption of this
------------------
Note in part only, a new Note or Notes for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation
hereof.
5. Offers to Purchase. Sections 4.15 and 4.16 of the
------------------
Indenture provide that following any Asset Sale and, upon the occurrence
of a Change of Control, and subject to further limitations contained
therein, the Company shall make an offer to purchase certain amounts of
the Notes in accordance with the procedures set forth in the Indenture.
6. Defaults and Remedies. If an Event of Default shall occur
---------------------
and be continuing, the principal of all of the outstanding Notes, plus
all accrued and unpaid interest, if any, to and including the date the
Notes are paid, may be declared due and payable in the manner and with
the effect provided in the Indenture.
7. Defeasance. The Indenture contains provisions (which
----------
provisions apply to this Note) for defeasance at any time of (a) the
entire indebtedness on this Note and (b) certain restrictive covenants
and related Defaults and Events of Default, in each case upon compliance
by the Company with certain conditions set forth therein.
8. Amendments and Waivers. The Indenture permits, with
----------------------
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights
of the Holders under the Indenture at any time by the Company, any Note
Guarantor and the Trustee with the consent of the Holders of not less
than a majority in aggregate principal amount of the Notes at the time
outstanding. The Indenture also contains provisions permitting the
Holders of specified percentages in aggregate principal
amount of the Notes at the time outstanding, on behalf of the Holders of
all the Notes, to waive compliance by the Company and any Note Guarantor
with certain provisions of the Indenture and certain past Defaults under
the Indenture and this Note and their consequences. Any such consent or
waiver by or on behalf of the Holder of this Note shall be conclusive
and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
9. Denominations, Transfer and Exchange. The Notes are
------------------------------------
issuable only in registered form without coupons. As provided in the
Indenture and subject to certain limitations therein set forth, the
Notes are exchangeable for a like aggregate principal amount of Notes of
a different authorized denomination, as requested by the Holder
surrendering the same.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable
on the Note register of the Company, upon surrender of this Note for
registration of transfer at the office or agency of the Company
maintained for such purpose in the Borough of Manhattan in The City of
New York or at such other office or agency of the Company as may be
maintained for such purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and
the Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
No service charge shall be made for any registration of
transfer or exchange or redemption of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
10. Persons Deemed Owners. Prior to and at the time of due
---------------------
presentment of this Note for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person
in whose name this Note is registered as the owner hereof for all pur-
poses, whether or not this Note shall be overdue, and neither
the Company, the Trustee nor any agent shall be affected by notice to
the contrary.
11. Governing Law. THIS NOTE SHALL BE GOVERNED BY THE LAWS
-------------
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAW THEREOF.
12. Selection and Notice. In the event that less than all of
--------------------
the Notes are to be redeemed at any time, selection of such Notes for
redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on
which the Notes are listed or, if the Notes are not then listed on a
national securities exchange, on a pro rata basis, by lot or by such
method as the Trustee shall deem fair and appropriate. Notice of
redemption shall be mailed by first-class mail at least 30 but not more
than 60 days before the redemption date to each Holder of Notes to be
redeemed at its registered address. If any Note is to be redeemed in
part only, the notice of redemption that relates to such Note shall
state the portion of the principal amount thereof to be redeemed. A new
Note in a principal amount equal to the unredeemed portion thereof will
be issued in the name of the Holder thereof upon surrender for
cancellation of the Note called for redemption. On and after the
redemption date, interest will cease to accrue on Notes or portions
thereof called for redemption and accepted for payment.
13. Abbreviations. The following abbreviations, when used in
-------------
the inscription on the face of this Note, shall be construed as though
they were written out in full according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT
MIN ACT - ___________Custodian___________
(Cust) (Minor)
under Uniform Gifts to Minors
Act_____________________
(State)
Additional abbreviations may also be used though not in the above list.
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Note purchased by the Company
pursuant to Section 4.15 or 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ]
Section 4.16 [ ]
If you wish to have a portion of this Note purchased by the
Company pursuant to Section 4.15 or 4.16 of the Indenture, state the
amount:
$
----------------------
Date: Your Signature:
----------------------- -----------------------
(Sign exactly as your name appears on
the other side of this Note)
Signature Guarantee:
--------------------------
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Note to
-----------------------------------------------------------------
(Insert assignee's social security or tax ID number)
----------------
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Print or type assignee's name, address and zip code) and irrevocably
appoint
-----------------------------------------------------------------------
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
-----------------------------------------------------------------------
Date: Your Signature:
------------------------------ -----------------
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee:
-------------------------
-----------------------------------------------------------------------
------------
Telegroup, Inc., as Issuer
and
The Chase Manhattan Bank, as Trustee
---------------
INDENTURE
Dated as of November 27, 1996
---------------
$20,000,000
12% Senior Subordinated Notes due 2003
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.............................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act......24
Section 1.03. Rules of Construction..................................24
ARTICLE TWO
THE NOTES
Section 2.01. Authorized Principal Amount of Notes;
Conditions to Issuance of Notes........................25
Section 2.02. Forms and Dating.......................................25
Section 2.03. Execution and Authentication...........................26
Section 2.04. Registrar and Paying Agent.............................26
Section 2.05. Paying Agent to Hold Money in Trust....................27
Section 2.06. Noteholder Lists.......................................28
Section 2.07. Transfer and Exchange..................................28
Section 2.08. Replacement Notes......................................28
Section 2.09. Outstanding Notes......................................29
Section 2.10. Treasury Notes.........................................29
Section 2.11. Temporary Notes........................................29
Section 2.12. Cancellation...........................................30
Section 2.13. Defaulted Interest.....................................30
Section 2.14. Deposit of Moneys......................................30
Section 2.15. Computation of Interest................................31
ARTICLE THREE
REDEMPTION OF NOTES
Section 3.01. Notices to the Trustee.................................31
Section 3.02. Selection of Notes to Be Redeemed......................31
Section 3.03. Notice of Redemption...................................32
Section 3.04. Effect of Notice of Redemption.........................33
Section 3.05. Deposit of Redemption Price............................33
Section 3.06. Notes Redeemed or Purchased in Part....................34
ARTICLE FOUR
COVENANTS
Section 4.01. Payment of Notes......................................34
Section 4.02. Maintenance of Office or Agency.......................34
Section 4.03. Corporate Existence...................................35
Section 4.04. Payment of Taxes and Other Claims.....................35
Section 4.05. Maintenance of Properties.............................36
Section 4.06. Compliance Certificate; Notice of Default.............36
Section 4.07. Waiver of Stay, Extension or Usury Laws...............37
Section 4.08. Limitation on Indebtedness............................37
Section 4.09. Limitation on Restricted Payments.....................39
Section 4.10. Limitation on Transactions with Affiliates............40
Section 4.11. Limitation on Certain Liens...........................42
Section 4.12. Limitation on Other Senior Subordinated Indebtedness..42
Section 4.13. Limitation on the Sale or Issuance of Preferred
Stock of Subsidiaries................................42
Section 4.14. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries..................43
Section 4.15. Limitation on Disposition of Proceeds of Asset Sales..43
Section 4.16. Change of Control.....................................46
Section 4.17. Financial Statements and Reports......................49
Section 4.18. Investment Company Act................................51
Section 4.19. Insurance.............................................51
Section 4.20. Compliance with Laws; Maintenance of Licenses.........51
Section 4.21. Information to Prospective Purchasers.................52
Section 4.22. Private Placement Number..............................52
Section 4.23. Future Note Guarantors...............................52
ARTICLE FIVE
SUCCESSOR CORPORATION
Section 5.01. Merger, Consolidation and Sale of Assets..............53
Section 5.02. Successor Substituted.................................54
ARTICLE SIX
REMEDIES
Section 6.01. Events of Default.....................................54
Section 6.02. Acceleration..........................................57
Section 6.03. Other Remedies........................................59
Section 6.04. Waiver of Past Defaults...............................60
Section 6.05. Control by Majority...................................60
Section 6.06. Limitation on Suits...................................60
Section 6.07. Right of Holders to Receive Payment...................61
Section 6.08. Collection Suit by Trustee............................61
Section 6.09. Trustee May File Proofs of Claims.....................61
Section 6.10. Priorities............................................62
Section 6.11. Undertaking for Costs.................................62
Section 6.12. Restoration of Rights and Remedies....................63
ARTICLE SEVEN
TRUSTEE
Section 7.01. Duties................................................63
Section 7.02. Rights of Trustee.....................................64
Section 7.03. Individual Rights of Trustee..........................66
Section 7.04. Trustee's Disclaimer..................................66
Section 7.05. Notice of Default.....................................66
Section 7.06. Money Held in Trust...................................66
Section 7.07. Reports by Trustee to Holders.........................66
Section 7.08. Compensation and Indemnity............................67
Section 7.09. Replacement of Trustee................................68
Section 7.10. Successor Trustee by Merger, etc......................69
Section 7.11. Eligibility; Disqualification.........................70
Section 7.12. Preferential Collection of Claims Against Company.....70
ARTICLE EIGHT SATISFACTION
AND DISCHARGE OF INDENTURE
Section 8.01. Termination of the Company's Obligations..............70
Section 8.02. Defeasance and Covenant Defeasance....................72
Section 8.03. Application of Trust Money............................76
Section 8.04. Repayment to Company or Note Guarantors...............76
Section 8.05. Reinstatement.........................................77
ARTICLE NINE AMENDMENTS,
SUPPLEMENTS AND WAIVERS
Section 9.01. Without Consent of Holders............................77
Section 9.02. With Consent of Holders...............................78
Section 9.03. Revocation and Effect of Consents.....................80
Section 9.04. Notation on or Exchange of Notes......................81
Section 9.05. Trustee May Sign Amendments, etc......................81
ARTICLE TEN GUARANTEE
OF NOTES
Section 10.01. Note Guarantee...................................... 81
Section 10.02. Execution and Delivery by Holding of Note Guarantee..83
Section 10.03. Additional Note Guarantors...........................84
Section 10.04. Note Guarantee Obligations Subordinated
to Guarantor Senior Indebtedness....................84
Section 10.05. Payment Over of Proceeds upon Dissolution, etc.......85
Section 10.06. Suspension of Note Guarantee Obligations When
Guarantor Senior Indebtedness in Default...........87
Section 10.07. Release of Note Guarantee............................88
Section 10.08. Waiver of Subrogation................................88
Section 10.09. Provisions Solely to Define Relative Rights..........89
Section 10.10. Trustee to Effectuate Subordination. ...............89
Section 10.11. No Waiver of Subordination Provisions................90
Section 10.12. Notice to Trustee....................................91
Section 10.13. Reliance on Judicial Order or Certificate of
Liquidating Agent Regarding Dissolution, etc. .....92
Section 10.14. Rights of Trustee as a Holder of Guarantor Senior
Indebtedness; Preservation of Trustee's Rights.....92
Section 10.15. Article Ten Applicable to Paying Agents..............93
Section 10.16. No Suspension of Remedies............................93
Section 10.17. Trustee's Relation to Guarantor Senior Indebtedness..93
Section 10.18. Subrogation..........................................93
ARTICLE ELEVEN SUBORDINATION
OF NOTES
Section 11.01. Notes Subordinate to Senior Indebtedness............94
Section 11.02. Payment over of Proceeds upon Dissolution, etc......95
Section 11.03. Suspension of Payment When Senior Indebtedness
in Default........................................96
Section 11.04. Trustee's Relation to Senior Indebtedness...........98
Section 11.05. Subrogation to Rights of Holders of Senior
Indebtedness......................................99
Section 11.06. Provisions Solely to Define Relative Rights.........99
Section 11.07. Trustee to Effectuate Subordination............... 100
Section 11.08. No Waiver of Subordination Provisions..............100
Section 11.09. Notice to Trustee..................................101
Section 11.10. Reliance on Judicial Order or Certificate of
Liquidating Agent.................................102
Section 11.11. Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights....103
Section 11.12. Article Applicable to Paying Agents................103
Section 11.13. No Suspension of Remedies..........................103
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Trust Indenture Act of 1939..........................103
Section 12.02. Notices..............................................104
Section 12.03. Communication by Holders with Other Holders..........105
Section 12.04. Certificate and Opinion as to
Conditions Precedent...............................105
Section 12.05. Statements Required in Certificate or Opinion........105
Section 12.06. Rules by Trustee, Paying Agent, Registrar............106
Section 12.07. Legal Holiday........................................106
Section 12.08. Governing Law........................................106
Section 12.09. No Recourse Against Others...........................106
Section 12.10. Successors...........................................106
Section 12.11. Multiple Originals...................................106
Section 12.12. Separability.........................................107
Section 12.13. Table of Contents, Headings, etc.....................107
Section 12.14. Benefits of Indenture................................107
SIGNATURES...........................................................108
SCHEDULE 1 Existing Liens
SCHEDULE 2 Existing Indebtedness
EXHIBIT A Form of Note