1
EXHIBIT 4.9
CEX Holdings, Inc.
as Issuer
Corporate Express, Inc.
and the other Guarantors
listed on Schedule A hereto
as Guarantors
$550,000,000
9 5/8% Senior Subordinated Notes
due 2008
_____________
INDENTURE
Dated as of May 29, 1998
_____________
The Bank of New York
Trustee
2
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 1.03 Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 1.04 Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 2.02 Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 2.03 Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.04 Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 2.05 Holder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 2.07 Replacement Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 2.08 Outstanding Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 2.09 Treasury Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 2.10 Temporary Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 2.11 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 2.12 Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 2.13 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 3.02 Selection of Notes to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 3.03 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 3.04 Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 3.05 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 3.06 Notes Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
i
3
Page
----
Section 3.07 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 3.08 No Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 3.09 Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 4.02 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 4.03 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 4.04 Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.05 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.06 Stay, Extension and Usury Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 4.07 Repurchase of Notes at the Option of the Holder Upon a Change of Control . . . . . . . . . . . . . . 55
Section 4.08 Limitation on Sale of Assets and Subsidiary Stock . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 4.09 Limitation on Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 4.10 Limitation on Incurrence of Additional Indebtedness and Disqualified
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Section 4.11 Limitations on Liens Securing Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Section 4.12 Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries . . . . . . . . . . . 68
Section 4.13 Limitations on Layering Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 4.14 Limitations on Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Section 4.15 Future Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 4.16 Limitations on Merger of Subsidiary Guarantors and Release
of Subsidiary Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 4.17 Limitation on Status as an Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE 5
SUCCESSORS
Section 5.01 Limitation on Merger, Sale or Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Section 5.02 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ii
4
Page
----
Section 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Section 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 6.05 Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Section 6.07 Rights of Holders of Notes to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 6.08 Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 6.09 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Section 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Section 7.02 Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 7.03 Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 7.04 Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 7.05 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 7.06 Reports by Trustee to Holders of the Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 7.07 Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 7.08 Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Section 7.09 Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 7.10 Eligibility; Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Section 7.11 Preferential Collection of Claims Against Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . 84
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . 85
Section 8.02 Legal Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 8.03 Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 8.04 Conditions to Legal or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 8.05 Deposited Money and Government Securities to be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Section 8.06 Repayment to Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
iii
5
Page
----
Section 8.07 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Section 9.02 With Consent of Holders of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Section 9.03 Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 9.04 Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 9.05 Notation on or Exchange of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 9.06 Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Section 10.02 Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 10.03 Default on Designated Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Section 10.04 Acceleration of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 10.05 When Distribution Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
Section 10.06 Notice by Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 10.07 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 10.08 Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Section 10.9 Subordination May Not Be Impaired by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 10.10 Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 10.11 Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 10.12 Authorization to Effect Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 10.13 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
ARTICLE 11
GUARANTEES
Section 11.01 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
Section 11.02 Execution and Delivery of Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Section 11.03 Guarantors May Consolidate, etc., on Certain Terms . . . . . . . . . . . . . . . . . . . . . . . . . 101
Section 11.04 Releases Following Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
iv
6
Page
----
Section 11.05 Limitation of Guarantor's Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 11.06 Application of Certain Terms and Provisions to the Guarantor . . . . . . . . . . . . . . . . . . . . 102
Section 11.07 Subordination of Subsidiary Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 12.02 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Section 12.03 Communication by Holders of Notes with Other Holders of Notes . . . . . . . . . . . . . . . . . . . 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 and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 12.07 No Personal Liability of Directors, Officers, Employees and Stockholders . . . . . . . . . . . . . . 106
Section 12.08 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 12.09 No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 12.10 Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 12.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Section 12.12 Counterpart Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Section 12.13 Table of Contents, Headings, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
EXHIBITS
Exhibit A FORM OF NOTE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A-1
Exhibit B FORM OF GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
Exhibit C CERTIFICATE OF TRANSFEROR . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
v
7
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 12.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 12.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.09; 12.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.02; 12.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(2)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 12.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(1)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.01
- ---------------------
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
8
INDENTURE dated as of May 29, 1998, among CEX Holdings, Inc.,
a Colorado corporation (the "Issuer") and a wholly owned subsidiary of
Corporate Express, Inc., a Colorado corporation (the "Parent"), the entities
listed in Schedule A hereto as guarantors (collectively, the "Guarantors"), and
The Bank of New York, a New York banking corporation, as trustee (the
"Trustee").
Each party agrees as follows for the benefit of each other and
for the equal and ratable benefit of the holders (the "Holders") of the 95/8%
Series A Senior Subordinated Notes due 2008 (the "Series A Notes") and the
95/8% Series B Senior Subordinated Notes due 2008 (the "Series B Notes" and,
together with the Series A Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01 DEFINITIONS
"144A Global Note" means a global note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, an registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Acquired Indebtedness" means Indebtedness or Disqualified Capital
Stock of any Person existing at the time such Person becomes a Subsidiary of
the Issuer, including by designation, or is merged or consolidated into or
with the Issuer or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any Person or
all or substantially all the assets of any Person by any other Person, whether
by purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by
contract, or otherwise, provided that a Beneficial Owner of 20% or more of the
total voting power normally entitled to vote in the election of directors,
managers or trustees, as applicable, shall for such purposes be deemed to
constitute control.
"Additional Notes" means additional Notes which may be issued after
the Issue Date pursuant to this Indenture (other than pursuant to an Exchange
Offer or otherwise in exchange for or in replacement of outstanding Notes).
9
"Agent" means any Registrar, Paying Agent or co-registrar.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer
or exchange.
"Assets to Be Disposed of" means assets identified in an Officer's
Certificate at the time of an Acquisition as assets the Issuer or the acquiring
Subsidiary intends to dispose of within 180 days of such Acquisition.
"Average Life" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (a) the sum of
the products (i) of the number of years (calculated to the nearest one-twelfth)
from the date of determination to the date or dates of each successive
scheduled principal (or redemption) payment of such security or instrument and
(ii) the amount of each such respective principal (or redemption) payment by
(b) the sum of all such principal (or redemption) payments.
"Beneficial Owner" or "beneficial owner" for purposes of the
definitions of Change of Control and Affiliate has the meaning attributed to it
in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a "Person" shall be deemed to
have "beneficial ownership" of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only after the
passage of time.
"Board of Directors" means, with respect to any Person, the board of
directors of such Person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the board of directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Contribution" means any contribution to the equity of the
Issuer from a direct or indirect parent of the Issuer for which no
consideration other than the issuance of common stock with no redemption rights
and no special preferences, privileges or voting rights is given.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such
2
10
obligations at any date shall be the capitalized amount of such obligations at
such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not itself otherwise capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that corporation.
"Cash Equivalent" means (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (b) U.S. dollar denominated
(or foreign currency fully hedged) time deposits, certificates of deposit,
Eurodollar time deposits or Eurodollar Certificates of deposit of (i) any
domestic commercial bank of recognized standing having capital and surplus in
excess of $100,000,000 or (ii) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or from Moody's is at
least P-1 or the equivalent thereof (any such bank being an "Approved Lender"),
in each case with maturities of not more than twelve months from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued by
any Approved Lender (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-2 (or the
equivalent thereof) or better by S&P or P-2 (or the equivalent thereof) or
better by Moody's and maturing within twelve months after the date of
acquisition, and (d) repurchase agreements with a bank or trust company or
recognized securities dealer having capital and surplus in excess of
$100,000,000 for direct obligations issued by or fully guaranteed by the United
States of America in which the Company will have a perfected first priority
security interest (subject to no other Liens) and having, on the date of
purchase thereof, a fair market value of at least 100% of the amount of
repurchase obligations, (e) interests in money market mutual funds which invest
solely in assets or securities of the type described in subparagraphs (a), (b),
(c) or (d) hereof and (f) in the case of any Foreign Subsidiary: (i) direct
obligations of the sovereign nation (or any agency thereof) in which such
Foreign Subsidiary is organized and is conducting business or in obligations
fully and unconditionally guaranteed by such sovereign nation (or any agency
thereof), (ii) investments of the type and maturity described in clauses (a)
through (e) above of foreign obligors, which investments or obligors (or the
direct or indirect parents of such obligors) have ratings described in such
clauses or equivalent ratings from comparable foreign rating agencies or (iii)
investments of the type and maturity described in clauses (a) through (e) above
of foreign obligors (or the direct or indirect parents of such obligors), which
investments or obligors (or the direct or indirect parents of such obligors)
are not rated as provided in such clauses or in clause (ii) above but which
are, in the reasonable judgment of the Company, comparable in investment
quality to such investments and obligors (or the direct or indirect parent of
such obligors).
3
11
"Cedel" means Cedel Bank, S.A. or its successors.
"Change of Control" means (i) any merger or consolidation of the
Issuer or Parent with or into any Person or any sale, transfer or other
conveyance, whether direct or indirect, of all or substantially all of the
assets of the Issuer or Parent, on a consolidated basis, in one transaction or
a series of related transactions, if, immediately after giving effect to such
transaction(s), any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable) is or
becomes the "beneficial owner," directly or indirectly, of more than 50% of the
total voting power in the aggregate normally entitled to vote in the election
of directors, managers, or trustees, as applicable, of the transferee(s) or
surviving entity or entities, (ii) any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or
not applicable) is or becomes the "beneficial owner," directly or indirectly,
of more than 50% of the total voting power in the aggregate of all classes of
Capital Stock of the Issuer (other than the Parent so long as the Parent owns
100% of such voting power) or Parent then outstanding normally entitled to vote
in elections of directors, (iii) during any period of 12 consecutive months
after the Issue Date, individuals who at the beginning of any such 12-month
period constituted the Board of Directors of either the Issuer or Parent
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the shareholders of the Issuer or Parent, as
applicable, was approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved, including new
directors designated in or provided for in an agreement regarding the merger,
consolidation or sale, transfer or other conveyance, all or substantially all
of the assets of the Issuer or the Parent, if such agreement was approved by a
vote of such majority of directors) cease for any reason to constitute a
majority of the Board of Directors of the Issuer or Parent then in office, as
applicable, or (iv) Parent ceases to own 100% of the Equity Interests of the
Issuer.
"Claim" means any claim for damages arising from the purchase of the
Notes or for reimbursement or contribution on the account of such claim, in
each case to the extent relating to the purchase price of the Notes.
"Consolidated Coverage Ratio" of any Person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis,
of (a) the aggregate amount of Consolidated EBITDA of such Person attributable
to continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference
4
12
Period; provided, that for purposes of such calculation, (i) Acquisitions which
occurred during the Reference Period or subsequent to the Reference Period and
on or prior to the Transaction Date shall be assumed to have occurred on the
first day of the Reference Period, (ii) transactions giving rise to the need to
calculate the Consolidated Coverage Ratio shall be assumed to have occurred on
the first day of the Reference Period without regard to the effect of
subsection (c) of the definition of "Consolidated Net Income", (iii) the
incurrence of any Indebtedness or issuance of any Disqualified Capital Stock
during the Reference Period or subsequent to the Reference Period and on or
prior to the Transaction Date (and the application of the proceeds therefrom to
the extent used to refinance or retire other Indebtedness) shall be assumed to
have occurred on the first day of the Reference Period, and (iv) the
Consolidated Fixed Charges of such Person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a pro forma basis as if the
average rate in effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire period, unless
such Person or any of its Subsidiaries is a party to an Interest Swap or
Hedging Obligation (which shall remain in effect for the 12-month period
immediately following the Transaction Date) that has the effect of fixing the
interest rate on the date of computation, in which case such rate (whether
higher or lower) shall be used.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such Person for such period adjusted (a)
to eliminate (i) non-recurring charges related to the assimilation of Persons
acquired, and the expenses of, any Acquisitions, including expenses incurred in
connection with the retirement of Acquired Indebtedness, (ii) the write-off of
debt financing fees associated with termination of credit facilities, (iii) any
non-cash pre-Acquisition write-offs or similar charges incurred by a Person
acquired in an Acquisition that as a result of pooling of interest are included
in the Parent's consolidated financial statements for such period to the extent
such write-offs or charges would either (x) not be included as an expense on
the Parent's consolidated financial statements had the Acquisition not been
accounted for as a pooling of interests or (y) be eliminated by the provisions
hereof if recorded by the Parent for such period and (iv) any non-cash
write-offs or similar charges which are recorded following an Acquisition in
the Parent's consolidated financial statements with respect to an acquired
Person's assets to the extent such amounts were accounted for in the first
twelve months following the date such Acquisition was consummated and (b) to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Consolidated
income tax expense, (ii) Consolidated depreciation and amortization expense
(including any accelerations thereof), (iii) Consolidated Fixed Charges, and
(iv) non-cash charges attributable to the grant, exercise or repurchase of
options or shares of Qualified Capital Stock to or from employees.
Notwithstanding the foregoing, the provision for taxes based on the income or
profits of, and the depreciation and amortization and other non-cash charges of
a Subsidiary of a Person will be added to
5
13
Consolidated Net Income to compute Consolidated EBITDA only to the extent (and
in the same proportion) that the net income of such Subsidiary was included in
calculating the Consolidated Net Income of such Person.
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such Person and its
Consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations, and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period,
(b) one-third of rental expense for such period attributable to operating
leases of such Person and its Consolidated Subsidiaries, (c) the amount of
dividends accrued or payable by such Person or any of its Consolidated
Subsidiaries in respect of Preferred Stock (other than by Subsidiaries of such
Person to such Person or such Person's Subsidiaries) and (d) interest expense
of Parent for such period with respect to the Parent Convertible Notes and any
refinancing indebtedness incurred with respect thereto. For purposes of this
definition, (x) interest on a Capitalized Lease Obligation shall be deemed to
accrue at an interest rate reasonably determined in good faith by the Issuer to
be the rate of interest implicit in such Capitalized Lease Obligation in
accordance with GAAP and (y) interest expense attributable to any Indebtedness
represented by the guaranty by such Person or a Subsidiary of such Person of an
obligation of another Person shall be deemed to be the interest expense
attributable to the Indebtedness guaranteed.
"Consolidated Leverage Ratio" shall mean the ratio on a pro forma
basis of (i) the aggregate outstanding amount of Indebtedness of the Issuer and
its Consolidated Subsidiaries (excluding Indebtedness ranking subordinate to
the Notes and the Guarantees and Indebtedness of any Foreign Subsidiary that is
non-recourse to the Issuer and its other Subsidiaries) as of the date of
calculation on a consolidated basis, after giving effect to the incurrence of
Indebtedness on such date, net of cash stated on the Parent's consolidated
balance sheet (excluding cash held at Parent) to (ii) the Consolidated EBITDA
of the Issuer for the four last full fiscal quarters ending on or prior to the
date of determination; provided, that for purposes of such calculation,
Acquisitions which occurred during the Reference Period or subsequent to the
Reference Period, and on or prior to the Transaction Date shall be assumed to
have occurred on the first day of the Reference Period.
"Consolidated Net Income" means, with respect to any Person for any
period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only
6
14
to the extent included in computing such net income (or loss) and without
duplication): (a) all gains and losses which are either extraordinary (as
determined in accordance with GAAP) or are either unusual or nonrecurring
(including any gain or loss from the sale or other disposition of assets
outside the ordinary course of business or from the issuance or sale of any
capital stock), (b) the net income, if positive, of any Person, other than a
Consolidated Subsidiary, in which such Person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to such Person or a
Consolidated Subsidiary of such Person during such period, but in any case not
in excess of such Person's pro rata share of such Person's net income for such
period, (c) the net income or loss of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition, and
(d) the net income, if positive, of any of such Person's Consolidated
Subsidiaries to the extent that the declaration or payment of dividends or
similar distributions is not at the time permitted by operation of the terms of
its charter or bylaws or any other agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to such Consolidated
Subsidiary, and (e) the net income of, or any dividends or other distributions
from, any Unrestricted Subsidiary, to the extent otherwise included, except to
the extent cash or Cash Equivalents are distributed to the Issuer or one of its
Subsidiaries in a transaction that does not relate to the liquidation of such
Unrestricted Subsidiary.
"Consolidated Subsidiary" means, for any Person, each Subsidiary of
such Person (whether now existing or hereafter created or acquired) the
financial statements of which are consolidated for financial statement
reporting purposes with the financial statements of such Person in accordance
with GAAP.
"Corporate Trust Office" shall be at the address of the Trustee
specified in Section 12.02 hereof or such other address as to which the Trustee
may give notice to the Issuer.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, until a successor will have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" will mean or include such successor.
7
15
"Designated Senior Debt" means, (a) so long as it is in effect, the
New Credit Facility and (b) at any time when the New Credit Facility is no
longer in effect any other Senior Debt designated by the Issuer to be
"Designated Senior Debt" that has an outstanding principal amount of at least
$20,000,000 at the time of such designation.
"Disqualified Capital Stock" means (a) except as set forth in (b),
with respect to any Person, Equity Interests of such Person that, by its terms
or by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time or
both would be, required to be redeemed or repurchased (including at the option
of the holder thereof) by such Person or any of its Subsidiaries, in whole or
in part, on or prior to the Stated Maturity of the Notes and (b) with respect
to any Subsidiary of such Person (including with respect to any Subsidiary of
the Issuer), any Equity Interests other than any common equity with no
preference, privileges, or redemption or repayment provisions.
"Disqualified Preferred Stock" means, with respect to any Person,
Equity Interests of such Person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time or both would be, required to
be redeemed or repurchased (including at the option of the holder thereof) by
such Person or any of its Subsidiaries, in whole or in part, on or prior to the
Stated Maturity of the Notes.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership or membership interests in, such Person.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successors, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Notes" means Series B Notes issued pursuant to an Exchange
Offer.
"Exchange Offer" means an offer that may be made by the Company
pursuant to the Registration Rights Agreement (or another similar agreement
entered into in connection with the issuance of Additional Notes) to exchange
Exchange Notes for Series A Notes.
"Excluded Person" means any Person who on the Issue Date is the
beneficial owner of at least 5% of the total voting power of the Issuer or
Parent normally entitled to vote in the election of directors of the Issuer or
Parent, as applicable, and all Related Persons of such Person, and, with
respect to the Issuer, the Parent.
8
16
"Excluded Subsidiary" means any Subsidiary which has assets with a
fair market value of $5,000,000 or less and is designated as an "Excluded
Subsidiary" by the Issuer; provided that at no time may the aggregate fair
market value of the assets of all Subsidiaries designated as "Excluded
Subsidiaries" exceed $25,000,000.
"Exempted Affiliate Transaction" means (a) reasonable and customary
financial advisory, securities underwriting or similar arrangements with
investment banking firms of national reputation, (b) issuances of Qualified
Capital Stock of the Issuer, (c) customary employee compensation or incentive
arrangements approved by a majority of independent (as to such transactions)
members of the Board of Directors of the Issuer, (d) dividends permitted under
the terms of Section 4.09 and payable, in form and amount, on a pro rata basis
to all holders of Capital Stock of the Issuer, and (e) transactions solely
between the Issuer or any of the Issuer's Subsidiaries or Unrestricted
Subsidiaries or solely among Subsidiaries or Unrestricted Subsidiaries of the
Issuer.
"Existing Assets" means property, plant and equipment and other
tangible business assets existing as of the Issue Date used in a Related
Business of the Issuer or the Guarantors, but does not include inventory, cash
or Cash Equivalents or intangible assets, and the proceeds from the sale,
disposition or other transfer of any Existing Assets outside the ordinary
course of business.
"Existing Indebtedness" means the Indebtedness of the Issuer and its
Subsidiaries (other than Indebtedness under the New Credit Facility) in
existence on the Issue Date, until such amounts are repaid.
"Finance Subsidiary" means any Subsidiary of the Issuer (other than a
Subsidiary Guarantor or a Foreign Subsidiary) organized for the sole purpose of
issuing Capital Stock or other securities and loaning the proceeds thereof to
the Issuer or a Subsidiary Guarantor and which engaged in no other transactions
except those incidental thereto.
"Finance Subsidiary Indebtedness" means Indebtedness of or
Disqualified Capital Stock issued by a Finance Subsidiary, which Indebtedness
or Disqualified Capital Stock does not mature and is not mandatorily redeemable
or redeemable at the option of the holder thereof, in whole or in part (other
than pursuant to customary change of control or asset sale provisions), prior
to the final Stated Maturity of the Notes.
"Foreign Subsidiary" means any Subsidiary of the Issuer which (a) is
not organized under the laws of the United States, any state thereof or the
District of Columbia, (b) conducts substantially all of its business operations
outside the United States of America, and (c) does not own, or have the benefit
of any Lien on, any Equity Interests of the Issuer or any Subsidiary Guarantor.
9
17
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect on the Issue Date.
"Global Notes" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, in the form of
Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Government Securities" means direct obligations of, or obligations
fully guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged.
"Guarantee" means the guarantees provided by the Guarantors hereunder.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such Person, to the
extent such liabilities and obligations would appear as a liability upon the
consolidated balance sheet of such Person in accordance with GAAP, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii)
evidenced by bonds, notes, debentures or similar instruments, or (iii)
representing the balance deferred and unpaid of the purchase price of any
property or services, except (other than accounts payable or other obligations
to trade creditors which have remained unpaid for greater than 60 days past
their original due date) those incurred in the ordinary course of its business
that would constitute ordinarily a trade payable to trade creditors; (b) all
liabilities and obligations, contingent or otherwise, of such Person (i)
evidenced by bankers' acceptances or similar instruments issued or accepted by
banks, (ii) for the payment of money relating to any Capitalized Lease
Obligation, or (iii) evidenced by a letter of credit or a reimbursement
obligation of such Person with respect to any letter of credit; (c) all net
obligations of such Person under Interest Swap and Hedging Obligations; (d) all
liabilities and obligations of others of the kind described in the preceding
clause (a), (b) or (c) that such Person has guaranteed or that is otherwise its
legal liability; and (e) any and all deferrals, renewals, extensions,
refinancings and refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (a), (b), (c) or (d), or this clause (e), whether or not
between or among the same parties; provided that any indebtedness which has
been defeased in accordance with GAAP or defeased pursuant to the deposit of
cash or
10
18
Government Securities (in an amount sufficient to satisfy all such indebtedness
obligations at maturity or redemption, as applicable, and all payments of
interest and premium, if any) in a trust or account created or pledged for the
sole benefit of the holders of such indebtedness, and subject to no other
Liens, and the other applicable terms of the instrument governing such
indebtedness, shall not constitute "Indebtedness."
"Indenture" means this Indenture, as amended or supplemented from time
to time.
"Indirect Participant" means any Person that settles transactions
through or maintains a direct or indirect custodial relationship with a
Participant.
"Initial Purchasers" means Donaldson, Lufkin & Jenrette Securities
Corporation, BT Alex. Brown Incorporated, Merrill Lynch, Pierce Fenner & Smith
Incorporated, NationsBanc Montgomery Securities LLC, First Chicago Capital
Markets, Inc. and BNY Capital Markets, Inc.
"Interest Swap and Hedging Obligation" means any obligation of any
Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or floating rate of interest on the same notional amount.
"Investment" by any Person in any other Person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities, including any options or warrants, of
such other person or any agreement to make any such acquisition; (b) the making
by such Person of any deposit with, or advance, loan or other extension of
credit to, such other Person (including the purchase of property from another
Person subject to an understanding or agreement, contingent or otherwise, to
resell such property to such other Person) or any commitment to make any such
advance, loan or extension (but excluding accounts receivable, endorsements for
collection or deposits arising in the ordinary course of business); (c) other
than guarantees of Indebtedness of the Issuer or any Guarantor to the extent
permitted by Section 4.10, the entering into by such Person of any guarantee
of, or other credit support or contingent obligation with respect to,
Indebtedness or other liability of such other Person; (d) the making of any
capital contribution by such Person to such other Person; and (e) the
designation by the Board of Directors of the Issuer of any Person to be an
Unrestricted Subsidiary. The Issuer shall be
11
19
deemed to make an Investment in an amount equal to the fair market value of the
net assets of any subsidiary (or, if neither the Issuer nor any of its
Subsidiaries has theretofore made an Investment in such subsidiary, in an
amount equal to the Investments being made), at the time that such subsidiary
is designated an Unrestricted Subsidiary, and any property transferred to an
Unrestricted Subsidiary from the Issuer or a Subsidiary of the Issuer shall be
deemed an Investment valued at its fair market value at the time of such
transfer.
"Issue Date" means the date of first issuance of the Notes under the
Indenture.
"Junior Securities" means any Qualified Capital Stock and any
Indebtedness of the Issuer or a Guarantor, as applicable, that is subordinated
in right of payment to the Notes or the Guarantee, as applicable, and has no
scheduled installment of principal due, by redemption, sinking fund payment or
otherwise, on or prior to the Stated Maturity of the Notes; provided that in
the case of subordination in respect of Senior Debt under the New Credit
Facility, "Junior Security" shall mean any Qualified Capital Stock and any
Indebtedness of the Issuer or the Guarantor, as applicable, that is issued to a
Holder on account of the Notes pursuant to an order or decree of a court of
competent jurisdiction in a reorganization proceeding under any applicable
bankruptcy or reorganization law, which Qualified Capital Stock or Indebtedness
(i) has a maturity, mandatory redemption obligation or put right, if any,
longer than, or occurring after the final maturity date of, all Senior Debt
outstanding under the New Credit Facility on the date of issuance of such
Qualified Capital Stock or Indebtedness (and to any securities issued in
exchange for any such Senior Debt), (ii) is unsecured, (iii) has an Average
Life longer than the security for which such Qualified Capital Stock or
Indebtedness is being exchanged, (iv) does not provide for terms, conditions or
covenants more onerous than those provided in the Notes and (v) by their terms
or by law are subordinated to Senior Debt outstanding under the New Credit
Facility on the date of issuance of such Qualified Capital Stock or
Indebtedness (and to any securities in exchange for any such Senior Debt) at
least to the same extent as the Notes.
Letter of Transmittal" means the letter of transmittal to be prepared
by the Issuer and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Liquidated Damages" means all Liquidated Damages then owing pursuant
to the Registration Rights Agreement.
12
20
"Moody's" means Moody's Investor Service, Inc. and its successors.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Issuer in the case of a sale of its Qualified
Capital Stock and by the Issuer and its Subsidiaries in respect of an Asset
Sale plus, in the case of an issuance of Qualified Capital Stock of the Issuer
upon any exercise, exchange or conversion of securities (including options,
warrants, rights and convertible or exchangeable debt) of the Issuer that were
issued for cash on or after the Issue Date, the amount of cash originally
received by the Issuer upon the issuance of such securities (including options,
warrants, rights and convertible or exchangeable debt) less, in each case, the
sum of all payments, fees, commissions and expenses (including, without
limitation, the fees and expenses of legal counsel and investment banking fees
and expenses) incurred in connection with such Asset Sale or sale of Qualified
Capital Stock, and, in the case of an Asset Sale only, less the amount
(estimated reasonably and in good faith by the Issuer) of income, franchise,
sales and other applicable taxes required to be paid resulting from such sale
by the Issuer or any of its respective Subsidiaries, in the taxable year that
such sale is consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax liability
resulting from any available operating losses and net operating loss
carryovers, tax credits and tax credit carryforwards and similar tax
attributes. "Net Cash Proceeds" also includes the amount of cash received by
the Issuer as a Capital Contribution from Parent.
"New Credit Facility" means the credit agreement dated as of April 17,
1998 by and among the Issuer, the Parent, certain financial institutions and
providing for an aggregate $250,000,000 term credit facility and an aggregate
$750,000,000 revolving credit facility, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such credit agreement and/or related documents may be
amended, restated, supplemented, renewed, replaced, refinanced (in whole or in
part) or otherwise modified from time to time whether or not with the same
agent, trustee, representative lenders or holders, and whether or not pursuant
to a single or multiple agreements or instruments, and, subject to the proviso
to the next succeeding sentence, irrespective of any changes in their terms and
conditions thereof. Without limiting the generality of the foregoing, the term
"New Credit Facility" shall include agreements in respect of Interest Swap and
Hedging Obligations with lenders at any time party to the New Credit Facility
(which Interest Swap and Hedging Obligations shall not be deemed to increase
the amount outstanding pursuant to the New Credit Facility for purposes of
determining compliance with Section 4.10 contained herein) and shall also
include any amendment, amendment and restatement, renewal, extension,
restructuring, supplement or modification to any New Credit Facility and all
refundings, refinancings and replacements (whether in whole or in part) of all
or any part of the New Credit Facility, including any agreement or agreements
(i) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby, (ii) adding or deleting borrowers or
13
21
guarantors thereunder, so long as borrowers and issuers include one or more of
the Issuer and its Subsidiaries and their respective successors and assigns,
(iii) increasing the amount of Indebtedness incurred thereunder or available to
be borrowed thereunder, provided, that on the date such increased Indebtedness
is incurred it would be permitted to be incurred under Section 4.10, or (iv)
otherwise altering the terms and conditions thereof.
"Non-Recourse Indebtedness" means Indebtedness (a) as to which neither
the Issuer nor any of its Subsidiaries (i) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (ii) is directly or indirectly liable (as a guarantor or
otherwise), or (iii) constitutes the lender; and (b) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Issuer or any of its Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"Notes Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Obligation" means any principal, premium, interest, penalties, fees,
reimbursements, damages, indemnification and other liabilities relating to
obligations of the Issuer or any Guarantor under the Notes or the Indenture,
including any liquidated damages pursuant to the Registration Rights Agreement.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President of
such Person.
"Officer's Certificate" means a certificate signed on behalf of the
Issuer or Subsidiary Guarantor, as applicable, by an officer of the Issuer or
Subsidiary Guarantor, as applicable, who must be the principal executive
officer, the principal financial officer or the principal accounting officer of
the Issuer or Subsidiary Guarantor, as applicable, that meets the requirements
set forth in this Indenture.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the trustee, that meets the requirements of Section
12.05 hereof. The counsel may be an employee of or counsel to the Company or
any Subsidiary of the Company.
"Parent Consolidated Leverage Ratio" shall mean the ratio on a pro
forma basis of (i) the aggregate outstanding amount of Indebtedness of the
Parent and its Consolidated Subsidiaries as of the date of calculation on a
consolidated basis, after giving effect to the
14
22
incurrence of Indebtedness and Disqualified Preferred Stock on such date, net
of cash stated on the Parent's consolidated balance sheet, plus the aggregate
liquidation preference of all Disqualified Preferred Stock of the Parent and
its Consolidated Subsidiaries to (ii) the Consolidated EBITDA of the Parent for
the four last full fiscal quarters ending on or prior to the date of
determination; provided, that for purposes of such calculation, Acquisitions
which occurred during the Reference Period or subsequent to the Reference
Period and on or prior to the Transaction Date shall be assumed to have
occurred on the first day of the Reference Period.
"Parent Convertible Notes" means the $325,000,000 aggregate principal
amount of 4 1/2% Convertible Notes due July 1, 2000 of the Parent issued
pursuant to this Indenture, dated as of June 24, 1996, between Parent and
Bankers Trust Company, as Trustee, as in existence on the Issue Date.
"Participant" means, with respect to the Depositary Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Permitted Indebtedness" means that:
(a) the Issuer, the Subsidiary Guarantors and the Foreign
Subsidiaries may incur Indebtedness solely in respect of bankers acceptances,
bank overdrafts, letters of credit and performance bonds (to the extent that
such incurrence does not result in the incurrence of any obligation to repay
any obligation relating to borrowed money of others), all in the ordinary
course of business in accordance with customary industry practices and for the
purposes customary in the Issuer's industry;
(b) the Issuer may incur Indebtedness to any Subsidiary
Guarantor or a Foreign Subsidiary, and any Subsidiary Guarantor or a Foreign
Subsidiary may incur Indebtedness to any other Subsidiary Guarantor or a
Foreign Subsidiary or to the Issuer; provided that the time any such
Indebtedness becomes held by any Person other than the Issuer or a Subsidiary
Guarantor or a Foreign Subsidiary shall be deemed an Incurrence Date; provided,
further, that in the case of Indebtedness of the Issuer, such obligations shall
be unsecured and subordinated in all respects to the Issuer's obligations
pursuant to the Notes;
(c) any Subsidiary Guarantor may guaranty any
Indebtedness of the Issuer or another Subsidiary Guarantor that was permitted
to be incurred pursuant to this Indenture, substantially concurrently with such
incurrence or at the time such Person becomes a Subsidiary Guarantor;
15
23
(d) a Receivables Subsidiary may incur Indebtedness in a
Qualified Receivables Transaction that is without recourse to the Issuer or
Parent or to any Subsidiary of the Issuer or of Parent or any of their assets
(other than Standard Securitization Undertakings and other than such
Receivables Subsidiary and its assets), and is not guaranteed by any such
Person and is not otherwise any such other Person's legal liability; and
(e) the Issuer and the Subsidiary Guarantors and the
Foreign Subsidiaries may incur Interest Swap and Hedging Obligations so long as
not for purposes of speculation for the purpose of fixing or hedging (i)
interest rate risk with respect to any floating Indebtedness that is permitted
by the terms of this Indenture to be outstanding or (ii) the value of foreign
currencies purchased or received by the Issuer or its Subsidiaries in the
ordinary course.
"Permitted Investment" means any Investment in (a) any of the Notes;
(b) Cash Equivalents; (c) intercompany notes to the extent permitted under
clause (b) of the definition of "Permitted Indebtedness; (d) Investments by the
Issuer or any Subsidiary Guarantor in any Person that is or immediately after
such Investment becomes a Subsidiary Guarantor, or immediately after such
Investment merges or consolidates into the Issuer or any Subsidiary Guarantor
in compliance with the terms of this Indenture, provided that such Person is
engaged in all material respects in a Related Business; (e) Investments by the
Issuer or any Subsidiary Guarantor in any Person that is or immediately after
such Investment becomes a Wholly Owned Foreign Subsidiary; provided that such
Person is engaged in all material respects in a Related Business (other than
Investments consisting of or from the contribution, sale, disposition or other
transfer of Existing Assets of the Issuer or a Subsidiary Guarantor or the
direct or indirect proceeds of any such Existing Assets, in each case outside
the ordinary course of business); (f) Investments in the Issuer by any
Subsidiary Guarantor, provided that in the case of Indebtedness constituting
any such Investment, such Indebtedness shall be unsecured and subordinated in
all respects to the Issuer's obligations under the Notes; (g) Investments in
securities of trade creditors or customers received in settlement of
obligations that arose in the ordinary course of business or pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency
of such trade creditors or customers; (h) Investments by the Issuer outstanding
on the Issue Date; (i) transactions or arrangements with officers or directors
of the Issuer or any Subsidiary Guarantor entered into in the ordinary course
of business (including compensation or employee benefit arrangements with any
officer or director of the Issuer or any Subsidiary Guarantor permitted under
Section 4.14); (j) the acquisition by a Receivables Subsidiary in connection
with a Qualified Receivables Transaction of Equity Interests of a trust or
other Person established by such Receivables Subsidiary to effect such
Qualified Receivables Transaction; (k) any Investment by the Issuer or any
Guarantor in a Receivables Subsidiary or any Investment by a Receivables
Subsidiary in any other Person, in each case in connection with Qualified
Receivables
16
24
Transaction; provided, that the foregoing Investment is in the form of a note
that the Receivables Subsidiary or other Person is required to repay as soon as
practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual arrangements with entities that
are not Affiliates entered into as part of a Qualified Receivables Transaction;
(l) Investments made as a result of the receipt of non-cash consideration from
a sale of assets that does not constitute an Asset Sale by reason of the de
minimus thresholds set forth in the definition thereof and from an Asset Sale
that was made pursuant to and in compliance with Section 4.08; and (m) any
acquisition of assets in exchange for the Qualified Capital Stock of the
Issuer.
"Permitted Lien" means (a) Liens existing on the Issue Date; (b) Liens
imposed by governmental authorities for taxes, assessments or other charges not
yet subject to penalty or which are being contested in good faith and by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the Issuer in accordance with GAAP; (c) statutory
liens of carriers, warehousemen, mechanics, materialmen, landlords, repairmen
or other like Liens arising by operation of law in the ordinary course of
business, provided that (i) the underlying obligations are not overdue for a
period of more than 30 days, or (ii) such Liens are being contested in good
faith and by appropriate proceedings and adequate reserves with respect thereto
are maintained on the books of the Issuer in accordance with GAAP; (d) Liens
securing the performance of bids, trade contracts (other than borrowed money),
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, zoning, similar restrictions and other similar
encumbrances or title defects which, singly or in the aggregate, do not in any
case materially detract from the value of the property subject thereto (as such
property is used by the Issuer or any of its Subsidiaries) or interfere with
the ordinary conduct of the business of the Issuer or any of its Subsidiaries;
(f) Liens arising by operation of law in connection with judgments, only to the
extent, for an amount and for a period not resulting in an Event of Default
with respect thereto; (g) pledges or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security legislation; (h) Liens securing the Notes; (i)
Liens securing Indebtedness of a Person existing at the time such Person
becomes a Subsidiary of the Issuer or is merged with or into the Issuer or a
Subsidiary of the Issuer, or Liens securing Indebtedness incurred in connection
with an Acquisition, provided that such Liens were in existence prior to the
date of such acquisition, merger or consolidation, were not incurred in
anticipation thereof, and do not extend to any other assets; (j) Liens arising
from Purchase Money Indebtedness permitted to be incurred under paragraph (c)
of Section 4.10, provided such Liens relate solely to the property which is
subject to such Purchase Money Indebtedness; (k) leases or subleases granted to
other Persons in the ordinary course of business not materially interfering
with the conduct of the business of the Issuer or any of its Subsidiaries or
materially detracting from the value of the relative assets of the Issuer or
any Subsidiary; (l) Liens arising from precautionary Uniform
17
25
Commercial Code financing statement filings regarding operating leases entered
into by the Issuer or any of its Subsidiaries in the ordinary course of
business; (m) Liens securing Refinancing Indebtedness incurred to refinance any
Indebtedness that was previously so secured in a manner no more adverse to the
Holders of the Notes than the terms of the Liens securing such refinanced
Indebtedness, provided that the Indebtedness secured is not increased and the
Liens are not extended to any additional assets or property that would not have
been security for the Indebtedness refinanced; (n) Liens securing Senior Debt,
including Indebtedness incurred under the New Credit Facility in accordance
with the terms of this Indenture; (o) Liens on assets of a Receivables
Subsidiary incurred in connection with a Qualified Receivables Transaction; (p)
Liens securing Indebtedness of any Foreign Subsidiary incurred in accordance
with the provisions of Section 4.10, provided such Liens relate solely to the
property of one or more Foreign Subsidiaries; (q) Liens of landlords or of
mortgages of landlords arising by operation of law, provided that the rental
payments secured thereby are not yet due and payable; (r) Liens incurred in the
ordinary course of business of the Issuer or any Subsidiary of the Issuer with
respect to obligations that do not exceed $5,000,000 at any one time
outstanding and that (i) are not incurred in connection with the borrowing of
money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (ii) do not in the aggregate materially
detract from the value of the property or materially impair the use thereof;
(s) Liens securing reimbursement obligations with respect to letters of credit
which encumber only documents and other property relating to such letters of
credit and the products and proceeds thereof; (t) Liens arising out of
consignment or similar arrangements for the sale of goods; and (u) Liens
securing Interest Swap and Hedging Obligations permitted to be incurred by this
Indenture.
"Permitted Payments to Parent" means, without duplication, (a)
payments to Parent in an aggregate amount not to exceed $1,000,000 in any
fiscal year in an amount necessary and sufficient to permit Parent to pay
reasonable and necessary operating expenses and other general corporate
expenses to the extent such expenses relate to or are fairly allocable to the
Issuer and its Subsidiaries (including any reasonable professional fees and
expenses, but excluding all expenses payable to or to be paid to or on behalf
of an Excluded Person except in a transaction constituting an Exempted
Affiliate Transaction); and (b) payments to Parent to enable Parent to pay
foreign, Federal, state or local tax liabilities ("Tax Payments"), not to
exceed the amount of any tax liabilities that would be otherwise payable by the
Issuer and its Subsidiaries to the appropriate taxing authorities if the Issuer
and its Subsidiaries were to file separate tax returns to the extent that
Parent has an obligation to pay such tax liabilities relating to the
operations, assets or capital of the Issuer or its Subsidiaries, provided,
however, that (i) notwithstanding the foregoing, in the case of determining the
amount of a Tax Payment that is permitted to be paid by the Issuer and any of
its United States Subsidiaries in respect of their Federal income tax
liability, such payment shall be determined on the basis of assuming that the
Issuer is the parent company of an affiliated group (the "Issuer Affiliated
Group") filing a Federal
18
26
income tax return and that Parent and each such United States Subsidiary is a
member of the Issuer Affiliated Group and (ii) any Tax Payments shall either be
used by Parent to pay such tax liabilities within 90 days of Parent's receipt
of such payment or refunded to the payee.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision business).
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Public Equity Offering" means an underwritten offering of common
stock of the Issuer or Parent for cash pursuant to an effective registration
statement under the Securities Act, provided, at the time or upon consummation
of such offering, such common stock of the Issuer or Parent is listed on a
national securities exchange or quoted on the national market system of the
Nasdaq Stock Market.
"Purchase Money Indebtedness" of any Person means any Indebtedness of
such Person to any seller or other Person incurred to finance solely the
acquisition (including in the case of a Capitalized Lease Obligation, the
lease) of any real or personal tangible property which is incurred within 180
days of such acquisition and is secured only by the assets so financed.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Qualified Capital Stock" means any Equity Interests of the Issuer or
such other specified Person that is not Disqualified Capital Stock.
"Qualified Exchange" means any defeasance, redemption, retirement,
repurchase or other acquisition of Equity Interests or Indebtedness of the
Issuer issued on or after the Issue Date with the Net Cash Proceeds received by
the Issuer from the substantially concurrent sale of Qualified Capital Stock of
the Issuer or any exchange of Qualified Capital Stock of the Issuer for any
Equity Interests or Indebtedness of the Issuer issued on or after the Issue
Date.
"Qualified Receivables Transaction" means any transaction or series of
transactions that may be entered into by the Issuer, any Guarantor or any
Receivables Subsidiary pursuant to which the Issuer, any Guarantor or any
Receivables Subsidiary may sell, convey or otherwise transfer to, or grant a
security interest in for the benefit of, (a)
19
27
a Receivables Subsidiary (in the case of a transfer or encumbrancing by the
Issuer or any Guarantor) and (b) any other Person (solely in the case of a
transfer or encumbrancing by a Receivables Subsidiary), solely accounts
receivable (whether now existing or arising in the future) of the Issuer or any
Guarantor which arose in the ordinary course of business of the Issuer or any
Guarantor, and any assets related thereto, including, without limitation, all
collateral securing such accounts receivable, all contracts and all guarantees
or other obligations in respect of such accounts receivable, proceeds of such
accounts receivable and other assets which are customarily transferred or in
respect of which security interests are customarily granted in connection with
asset securitization transactions involving accounts receivable.
"Receivables Subsidiary" means a Wholly Owned Subsidiary of the Issuer
which engages in no activities other than in connection with the financing of
accounts receivable and which is designated by the Board of Directors of the
Issuer (as provided below) as a Receivables Subsidiary (a) no portion of any
Indebtedness or any other obligations (contingent or otherwise) of which,
directly or indirectly, contingently or otherwise, (i) is guaranteed by the
Issuer or Parent or any other Subsidiary of the Issuer or Parent (excluding
Standard Securitization Undertakings), (ii) is recourse to or obligates the
Issuer or Parent or any other Subsidiary of the Issuer or Parent in any way
other than pursuant to Standard Securitization Undertakings or (iii) subjects
any property or asset of the Issuer or Parent or any other Subsidiary of the
Issuer or Parent to the satisfaction thereof, other than Standard
Securitization Undertakings, (b) with which neither the Issuer or Parent nor
any other Subsidiary of the Issuer or Parent has any material contract,
agreement, arrangement or understanding other than those customarily entered
into in connection with Qualified Receivables Transactions, and (c) with which
neither the Issuer or Parent nor any other Subsidiaries of the Issuer or Parent
has any obligation, directly or indirectly, contingently or otherwise, to
maintain or preserve such Subsidiary's financial condition or cause such
Subsidiary to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Issuer shall be evidenced to the
Trustee by the filing with the Trustee a certified copy of the resolution of
the Board of Directors of the Issuer giving effect to such designation and an
Officer's Certificate certifying that such designation complied with the
foregoing conditions.
"Reference Period" with regard to any Person means the four full
fiscal quarters (or such lesser period during which such Person has been in
existence) ended immediately preceding any date upon which any determination is
to be made pursuant to the terms of the Notes or this Indenture.
"Refinanced Parent Convertible Note" means Refinancing Indebtedness
incurred to refinance the Parent Convertible Notes.
20
28
"Refinancing Indebtedness" means Indebtedness or Disqualified Capital
Stock (a) issued in exchange for, or the proceeds from the issuance and sale of
which are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or (b)
constituting an amendment, modification or supplement to, or a deferral or
renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness or Disqualified Capital Stock in a principal amount or, in the
case of Disqualified Capital Stock, liquidation preference, not to exceed
(after deduction of reasonable and customary fees and expenses incurred in
connection with the Refinancing) the lesser of (i) the principal amount or, in
the case of Disqualified Capital Stock, liquidation preference, of the
Indebtedness or Disqualified Capital Stock so Refinanced and (ii) if such
Indebtedness being Refinanced was issued with an original issue discount, the
accreted value thereof (as determined in accordance with GAAP) at the time of
such Refinancing; provided, that (A) such Refinancing Indebtedness shall only
be issued to Refinance outstanding Indebtedness or Disqualified Capital Stock
of such Person issuing such Refinancing Indebtedness, (B) such Refinancing
Indebtedness shall (x) not have an Average Life shorter than the Indebtedness
or Disqualified Capital Stock to be so refinanced at the time of such
Refinancing and (y) in all respects, be no less subordinated, if applicable, to
the rights of Holders of the Notes than was the Indebtedness or Disqualified
Capital Stock to be refinanced, and (C) such Refinancing Indebtedness shall
have a final stated maturity or redemption date, as applicable, no earlier than
the final stated maturity or redemption date, as applicable, of the
Indebtedness or Disqualified Capital Stock to be so refinanced.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of May 29, 1998, by and among, the Issuer, the Guarantors
and the Initial Purchasers, as such agreement may be amended, modified or
supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities Act
and as it may be amended, and any successor rule governing substantially the
same matter.
"Regulation S Global Note" means a global Note in the form of Exhibit
A hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of and registered in the name of the Depositary or
its nominee, issued in a denomination equal to the outstanding principal amount
of the Note initially sold in reliance on Rule 903 of Regulation S.
"Related Business" means the business conducted (or proposed to be
conducted) by the Issuer and its Subsidiaries as of the Issue Date and any and
all businesses that in the good faith judgment of the Board of Directors of the
Issuer are materially related businesses. Without limiting the generality of
the foregoing, Related Business shall include sales (including by mail) of
office products, computer systems and equipment and office furniture, computer
systems consulting and forms management.
21
29
"Related Person" means any Person who controls, is controlled by or is
under common control with an Excluded Person; provided that for purposes of
this definition "control" means the beneficial ownership of more than 50% of
the total voting power of a Person normally entitled to vote in the election of
directors, managers or trustees, as applicable, of a Person.
"Representative" means the indenture trustee or other trustee, agent
or representative for any Senior Debt.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means, in one or a series of related
transactions, any Investment, other than investments in Cash Equivalents and
other Permitted Investments.
"Restricted Payment" means, with respect to any Person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such Person or the Parent or Subsidiary of such Person, (b)
any payment on account of the purchase, redemption or other acquisition or
retirement for value of Equity Interests of such Person or any Subsidiary or
the Parent of such Person, (c) other than with the proceeds from the
substantially concurrent sale of, or in exchange for, Refinancing Indebtedness,
any purchase, redemption, or other acquisition or retirement for value of, any
payment in respect of any amendment of the terms of or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such Person or the Parent
or Subsidiary of such Person prior to the scheduled maturity, any scheduled
repayment of principal, or scheduled sinking fund payment, as the case may be,
of such Indebtedness and (d) any Restricted Investment by such Person;
provided, however, that the term "Restricted Payment" does not include (i) any
dividend, distribution or other payment on or with respect to Equity Interests
of an issuer to the extent payable solely in shares of Qualified Capital Stock
of such issuer; (ii) any dividend, distribution or other payment to the Issuer
or to any of its Subsidiary Guarantors, by the Issuer or any of its
Subsidiaries, or to a Foreign Subsidiary which is a direct or indirect parent
of another Foreign Subsidiary, by such Foreign Subsidiary; (iii) loans or
advances to any Subsidiary Guarantor the proceeds of which are used by such
Subsidiary Guarantor in a Related Business activity of such Subsidiary
Guarantor; or (iv) Permitted Investments.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
22
30
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, and its successors.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as
it may be amended, and any successor rule governing substantially the same
matters.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Debt" of the Issuer or any Guarantor means Indebtedness
(including, without limitation, all monetary obligations in respect of the New
Credit Facility, and interest, whether or not allowable, accruing on
Indebtedness incurred pursuant to the New Credit Facility at the relevant
contractual rate provided in the New Credit Facility both before and after the
filing of a petition initiating any proceeding under any bankruptcy, insolvency
or similar law) of the Issuer or such Guarantor arising under the New Credit
Facility or that, by the terms of the instrument creating or evidencing such
Indebtedness, is expressly designated Senior Debt and made senior in right of
payment to the Notes or the applicable Guarantee; provided, that in no event
shall Senior Debt include (a) Indebtedness to any Subsidiary of the Issuer or
any officer, director or employee of the Issuer or any Subsidiary of the
Issuer, (b) Indebtedness to the extent the same is incurred in violation of
Section 4.10, (c) Indebtedness to trade creditors, (d) Disqualified Capital
Stock, (e) Capitalized Lease Obligations, and (f) any liability for taxes owed
or owing by the Issuer or such Guarantor or (g) the Parent Convertible Notes or
the 9 1/8% Senior Subordinated Notes.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"Standard Securitization Undertakings" mean representations,
warranties, covenants and indemnities entered into by the Issuer or any
Subsidiary Guarantor which are reasonably customary in an accounts receivables
transaction.
"Stated Maturity," when used with respect to any Note, means June 1,
2008.
"Subordinated Indebtedness" means Indebtedness of the Issuer or a
Subsidiary Guarantor that is subordinated in right of payment by its terms or
the terms of any document or instrument relating thereto to the Notes or such
Subsidiary Guarantee, as applicable, in any respect or has a final stated
maturity after the Stated Maturity.
"Subsidiary," with respect to any Person, means (i) a corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or
by one or more Subsidiaries of such Person, or (ii)
23
31
any other Person (other than a corporation) in which such Person, one or more
Subsidiaries of such Person, or such Person and one or more Subsidiaries of
such Person, directly or indirectly, at the date of determination thereof has a
majority ownership interest. Notwithstanding the foregoing, an Unrestricted
Subsidiary shall not be a Subsidiary of the Issuer or of any Subsidiary of the
Issuer. Unless the context requires otherwise, Subsidiary means each direct
and indirect Subsidiary of the Issuer.
"Subsidiary Guarantee" means the Guarantee of each Subsidiary
Guarantor.
"Subsidiary Guarantor" means all present and future Subsidiaries of
the Issuer (other than Receivables Subsidiaries, Finance Subsidiaries, Excluded
Subsidiaries and Foreign Subsidiaries) which jointly and severally guarantee
irrevocably and unconditionally all principal, premium, if any, and interest
(and Liquidated Damages, if any) on the Notes on a senior subordinated basis,
as discussed in Section 4.15 of this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA, except as otherwise provided in Section 9.03.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Definitive Note" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"Unrestricted Global Note" means a global Note in the form of Exhibit
A attached hereto that bears the Global Note Legend attached thereto, and that
is deposited with or on behalf of and registered in the name of the Depositary,
representing a series of Notes that do not bear the Private Placement Legend.
"Unrestricted Subsidiary" means any Subsidiary that is designated by
the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no
Indebtedness other than Non-Recourse Indebtedness; (b) is not party to any
agreement, contract, arrangement or understanding with the Issuer or any
Subsidiary of the Issuer unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Issuer or such
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Company; (c) is a Person with respect to which neither
the Issuer nor any of its Subsidiaries has any direct or indirect obligation
(x) to subscribe for additional Equity Interests or (y) to maintain or preserve
such Person's financial condition or to cause
24
32
such Person to achieve any specified levels of operating results; and (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Issuer or any of its Subsidiaries. Any such
designation by the Board of Directors will be evidenced to the Trustee by
filing with the Trustee a certified copy of the Board Resolution giving effect
to such designation and an Officer's Certificate certifying that such
designation complied with the foregoing conditions and was permitted by Section
4.09 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet
the foregoing requirements as an Unrestricted Subsidiary, it will thereafter
cease to be an Unrestricted Subsidiary for purposes of the Indenture and any
Indebtedness of such Subsidiary will be deemed to be incurred by a Subsidiary
of the Issuer as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.10 hereof, the Issuer will be in
default of such covenant). The Board of Directors of the Issuer may designate
any Unrestricted Subsidiary to be a Subsidiary, provided, that (i) no Default
or Event of Default is existing or will occur as a consequence thereof and (ii)
immediately after giving effect to such designation, on a pro forma basis, the
Issuer could incur at least $1.00 of Indebtedness pursuant to the Debt
Incurrence Ratio in paragraph (a) of Section 4.10. Each such designation shall
be evidenced by filing with the Trustee a certified copy of the resolution
giving effect to such designation and an Officer's Certificate certifying that
such designation complied with the foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"U.S. Legal Tender Equivalents" means securities issued or directly
and fully guaranteed or insured by the United States of America or any agency
or instrumentality thereof with a maturity of 90 days or less (provided that
the full faith and credit of the United States of America is pledged in support
thereof).
"Wholly Owned Foreign Subsidiary" of any Person means a Foreign
Subsidiary of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors' qualifying shares) shall at
the time be owned by such Person or by one or more Wholly Owned Foreign
Subsidiaries of such Person or by such Person and one or more Subsidiary
Guarantors of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person and one
or more Wholly Owned Subsidiary Guarantors of such Person.
25
33
SECTION 1.02 OTHER DEFINITIONS
Defined in
Term Section
---- ----------
"Acceleration Notice" 6.02
"Affiliate Transaction" 4.14
"Asset Sale" 4.08
"Asset Sale Offer" 4.08
"Asset Sale Offer Amount" 4.08
"Asset Sale Offer Price" 4.08
"Asset Sale Offer Period" 4.08
"Authentication Order" 2.02
"Benefitted Party" 11.01
"Broker-Dealer" 2.06
"Change of Control Offer" 4.07
"Change of Control Offer Period" 4.07
"Change of Control Purchase Date" 4.07
"Change of Control Purchase Price" 4.07
"Core Operating Software" 4.08
"Covenant Defeasance" 8.03
"Debt Incurrence Ratio" 4.10
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.08
"Existing Restricted Investments" 4.09
"Incurrence Date" 4.10
"Legal Defeasance" 8.02
"Offer Amount" 4.08
"Offer Period" 4.08
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Payment Default" 10.03
"Payment Notice" 10.03
"Purchase Date" 4.08
"Registrar" 2.03
"Restricted Payments" 4.09
"Transfer" 4.08
26
34
SECTION 1.03 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:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee;
"obligor" on the Notes means the Issuer, the Guarantors and
any successor obligor upon the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
27
35
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2
THE NOTES
SECTION 2.01 FORM AND DATING
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes
shall be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Issuer, the Guarantors and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound
thereby. However, to the extent any provision of any Note conflicts with the
express provision of this Indenture, the provisions of the Indenture shall
control.
Global Notes shall be substantially in the form of Exhibit A
attached hereto (including the text referred to in footnotes 1 and 2 thereto).
Notes issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without including the text referred to in footnotes 1 and
2 thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian, at the direction of the
Trustee, in accordance with instructions given by the Holder thereof as
required by Section 2.06 hereof.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the "General
Terms and Conditions of Cedel Bank" and "Customer Handbook" of Cedel Bank shall
be applicable to transfers of beneficial interests in Regulation S Global Notes
that are held by Participants through Euroclear or Cedel Bank.
28
36
SECTION 2.02 EXECUTION AND AUTHENTICATION
Two Officers shall sign the Notes for the Issuer by manual or
facsimile signature. The Issuer's seal shall be reproduced on the Notes and
may be in facsimile form.
If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Issuer signed
by two Officers (an "Authentication Order"), (i) authenticate Notes for
issuance on the Issue Date up to the aggregate principal amount stated in such
Authentication Order, which shall not exceed $350,000,000, and (ii)
authenticate Additional Notes for issuance on any other Business Day up to the
aggregate principal amount stated in such Authentication Order; provided that
such amount may not exceed $200,000,000 in the aggregate and the issue of
Additional Notes pursuant to this clause (ii) is subject to compliance with
Section 4.10. The aggregate principal amount of Notes and Additional Notes
will be limited to the sum of $550,000,000.
The Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate the Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Issuer or
an Affiliate of the Issuer.
SECTION 2.03 REGISTRAR AND PAYING AGENT
The Issuer shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Notes and of their transfer and
exchange. The Issuer may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Issuer may
change any Paying Agent or Registrar without notice to any Holder. The Issuer
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Issuer fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Issuer
or any of its Subsidiaries may act as Paying Agent or Registrar.
29
37
The Issuer initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Notes.
The Issuer initially appoints the Trustee to act as the
Registrar and Paying Agent and to act as Note Custodian with respect to the
Global Notes.
SECTION 2.04 PAYING AGENT TO HOLD MONEY IN TRUST
The Issuer shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and will notify the Trustee of any default by the Issuer in making any
such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Issuer at any
time may require a Paying Agent to pay all money held by it to the Trustee.
Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or
a Subsidiary) shall have no further liability for the money. If the Issuer or
a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate
trust fund for the benefit of the Holders all money held by it as Paying Agent.
Upon any bankruptcy or reorganization proceedings relating to the Issuer, the
Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05 HOLDER 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 all Holders and shall otherwise comply with TIA Section 312(a).
If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at
least seven Business Days before each interest payment date and at such other
times as the Trustee may request in writing, a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of the
Holders of Notes and the Issuer shall otherwise comply with TIA Section
312(a).
SECTION 2.06 TRANSFER AND EXCHANGE
(a) Transfer and Exchange and Global Notes. A Global
Note may not be transferred as a whole except by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Notes will be exchanged by the Issuer for Definitive Notes if (i) the Issuer
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Issuer within 120 days after the date of
such notice from the Depositary,
30
38
(ii) the Issuer in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee or (iii) upon request of the
Trustee or any Holders if there shall have occurred and be continuing a Default
or Event of Default with respect to the Notes. Upon the occurrence of any of
the preceding events in (i), (ii) or (iii) above, Definitive Notes shall be
issued in such names as the Depositary shall instruct the Trustee. Global
Notes also may be exchanged or replaced, in whole or in part, as provided in
Sections 2.07 and 2.10 hereof. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Section 2.06 or Section 2.07 or 2.10 hereof, shall be authenticated and
delivered in the form of, and shall be a Global Note. A Global Note may not be
exchanged for another Note other than as provided in this Section 2.06(a),
however, beneficial interests in a Global Note may be transferred and exchanged
as provided in Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the
Global Notes. The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global Notes shall be subject to restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act. Transfers of beneficial interests in the Global Notes also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable.
(i) Transfer of Beneficial Interests in the Same
Global Note. Beneficial interests in any Restricted Global Note may be
transferred to Persons who take delivery thereof in form of a beneficial
interest in the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however, that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Note may not be made to a U.S. Person or
for the account or benefit of a U.S. Person (other than a Initial Purchaser).
Beneficial interests in any Unrestricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be required
to be delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of
Beneficial Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section 2.06(b)(i)
above, the transferor of such beneficial interest must deliver to the Registrar
either (A) (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2)
31
39
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) a written order from a Participant or an Indirect Participant given
to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions given
by the Depositary to the Registrar containing information regarding the Person
in who name such Definitive Note shall be registered to effect the transfer or
exchange referred to in (B)(1) above. Upon consummation of an Exchange Offer
by the Issuer in accordance with Section 2.06(f) hereof, the requirements of
this Section 2.06(b)(ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted Global
Notes. Upon satisfaction of all of the requirements for transfer or exchange
of beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another
Restricted Global Note. A beneficial interest in any Restricted Global Note
may be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer complies
with the requirements of Section 2.06(b)(ii) above and the Registrar receives
the following:
(A) if the transferee will take delivery
in the form of a beneficial interest in the 144A Global Notes,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (1)
thereof; and
(B) if the transferee will take delivery
in the form of a beneficial interest in the Regulation S
Global Note, then the transferor must deliver a certificate in
the form of Exhibit B hereto, including the certifications in
item (2) thereof.
(iv) Transfer and Exchange of Beneficial Interests
in a Restricted Global Note for Beneficial Interests in the Unrestricted Global
Note. A beneficial interest in any Restricted Global Note may be exchanged by
any holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who take delivery thereof in the form of a beneficial
interest in an Unrestricted Global Note if the exchange or transfer complies
with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement
32
40
and the holder of the beneficial interest to be transferred,
in the case of an exchange, or the transferee, in the case of
a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating
in the distribution of the Exchange Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Issuer.
(B) such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Statement in accordance with the Registration
Rights Agreement; or
(C) such transfer is effected by a
Broker-Dealer, as defined in the Registration Rights
Agreement, pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the
following: (1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global
note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (1)(a) thereof;
or (2) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note,
a certificate from such holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof, and,
in each such case set forth in this subparagraph (D), an
Opinion of Counsel in form reasonably acceptable to the
Registrar and the Issuer to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B)
or (D) above at a time when an Unrestricted Global Note has not yet been
issued, the Issuer shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above. Beneficial interests in an Unrestricted Global
Note cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Note.
33
41
(c) Transfer or Exchange of Beneficial Interests for
Definitive Notes.
(i) Beneficial Interests in Restricted Global
Notes to Restricted Definitive Notes. If any holder of a beneficial interest
in a Restricted Global Note proposed to exchange such beneficial interest for a
Restricted Definitive Note or to transfer such interest to a Person who takes
delivery thereof in the form of a Restricted Definitive Note, then, upon
receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such
beneficial interest for a Restricted Definitive Note, a
certificate from such holder in the form of Exhibit C hereto,
including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being
transferred to a QIB in accordance with Rule 144A under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (1)
thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904 under the Securities Act,
a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (2) thereof;
(D) if such beneficial interest is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (3)(a) thereof;
(E) if such beneficial interest is being
transferred to an Institutional Accredited Investor in
reliance on an exemption from the registration requirements of
the Securities Act other than those listed in subparagraphs
(B) through (D) above, a certificate to the effect set forth
in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (3)
thereof, if applicable;
(F) if such beneficial interest is being
transferred to the Issuer or any of its Subsidiaries, a
certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(b) thereof; or
34
42
(G) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certificate to the effect set
forth to the effect set in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Issuer shall execute and, upon receipt of an Authentication
Order pursuant to Section 2.02, the Trustee shall authenticate and deliver to
the Person designated in the instructions a Restricted Definitive Note in the
appropriate principal amount. Any Restricted Definitive Note issued in
exchange for the beneficial interest in a Restricted Global Note pursuant to
this Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and the Participant or Indirect Participant. The Trustee shall deliver such
Restricted Definitive Notes to the Persons in whose names such Notes as so
registered. Any Restricted Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i) shall
bear the Private Placement Legend and shall be subject to all restrictions on
transfer contained therein.
(ii) Beneficial Interests in Restricted Global
Notes to Unrestricted Definitive Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an
Unrestricted Definitive Note or may transfer such beneficial interest to Person
who takes delivery thereof in the form of an Unrestricted Definitive Note only
if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the holder of such
beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution
of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
(C) such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
35
43
(D) the Registrar receives the
following: (1) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Private
Placement Legend, a certificate from such holder in the form
of Exhibit C hereto, including the certifications in item
(1)(b) thereof; or (2) if the holder of such beneficial
interest in a Restricted Global Note proposes to transfer such
beneficial interest in a Restricted Global Note proposes to
transfer such beneficial interest to a Person who shall take
delivery thereof in the form of a Definitive Note that does
not bear the Private Placement Legend, a certificate from such
holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Issuer to the
effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer
contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the
Securities Act.
(iii) Beneficial Interests in Unrestricted Global
Notes to Unrestricted Definitive Notes. If any holder of a beneficial interest
in a Unrestricted Global Note proposes to exchange such beneficial interest for
an Unrestricted Definitive Note or to transfer such beneficial interest to a
Person who take delivery thereof in the form of a Unrestricted Definitive Note,
then, upon satisfaction of the conditions set forth in Section 2.06(b)(ii)
hereof, the Trustee shall cause the aggregate principal amount of the
applicable Unrestricted Global Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the Issuer shall execute and, upon receipt of the
Authentication Order pursuant to Section 2.02, the Trustee shall authenticate
and deliver to the Person designated in the instructions and Unrestricted
Definitive Note in the appropriate principal amount. Any Unrestricted
Definitive Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depositary
and Participant or Indirect Participant. The Trustee shall deliver such
Unrestricted Definitive Notes to the Persons in who names such Notes are no
registered. Any Unrestricted Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for
Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial
Interest in Restricted Global Notes. If any Holder of a Restricted Definitive
Note proposes to exchange such Note for a beneficial interest in a Restricted
Global Note or to transfer such Restricted Definitive Notes to a Person who
takes delivery thereof in the form of a
36
44
beneficial interest in a Restricted Global Note, then, upon receipt by the
Registrar of the following documentation:
(A) if the Holder of such Restricted
Definitive Note proposes to exchange such Note for a
beneficial interest in a Restricted Global Note, a certificate
from such Holder in the form of Exhibit C thereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note
is being transferred to a QIB in accordance with Rule 144A
under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in
item (1) thereof; or
(C) if such Restricted Definitive Note
is being transferred to a Non-U.S. Person in an offshore
transaction in accordance with Rule 903 or Rule 904 under the
Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2)
thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause to
be increased the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Note, in the case of clause (B) above,
the 144A Global Note, and in the case of clause (C) above, the Regulation S
Global Note.
(ii) Restricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of a Restricted Definitive
Note may exchange such Note for a beneficial interest in a Unrestricted Global
Note or transfer such Restricted Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Issuer;
(B) such transfer is effected pursuant
to the Shelf Registration Statement in accordance with the
Registration Rights Agreement;
37
45
(C) such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the
following: (1) if the Holder of such Restricted Definitive
notes proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or (2) if the Holder of
such Restricted Definitive Notes proposes to transfer such
Notes to a Person who shall take delivery thereof in the form
of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and, in each
such case set forth in this subparagraph (D), an Opinion of
Counsel in form reasonably acceptable to the Registrar and the
Issuer to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance
with the Securities Act. Upon satisfaction of the conditions
of any of the subparagraphs in this Section 2.06(d)(ii), the
Trustee shall cancel the Restricted Definitive Notes so
transferred or exchanged and increase or cause to be increased
the aggregate principal amount of the Unrestricted Global
Note.
(iii) Unrestricted Definitive Notes to Beneficial
Interests in Unrestricted Global Notes. A Holder of an Unrestricted Definitive
Note may exchange such Note for a beneficial interest in an Unrestricted Global
Note or transfer such Definitive Notes to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the Trustee
shall cancel the applicable Unrestricted Definitive Note and increase or cause
to be increased the aggregate principal amount of one of the Unrestricted
Global Notes. If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B) or (ii)(D)
above or this subparagraph (iii) above at a time when an Unrestricted Global
Note has not yet been issued, the Issuer shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for
Definitive Notes. Upon request by a Holder of Definitive Notes and such
Holder's compliance with the provisions of this Section 2.06(e), the Registrar
shall register the transfer or exchange of
38
46
Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Notes duly endorsed or accompanied by a written instruction of transfer in form
satisfactory to the Registrar duly executed by such Holder or by its attorney,
duly authorized in writing. In addition, the requesting Holder shall provide
any additional certifications, documents and information, as applicable,
required pursuant to the following provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted
Definitive Notes. Any Restricted Definitive Notes may be transferred to and
registered in the name of Persons who take delivery thereof in the form of a
Restricted Definitive Note if the Registrar receives the following:
(A) if the transfer will be made
pursuant to Rule 144A under the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B
hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made
pursuant to Rule 903 or Rule 904, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications in item (2) thereof; and
(C) if the transfer will be made
pursuant to any other exemption from the registration
requirements of the Securities Act, then the transferor must
deliver a certificate in the form of Exhibit B hereto,
including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted
Definitive Notes. Any Restricted Definitive Note may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or transferred to a Person
or Persons who take delivery thereof in the form of an Unrestricted Definitive
Note if:
(A) such exchange or transfer is
effected pursuant to the Exchange Offer in accordance with the
Registration Rights Agreement and the Holder, in the case of
an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an
affiliate (as defined in Rule 144) of the Issuer;
(B) any such transfer is effected
pursuant to the Shelf Registration Statement in accordance
with the Registration Rights Agreement;
39
47
(C) any such transfer is effected by a
Broker-Dealer pursuant to the Exchange Offer Registration
Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the
following: (1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (1)(d)
thereof; or (2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of an Unrestricted
Definitive Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (4)
thereof; and, in each such case set forth in this subparagraph
(D), an Opinion of Counsel in form reasonably acceptable to
the Registrar and the Issuer to the effect that such exchange
or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
(iii) Unrestricted Definitive Notes to Unrestricted
Definitive Notes. A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange
Offer in accordance with the Registration Rights Agreement, the Issuer shall
issue and, upon receipt of an Authentication Order in accordance with Section
2.02, the Trustee shall authenticate (i) one or more Unrestricted Global Notes
in an aggregate principal amount equal to the sum of (A) the principal amount
of the beneficial interests in the Restricted Global Notes tendered for
acceptance by Persons that certify in the applicable Letters of Transmittal
that (x) they are not broker-dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as defined
in Rule 144) of the Issuer, and accepted for exchange in the Exchange Offer and
(B) the principal amount of Definitive Notes exchanged or transferred for
beneficial interests in Unrestricted Global Notes in connection with the
Exchange Offer pursuant to Section 2.06(d)(ii) and (ii) Definitive Notes in an
aggregate principal amount equal to the principal amount of the Restricted
Definitive Notes accepted for exchange in the Exchange Offer (other than
Definitive Notes described in clause (i)(B) immediately above). Concurrently
with the issuance of such Notes, the Trustee shall cause the aggregate
principal amount of the
40
48
applicable Restricted Global Notes to be reduced accordingly, and the Issuer
shall execute and, upon receipt of an Authentication Order pursuant to Section
2.02, the Trustee shall authenticate and deliver to the Persons designated by
the Holders of Definitive Notes so accepted Definitive Notes in the appropriate
principal amount.
(g) Legends. The following legends shall appear on the
face of all Global Notes and Definitive Notes issued under this Indenture
unless specifically stated otherwise in the applicable provisions of this
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph
(B) below, each Global Note and each Definitive Note (and all
Notes issued in exchange therefor or substitution thereof)
shall bear the legend in substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR
THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A
BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (I) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), OR (II) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT;
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (I) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF
41
49
RULE 144A, (III) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE SECURITIES ACT, (IV) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (V) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR (VI)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS
A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any
Global Note or Definitive Note issued pursuant to subparagraph
(b)(iv), (c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii),
(e)(iii) or (f) to this Section 2.06 (and all Notes issued in
exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend. Each Global Note shall
bear a legend in substantially the following form:
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL
42
50
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06
OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY.
(h) Cancellation and/or Adjustment of Global Notes. At
such time as all beneficial interests in a particular Global Note have been
exchanged for Definitive Notes or a particular Global Note has been redeemed,
repurchased or cancelled in whole and not in part, each such Global Note shall
be returned to or retained and cancelled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depositary at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and
Exchanges.
(i) To permit registrations of transfers and
exchanges, the Issuer shall execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder
for any registration of transfer or exchange, but the Issuer 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 exchange or transfer pursuant to
Sections 4.07 and 4.08 hereto).
(iii) The Registrar shall not be required to
register the transfer of or exchange any Note selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in part.
43
51
(iv) All Definitive Notes and Global Notes issued
upon any registration of transfer or exchange of Definitive Notes or Global
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Definitive Notes
or Global Notes surrendered upon such registration of transfer or exchange.
(v) The Issuer shall not be required: (A) to
issue, to register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the day of mailing of a
notice of redemption of Notes under Section 3.02 hereof and ending at the close
of business on the day of such mailing; or (B) to register the transfer of or
to exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or (C) to register the
transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration
of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and
treat the Person in whose name any Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Notes, and neither the Trustee, any Agent nor the Issuer shall be affected
by notice to the contrary.
(vii) The Trustee shall authenticate Definitive
Notes and Global Notes in accordance with the provisions of Section 2.02
hereof.
Each Holder of a Note agrees to indemnify the Issuer and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or among Participants
or beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
44
52
SECTION 2.07 REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee, or the
Issuer and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, the Issuer shall issue and the Trustee,
upon the written order of the Issuer signed by two Officers of the Issuer,
shall authenticate a replacement Note if the Trustee's requirements are met.
An indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Issuer to protect the Issuer, the Trustee, any
Agent and any authenticating agent from any loss that any of them may suffer if
a Note is replaced. The Issuer may charge for its expenses in replacing a
Note.
Every replacement Note is an additional obligation of the
Issuer and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
SECTION 2.08 OUTSTANDING NOTES
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Note
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Note does not cease to be outstanding because the Issuer or an
Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Issuer, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date (which as used herein
does not include an Asset Sale Purchase Date or Change of Control Purchase
Date) or Final Stated Maturity Date, money sufficient to pay Notes payable on
that date, then on and after that date such Notes shall be deemed to be no
longer outstanding and shall cease to accrue interest.
SECTION 2.09 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 Issuer, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any
45
53
such direction, waiver or consent, only Notes that a responsible officer of the
Trustee actually knows are so owned shall be so disregarded.
SECTION 2.10 TEMPORARY NOTES
Until Definitive Notes are ready for delivery, the Issuer may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Issuer signed by two Officers of the Issuer. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that the
Issuer considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Issuer shall
prepare and the Trustee shall authenticate Definitive Notes in exchange for
temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
SECTION 2.11 CANCELLATION
The Issuer at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment.
The Trustee and no one else shall cancel all Notes surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall dispose
of cancelled Notes in accordance with its customary procedures (subject to the
record retention requirement of the Exchange Act). The Issuer may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
SECTION 2.12 DEFAULTED INTEREST
If the Issuer defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Issuer shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each Note
and the date of the proposed payment. The Issuer shall fix or cause to be
fixed each such special record date and payment date, provided that no such
special record date shall be less than 10 days prior to the related payment
date for such defaulted interest. At least 15 days before the special record
date, the Issuer (or, upon the written request of the Issuer, the Trustee in
the name and at the expense of the Issuer) shall mail or cause to be mailed to
Holders a notice that states the special record date, the related payment date
and the amount of such interest to be paid.
46
54
SECTION 2.13 CUSIP NUMBERS
The Issuer in issuing the Notes may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer will promptly notify the
Trustee of any change in the"CUSIP" numbers.
ARTICLE 3
REDEMPTION AND PREPAYMENT
SECTION 3.01 NOTICES TO TRUSTEE
If the Issuer elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officer's Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
SECTION 3.02 SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed at any time,
the Trustee shall select the Notes to be redeemed among the Holders of the
Notes 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 so
listed, on a pro rata basis, by lot or in accordance with any other method the
Trustee deems fair and appropriate. In the event of partial redemption by lot,
the particular Notes to be redeemed shall be selected, unless otherwise
provided herein, not less than 30 nor more than 60 days prior to the redemption
date by the Trustee from the outstanding Notes not previously called for
redemption.
The Trustee shall promptly notify the Issuer in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or integral multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not an integral
multiple of $1,000, shall be redeemed. Except as provided in the preceding
sentence, provisions of this Indenture that apply to Notes called for
redemption
47
55
also apply to portions of Notes called for redemption. On and after the date
of redemption, interest will cease to accrue on the Notes or portions thereof
called for redemption, unless the Issuer defaults in the payment thereof.
SECTION 3.03 NOTICE OF REDEMPTION
Subject to the provisions of Section 3.07 hereof, at least 30
days but not more than 60 days before a redemption date, the Issuer shall mail
or cause to be mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of
the principal amount of such Note equal to the unredeemed portion
thereof and that, on and after the redemption date upon surrender of
such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original
Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(f) that, unless the Issuer defaults in making such
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of this
Indenture pursuant to which the Notes called for redemption are being
redeemed; and
(h) that no representation is made as to the correctness
or accuracy of the CUSIP number, if any, listed in such notice or
printed on the Notes.
At the Issuer's request, the Trustee shall give the notice of
redemption in the Issuer's name and at its expense; provided, however, that the
Issuer shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officer's Certificate requesting that the Trustee give such
notice and setting forth the information
48
56
to be stated in such notice as provided in the preceding paragraph.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section
3.03 hereof, Notes called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE
One Business Day prior to the redemption date, the Issuer
shall deposit with the Trustee or with the Paying Agent immediately available
funds sufficient to pay the redemption price of and accrued interest on all
Notes to be redeemed on that date. The Trustee or the Paying Agent shall
promptly return to the Issuer any money deposited with the Trustee or the
Paying Agent by the Issuer in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Notes to be redeemed.
If the Issuer complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption unless the Issuer
defaults in such payments due on the redemption date. If a Note is redeemed on
or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender
for redemption because of the failure of the Issuer to comply with the
preceding paragraph, interest shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided
in the Notes and in Section 4.01 hereof.
SECTION 3.06 NOTES REDEEMED IN PART
Upon surrender of a Note that is redeemed in part, the Issuer
shall issue and, upon the Issuer's written request, the Trustee shall
authenticate for the Holder at the expense of the Issuer a new Note equal in
principal amount to the unredeemed portion of the Note surrendered. In the
case of a partial redemption, the Trustee shall select the Notes or portions
thereof for redemption on a pro rata basis, by lot or in such other manner it
deems appropriate and fair.
SECTION 3.07 OPTIONAL REDEMPTION
(a) Except as set forth in clause (b) of this Section 3.07,
the Issuer shall not have the right to redeem the Notes pursuant to this
Section 3.07 prior to June 1, 2003.
49
57
Thereafter, the Issuer shall have the option to redeem the Notes, in whole or
in part, upon not less than 30 nor more than 60 days notice to the Holders, at
the redemption prices (expressed as percentages of principal amount) set forth
below, if redeemed during the 12-month period commencing on June 1 of the years
indicated below in each case (subject to the right of Holders of record on a
Record Date to receive the corresponding interest due (and the corresponding
Liquidated Damages due, if any) on an Interest Payment Date corresponding to
such Record Date that is on or prior to such Redemption Date) together with
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date.
YEAR PERCENTAGE
---- ----------
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.813%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.208%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.604%
2006 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, at any time on or prior to June 1, 2001, the Issuer may redeem,
on one or more occasions, redeem up to an aggregate of 35% of the aggregate
principal amount of Notes issued under this Indenture at a redemption price
equal to 109.625% of the principal amount thereof (subject to the right of
Holders of record on a Record Date to receive interest due on an Interest
Payment Date that is on or prior to such Redemption Date) together with accrued
and unpaid interest and Liquidated Damages, if any, to the date of redemption,
with cash from the Net Cash Proceeds to the Issuer of one or more Public Equity
Offerings; provided that at least 65% of the aggregate principal amount of the
Notes issued under this Indenture remain outstanding immediately after the
occurrence of such redemption; provided, further, that such notice of
redemption shall be sent within 30 days after the date of the closing of any
such Public Equity Offering, and such redemption date shall occur within 60
days after such notice is sent.
(c) Any redemption pursuant to this Section 3.07 shall be
made pursuant to the provisions of Section 3.01 through 3.06 hereof.
SECTION 3.08 NO MANDATORY REDEMPTION
The Issuer shall not be required to make mandatory redemption
payments with respect to the Notes.
SECTION 3.09 SINKING FUNDS
The Notes will not have the benefit of any sinking fund.
50
58
ARTICLE 4
COVENANTS
SECTION 4.01 PAYMENT OF NOTES
The Issuer 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. Principal, premium, if any, and interest shall be
considered paid on the date due if the Paying Agent, if other than the Issuer
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date
money deposited by the Issuer in immediately available funds and designated for
and sufficient to pay all principal, premium, if any, and interest then due;
provided that interest which, under the Notes, may be paid with Additional
Notes shall be considered paid on the date due if the Paying Agent, if other
than the Issuer or a Subsidiary thereof, holds as of 10:00 A.M. Eastern Time on
the due date Additional Notes or a combination of Additional Notes and money
deposited by the Issuer in immediately available funds sufficient to pay all
interest then due. The Issuer shall pay all Liquidated Damages, if any, in the
same manner on the dates and in the amounts set forth in the Registration
Rights Agreement. The Issuer shall notify the Trustee of the amount of
Liquidated Damages, if any, within one day of any payment date. In the absence
of such notice, the Trustee is conclusively entitled to assume that no
Liquidated Damages are payable under the Registration Rights Agreement.
The Issuer shall pay interest (including post-petition
interest in any proceeding under any bankruptcy law) on overdue principal at
the rate equal to 1% per annum in excess of the then applicable interest rate
on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02 MAINTENANCE OF OFFICE OR AGENCY
The Issuer shall maintain in the Borough of Manhattan, the
City of New York, an office or agency (which may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served. The Issuer 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 Issuer 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
51
59
Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Issuer 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 Issuer hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Issuer in accordance with Section
2.03 hereof.
SECTION 4.03 REPORTS
(a) The Parent shall deliver to the Trustee and, to each
Holder and to prospective purchasers of Notes identified to the Issuer by an
Initial Purchaser, (i) its respective annual and quarterly reports filed
pursuant to Section 13 or 15 (d) of the Exchange Act, within 15 days after such
reports have been filed with the SEC or (ii) in the event the Parent is not
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act within 15 days after it would have been (if it were subject to such
reporting obligations) required to file such reports with the SEC, annual and
quarterly financial statements substantially equivalent to financial statements
that would have been included in reports filed with the SEC if the Parent were
subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Issuer's certified independent public accountants as such would be required in
such reports to the SEC and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required and, unless the SEC will not accept such reports, file
with the SEC the annual, quarterly and other reports which it is or would have
been required to file with the SEC. If at any time Parent does not file such
reports which include the Issuer and its Subsidiaries on a consolidated basis
with Parent, the Issuer shall succeed the obligations of Parent hereunder.
(b) For so long as any Transfer Restricted Notes remain
outstanding, the Issuer and the Subsidiary Guarantors shall furnish to all
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute
52
60
constructive notice of any information contained therein or determinable from
information contained therein, including the Issuer's compliance with any of
its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer's Certificates).
SECTION 4.04 COMPLIANCE CERTIFICATE
(a) The Issuer shall deliver to the Trustee, within 90
days after the end of each fiscal year, an Officer's Certificate stating that a
review of the activities of the Issuer and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Issuer and its Subsidiaries
have kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Issuer and its
Subsidiaries have kept, observed, performed and fulfilled each and every
covenant contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
action the Issuer is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Issuer is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified Public Accountants, the
year-end financial statements delivered pursuant to Section 4.03(a) hereof
shall be accompanied by a written statement of the Issuer's independent public
accountants (who shall be a firm of established national reputation) that in
making the examination necessary for certification of such financial
statements, nothing has come to their attention that would lead them to believe
that the Issuer has violated any provisions of Article 4 or Article 5 hereof
or, if any such violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants shall not be
liable directly or indirectly to any Person for any failure to obtain knowledge
of any such violation.
(c) The Issuer shall, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officer's Certificate specifying such
Default or Event of Default and what action the Issuer is taking or proposes to
take with respect thereto.
53
61
SECTION 4.05 TAXES
The Issuer shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Holders of the Notes.
SECTION 4.06 STAY, EXTENSION AND USURY LAWS
The Issuer covenants (to the extent that it may lawfully do
so) that it shall not at any time insist upon, plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay, extension or
usury law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of this Indenture; and the Issuer (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07 REPURCHASE OF NOTES AT THE OPTION OF THE HOLDER UPON A CHANGE
OF CONTROL
Upon the occurrence of a Change of Control (subject to the
provisions of the immediately succeeding paragraph), each Holder of Notes shall
have the right, at such Holder's option, pursuant to an offer (subject only to
conditions required by applicable law, if any) by the Issuer (the "Change of
Control Offer") to require the Issuer to repurchase all or any part of such
Holder's Notes (provided, that the principal amount of such Notes must be
$1,000 or an integral multiple thereof) on a date (the "Change of Control
Purchase Date") that shall be no later than 40 Business Days after the
occurrence of such Change of Control, at a cash price (the "Change of Control
Purchase Price") equal to 101% of the principal amount thereof together with
accrued and unpaid interest and Liquidated Damages, if any, to the Change of
Control Purchase Date. The Change of Control Offer shall be made within 35
days following a Change of Control and shall remain open for 20 Business Days
following its commencement or such longer period as may be required by
applicable law (the "Change of Control Offer Period").
If a New Credit Facility is in effect, or any amounts are
owing thereunder, at the time of the occurrence of a Change of Control, prior
to the mailing of the notice to Holders described in the preceding paragraph,
but in any event within thirty days following any Change of Control, the Issuer
shall (i) repay in full all
54
62
Obligations under the New Credit Facility or offer to repay in full all
Obligations under the New Credit Facility and repay the Obligations under the
New Credit Facility of each lender who has accepted such offer or (ii) obtain
the requisite consent under the New Credit Facility to permit the repurchase of
Notes as described above. The Issuer must first comply with the covenant
described in the preceding sentence before it shall be required to purchase
Notes in the event of a Change of Control; provided that the Issuer's failure
to comply with the covenant described in the preceding sentence shall
constitute an Event of Default described in clause (iii) under "Events of
Default" below if not cured within thirty days after the notice required by
such clause. As a result of the foregoing, a Holder of the Notes may not be
able to compel the Issuer to purchase the Notes unless the Issuer is able at
the time to refinance all of the New Credit Facility or obtain requisite
consents under the New Credit Facility.
On or before the Change of Control Purchase Date, the Issuer
shall (1) accept for payment all Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent cash
sufficient to pay the Change of Control Purchase Price (together with accrued
and unpaid interest and Liquidated Damages, if any) of all Notes so tendered
and (3) deliver to the Trustee Notes so accepted together with an Officer's
Certificate listing the Notes or portions thereof being purchased by the
Issuer. The Paying Agent shall promptly pay the Holders of Notes so accepted
an amount equal to the Change of Control Purchase Price (together with accrued
and unpaid interest and Liquidated Damages, if any), and the Trustee shall
authenticate and deliver to such Holders a new Note equal in principal amount
to any unpurchased portion of the Notes surrendered. Any Notes not so accepted
shall be delivered promptly by the Issuer to the Holder thereof. The Issuer
shall publicly announce the results of the Change of Control Offer on or as
soon as practicable after the Change of Control Purchase Date.
Any Change of Control Offer will be made in compliance with
all applicable laws, rules and regulations, including, if applicable,
Regulation 14E under the Exchange Act and the rules thereunder and all other
applicable Federal and state securities laws. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this covenant, compliance by the Issuer or any of the Guarantors with such
laws and regulations shall not in and of itself cause a breach of its
obligations under such covenant.
If the Change of Control Purchase Date hereunder is on or
after an interest payment record date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any,
due on such Interest Payment Date) will be paid to the Person in whose name a
Note is registered at the close of business on such Record Date, and such
interest (and Liquidated Damages, if applicable) will not be payable to Holders
who tender the Notes pursuant to the Change of Control Offer.
55
63
SECTION 4.08 LIMITATION ON SALE OF ASSETS AND SUBSIDIARY STOCK
The Issuer and the Subsidiary Guarantors shall not, and shall
not permit any of their Subsidiaries to, in one or a series of related
transactions, convey, sell, transfer, assign or otherwise dispose of, directly
or indirectly, any of its property, business or assets, including by merger or
consolidation (in the case of a Subsidiary of the Issuer), and including any
sale or other transfer or issuance of any Equity Interests of any Subsidiary of
the Issuer, whether by the Issuer or a Subsidiary of either or through the
issuance, sale or transfer of any Equity Interest by a Subsidiary of the Issuer
(any of the foregoing an "Asset Sale"), unless (1)(a) the Net Cash Proceeds
therefrom (the "Asset Sale Offer Amount") are applied (i) within 330 days after
the date of each such Asset Sale, to the optional redemption of the Notes in
accordance with the terms of this Indenture and, at the Issuer's option, other
Indebtedness of the Issuer ranking on a parity with the Notes from time to time
outstanding with similar provisions requiring the Issuer to make an offer to
purchase or to redeem such Indebtedness with the proceeds from asset sales, pro
rata in proportion to the respective principal amounts (or accreted values in
the case of Indebtedness issued with an original issue discount) of the Notes
and such other Indebtedness then outstanding or (ii) within 360 days after the
date of each such Asset Sale, to the repurchase of the Notes pursuant to a cash
offer to repurchase Notes and, at the Issuer's option, other Indebtedness of
the Issuer ranking on a parity with the Notes from time to time outstanding
with similar provisions requiring the Issuer to make an offer to purchase or to
redeem such Indebtedness with the proceeds from asset sales, pro rata in
proportion to the respective principal amounts (or accreted values in the case
of Indebtedness issued with an original issue discount) of the Notes and such
other Indebtedness then outstanding (the "Asset Sale Offer") at a purchase
price of 100% of principal amount (or accreted value in the case of
Indebtedness issued with an original issue discount) (the "Asset Sale Offer
Price") together with accrued and unpaid interest and Liquidated Damages, if
any, to the date of payment, made within 330 days of such Asset Sale, or (b)
within 330 days following such Asset Sale, the Asset Sale Offer Amount is (i)
used to make a Permitted Investment (other than pursuant to clause (i) thereof)
or otherwise invested (or committed, pursuant to a binding commitment subject
only to reasonable, customary closing conditions, to be invested, and in fact
is so invested, within an additional 90 days) in assets and property which in
the good faith reasonable judgment of the Issuer will immediately constitute or
be a part of a Related Business of the Issuer or such Subsidiary (if it
continues to be a Subsidiary) immediately following such transaction, except
that no proceeds from an Asset Sale of Existing Assets or assets acquired
(directly or indirectly) from the proceeds of an Asset Sale of Existing Assets
may be invested in or used to acquire assets or property for a Foreign
Subsidiary or (ii) used to retire Purchase Money Indebtedness or other Senior
Debt in accordance with
56
64
any provisions therein requiring the Issuer to repurchase, redeem, or otherwise
retire such Indebtedness with the proceeds from such Asset Sale, Indebtedness
outstanding under the New Credit Facility and, except with respect to the use
of proceeds from the sale of Assets to Be Disposed of, to permanently reduce
(in the case of Senior Debt that is not Purchase Money Indebtedness) the amount
of such Indebtedness outstanding on the Issue Date, any amount outstanding
under the New Credit Facility, or Indebtedness permitted pursuant to paragraph
(c), (f) or (g) of Section 4.10 (including that in the case of a revolver or
similar arrangement that makes credit available, such commitment is permanently
so reduced by such amount), except that no proceeds from an Asset Sale of
Existing Assets or assets acquired from the proceeds or Asset Sale of Existing
Assets may be used to retire Indebtedness of a Foreign Subsidiary (unless such
Existing Assets were assets of such Foreign Subsidiary on the Issue Date), (2)
with respect to any transaction or related series of transactions of
securities, property or assets with an aggregate fair market value in excess of
$3,000,000, at least 75% of the consideration for such Asset Sale (excluding
(a) Senior Debt assumed by a transferee which assumption permanently reduces
the amount of Indebtedness outstanding on the Issue Date or permitted pursuant
to paragraph (c), (f) or (g) of Section 4.10 (including that in the case of a
revolver or similar arrangement that makes credit available, such commitment is
permanently so reduced by such amount), (b) Purchase Money Indebtedness assumed
by a transferee and (c) property that within 30 days of such Asset Sale is
converted into cash or Cash Equivalents) consists of cash or Cash Equivalents
which is applied as set forth above or consists of Restricted Investments, (3)
no Default or Event of Default shall have occurred and be continuing at the
time of, or would occur after giving effect, on a pro forma basis, to, such
Asset Sale, and (4) the Issuer determines in good faith that the Issuer or
such Subsidiary, as applicable, receives fair market value for such Asset Sale.
Any Asset Sale Offer may be deferred until the accumulated Net
Cash Proceeds from Asset Sales not applied to the uses set forth in clauses
1(a)(i) or 1(b) above (the "Excess Proceeds") exceeds $20,000,000. Each Asset
Sale Offer shall remain open for at least 20 Business Days following its
commencement (the "Asset Sale Offer Period"). Upon expiration of the Asset
Sale Offer Period, the Issuer shall apply the Asset Sale Offer Amount plus an
amount equal to accrued and unpaid interest and Liquidated Damages, if any, to
the purchase of all Indebtedness properly tendered pursuant to the Asset Sale
Offer (on a pro rata basis (in $1,000 increments) if the Asset Sale Offer
Amount is insufficient to purchase all Indebtedness so tendered) at the Asset
Sale Offer Price (together with accrued interest and Liquidated Damages, if
any). To the extent that the aggregate amount of Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the
Issuer may use any remaining Net Cash Proceeds for general corporate purposes
as otherwise permitted by this Indenture and following each Asset Sale Offer
the Excess Proceeds amount shall be reset to zero.
57
65
Notwithstanding and without complying with the foregoing
provisions: (i) the Issuer and its Subsidiaries may, in the ordinary course of
business, convey, sell, transfer, assign or otherwise dispose of (x) assets or
series of related assets with an aggregate fair market value not in excess of
$1,000,000, but in any case limited in the aggregate to not more than
$5,000,000 million for any fiscal year and (y) inventory and other assets
acquired and held for resale in the ordinary course of business; (ii) the
Issuer and its Subsidiaries may convey, sell, transfer, assign or otherwise
dispose of assets pursuant to and in accordance with the limitation on mergers,
sales or consolidations provisions in this Indenture; (iii) the Issuer and its
Subsidiaries may sell or dispose of damaged, worn out or other obsolete
property in the ordinary course of business so long as such property is no
longer necessary for the proper conduct of the business of the Issuer or such
Subsidiary, as applicable; (iv) the Issuer and the Subsidiary Guarantors may
convey, sell, transfer, assign or otherwise dispose of assets to the Issuer or
any of the Subsidiary Guarantors; (v) the Issuer and its Subsidiaries may
surrender or waive contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind; (vi) the Issuer and its
Subsidiaries may grant Liens not prohibited by this Indenture; (vii) the Issuer
and each of the Subsidiaries may liquidate Cash Equivalents in the ordinary
course of business; (viii) the Issuer and each of the Subsidiaries may sell
sales of accounts receivable and related assets of the type specified in the
definition of Qualified Receivables Transaction to a Receivables Subsidiary for
the fair market value thereof, including cash in an amount at least equal to
75% of the book value thereof as determined in accordance with GAAP, and
transfers of accounts receivable and related assets of the type specified in
the definition of Qualified Receivables Transaction (or a fractional undivided
interest therein) by a Receivables Subsidiary in a Qualified Receivables
Transaction; (ix) Foreign Subsidiaries may convey, sell, transfer, assign or
otherwise dispose of assets to the Issuer, any of the Subsidiary Guarantors, or
any other Foreign Subsidiary; and (x) the Issuer and its Subsidiaries may make
Permitted Investments (excluding clauses (b) and (l) in the definition thereof)
and Restricted Investments made under clause (s) of the third paragraph under
"Limitation on Restricted Payments."
Notwithstanding anything herein to the contrary, other than as
provided in the following sentence, the Issuer and its Subsidiaries may sell
(including by merger, consolidation or issuance), transfer, assign, license,
sublicense or otherwise dispose of (collectively "Transfer") any software,
trademark or other intellectual property, or any interest (including any Equity
Interest) in any entity which has as its principal assets such property or
rights, and such Transfer shall not be treated as an Asset Sale hereunder, if
(a) the Issuer and its Subsidiary Guarantors thereafter have unfettered access
to and use of such property or rights at a cost to the Issuer and its
Subsidiaries which is not in excess of the aggregate normal operating costs and
third party license fees which have been incurred by the Issuer and its
Subsidiaries prior to any such Transfer, and(b) any proceeds from any Transfer
of any such property, rights or
58
66
interests (including Equity Interests) are used (i) solely for the purpose of
the development or installation or implementation of such property or rights
(or similar property or rights) or (ii) otherwise in accordance with the
provisions of the first paragraph of this covenant. Notwithstanding the
preceding sentence or any other provision of this covenant to the contrary, the
Issuer and its Subsidiaries may not Transfer the internally developed product
distribution software used by the Issuer and its Subsidiaries ("Core Operating
Software") or intellectual property rights therein or any interests (including
any Equity Interests) in any entity which has as its principal assets such Core
Operating Software or rights therein, unless the Issuer and its Subsidiary
Guarantors comply with clauses (a) and (b) of the preceding sentence in
connection with such Transfer.
Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable Federal and state securities laws. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this covenant, compliance by the Issuer or any of its Subsidiaries with such
laws and regulations shall not in and of itself cause a breach of its
obligations under such covenant.
If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the Person in whose name a Note is registered at the close of business on such
Record Date, and such interest (or Liquidated Damages, if applicable) will not
be payable to Holders who tender Notes pursuant to such Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Issuer shall
send, by first class mail, a notice to each of the Holders, with a copy to the
Trustee. The notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale Offer. The
Asset Sale Offer shall be made to all Holders. The notice, which shall govern
the terms of the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made
pursuant to this Section 4.08 and the length of time the Asset Sale
Offer shall remain open;
(b) the Asset Sale Offer Amount, the purchase
price and the Purchase Date;
(c) that any Note not tendered or accepted for
payment
59
67
shall continue to accrete or accrue interest;
(d) that, unless the Issuer defaults in making
such payment, any Note accepted for payment pursuant to the Asset Sale
Offer shall cease to accrete or accrue interest on and after the Asset
Sale Purchase Date;
(e) that Holders electing to have a Note
purchased pursuant to an Asset Sale Offer may only elect to have all
of such Note purchased and may not elect to have only a portion of
such Note purchased;
(f) that Holders electing to have a Note
purchased pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, or transfer by
book-entry transfer, to the Issuer, a depositary, if appointed by the
Issuer, or a Paying Agent at the address specified in the notice at
least three days before the Asset Sale Purchase Date;
(g) that Holders shall be entitled to withdraw
their election if the Issuer, the depositary or the Paying Agent, as
the case may be, receives, not later than the expiration of the Asset
Sale Offer Period, a facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is withdrawing
his election to have such Note purchased;
(h) that, if the aggregate principal amount of
Notes surrendered by Holders exceeds the Asset Sale Offer Amount, the
Issuer shall select the Notes to be purchased on a pro rata basis
(with such adjustments as may be deemed appropriate by the Issuer so
that only Notes in denominations of $1,000, or integral multiples
thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only
in part shall be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered (or transferred by
book-entry transfer).
On or before the Asset Sale Purchase Date, the Issuer shall,
to the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Asset Sale Offer Amount of Notes or portions thereof tendered
pursuant to the Asset Sale Offer, or if less than the Asset Sale Offer Amount
has been tendered, all Notes tendered, and shall deliver to the Trustee an
Officer's Certificate stating that such Notes or portions thereof were accepted
for payment by the Issuer in accordance with the terms of this Section 4.08.
The Issuer, the Depositary or the Paying Agent, as the case may be, shall
promptly (but in any case not later than five days after the Purchase
60
68
Date) mail or deliver to each tendering Holder an amount equal to the purchase
price of the Notes tendered by such Holder and accepted by the Issuer for
purchase, and the Issuer shall promptly issue a new Note, and the Trustee, upon
written request from the Issuer shall authenticate and mail or deliver such new
Note to such Holder, in a principal amount equal to any unpurchased portion of
the Note surrendered. Any Note not so accepted shall be promptly mailed or
delivered by the Issuer to the Holder thereof. The Issuer shall publicly
announce the results of the Asset Sale Offer on the Purchase Date.
SECTION 4.09 LIMITATION ON RESTRICTED PAYMENTS
The Issuer and the Subsidiary Guarantors shall not, and shall
not permit any of their Subsidiaries to, directly or indirectly, make any
Restricted Payment if, after giving effect to such Restricted Payment on a pro
forma basis, (1) a Default or an Event of Default shall have occurred and be
continuing, (2) the Issuer is not permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Debt Incurrence Ratio in paragraph (a)
of Section 4.10, or (3) the aggregate amount of all Restricted Payments made by
the Issuer and its Subsidiaries, including after giving effect to such proposed
Restricted Payment, from and after the Issue Date, would exceed the sum of,
without duplication, (a) $15,000,000, plus (b) 50% of the aggregate
Consolidated Net Income of the Issuer and its Consolidated Subsidiaries for the
period (taken as one accounting period), commencing on the first day of the
first full fiscal quarter commencing after the Issue Date, to and including the
last day of the fiscal quarter ended immediately prior to the date of each such
calculation (or, in the event Consolidated Net Income for such period is a
deficit, then minus 100% of such deficit), plus (c) to the extent not included
in the amount described in clause (b) above, (i) 100% of the aggregate Net Cash
Proceeds received after the Issue Date by the Issuer from the issue or sale of,
or from Capital Contributions in respect of, Equity Interests of the Issuer or
of debt securities of the Issuer or any Subsidiary Guarantor that have been
converted into, or cancelled in exchange for, Equity Interests of the Issuer
(other than Equity Interests (or convertible debt securities) sold to a
Subsidiary of the Issuer and other than Disqualified Capital Stock or debt
securities that have been converted into or exchanged for Disqualified Capital
Stock), plus (ii) 100% of any dividends or other distributions received by the
Issuer or a Subsidiary of the Issuer after the Issue Date from an Unrestricted
Subsidiary of the Issuer, plus (iii) 100% of the cash proceeds (or Cash
Equivalents) realized upon the sale of any Unrestricted Subsidiary (less the
amount of any reserve established for purchase price adjustments and less the
maximum amount of any indemnification or similar contingent obligation for the
benefit of the purchaser, any of its Affiliates or any other third party in
such sale, in each case as adjusted for any permanent reduction in any such
amount on or after the date of such sale, other than by virtue of a payment
made to such Person) following the Issue Date, plus (iv) to the extent that any
Restricted Investment that was made after the
61
69
Issue Date is sold for cash (or Cash Equivalents) or otherwise liquidated or
repaid for cash (or Cash Equivalents), at the Issuer's option the amount of
cash proceeds (or Cash Equivalents) received by the Issuer or any Subsidiary
Guarantor with respect to such Restricted Investment plus, (v) upon the
redesignation of an Unrestricted Subsidiary as a Subsidiary, the lesser of (x)
the fair market value of such Subsidiary or (y) the aggregate amount of all
Investments made in such Subsidiary subsequent to the Issue Date by the Issuer
and its Subsidiaries.
Clauses (2) and (3) of the immediately preceding paragraph
will not prohibit (i) Restricted Investments, provided, that after giving pro
forma effect to such Restricted Investments, the aggregate amount of all such
Restricted Investments made on or after the Issue Date that are outstanding
(after reducing such aggregate amount by (A) the net cash proceeds received by
the Issuer or any Subsidiary Guarantor from any Restricted Investments made
after the Issue Date that are sold or otherwise liquidated or repaid to the
Issuer or its Subsidiary Guarantors, other than amounts credited, at the option
of the Issuer, under clause (iv) of the immediately preceding paragraph, and
(B) the amount of all Restricted Investments made after the Issue Date that
have become Permitted Investments, valued at the lesser of (x) the fair market
value thereof on the date that such Investments became Permitted Investments or
(y) the aggregate amount of such prior Investments) does not exceed the sum of
(A) $50,000,000 plus (B) the aggregate amount of any Investments that, but for
the fact that such Investments were made prior to the Issue Date would be
Restricted Investments ("Existing Restricted Investments") less the amount by
which the net cash proceeds received by the Issuer and its Subsidiary
Guarantors upon the sale, liquidation or repayment of Existing Restricted
Investments is less than the original amount of such Existing Restricted
Investments; provided, however, that the aggregate of (B) shall not exceed
$65,500,000; (ii) pro rata dividends and other distributions on the Equity
Interests of any Subsidiary of the Issuer by such Subsidiary; (iii) payments in
lieu of fractional shares in an amount not to exceed $50,000 in the aggregate;
(iv) repurchases of Capital Stock from employees of the Parent, the Issuer or
Subsidiaries of the Issuer pursuant to any management agreement or stock
option agreement upon their death or disability or the termination of their
employment in an aggregate amount to all employees not to exceed $5,000,000 per
year plus the net cash proceeds received by the Issuer of Capital Stock (other
than Disqualified Capital Stock) of the Parent sold to directors, executive
officers, members of the management or employees of the Parent, the Issuer and
its Subsidiaries in such year on and after the Issue Date; (v) the acquisition
by a Receivables Subsidiary in connection with a Qualified Receivables
Transaction of Equity Interests of a trust or other Person established by such
Receivables Subsidiary to effect such Qualified Receivables Transaction, and
the immediately preceding paragraph will not prohibit, (x) Permitted Payments
to Parent, (y) a Qualified Exchange or (z) the payment of any dividend on
Qualified Capital Stock within 60 days after the date of declaration if such
dividend could have been made on the date of such
62
70
declaration in compliance with the foregoing provisions. The full amount of
any Restricted Payment made pursuant to the foregoing clauses (ii) , (iii), (v)
and (viii) (but not pursuant to clauses (i), (iv), (vi) and (viii)) of the
immediately preceding sentence, however, will be deducted in the calculation of
the aggregate amount of Restricted Payments available to be made referred to in
clause (c) of the immediately preceding paragraph.
Additionally, (a) the foregoing clauses (2) and (3) of the
first paragraph of this covenant will not prohibit any payment of cash
dividends to Parent, which dividends are used by Parent (x) to make the next
scheduled interest payment, or, at the final scheduled maturity of July 1,
2000, the then outstanding principal due (but in no event to exceed
$325,000,000), on the Parent Convertible Notes as required by the terms of the
Parent Convertible Notes in effect on the Issue Date or (y) to pay the next
scheduled interest payment on Refinanced Parent Convertible Notes (but in no
event to exceed an aggregate of $325,000,000, less amounts, if any, used to
repay the Parent Convertible Notes) and (b) the foregoing clause (3) of the
first paragraph of this covenant will not prohibit repurchases of Capital Stock
(other than Disqualified Capital Stock) of the Parent in an aggregate amount
not to exceed $100,000,000 and provided that the Parent Consolidated Leverage
Ratio for the most recent four consecutive fiscal quarters ending on or prior
to the date of any such repurchase would be no more than 4.5 to 1, an
additional $50,000,000 in the aggregate; provided, that the aggregate amount of
all payments made pursuant to clauses (a) and (b) of this paragraph (excluding
payments of interest on the Parent Convertible Notes and Refinanced Parent
Convertible Notes paid in accordance with clauses (a) (x) and (a) (y)) shall
not exceed $400,000,000. Any Restricted Payment made pursuant to this
paragraph shall be counted in the calculation of the aggregate amount of
Restricted Payments available to be made pursuant to clause (3) of the first
paragraph of this covenant except that any such amount that is substantially
concurrently used by Parent to pay interest on or retire Parent Convertible
Notes in accordance with clause (a) (x) or to pay interest on Refinanced
Convertible Notes in accordance with clause (a) (y) will not be counted in such
calculation. Notwithstanding anything herein to the contrary, in no event
shall any proceeds from any debt ranking senior to or pari passu with any of
the Notes or Guarantees, as applicable, of the Issuer or any of its
Subsidiaries (excluding Indebtedness of any Foreign Subsidiary that is
non-recourse to the Issuer and its other Subsidiaries) be used (directly or
indirectly) to make any principal payments in respect of the Parent Convertible
Notes unless on the date of such incurrence of any such debt ranking senior to
or pari passu with any of the Notes or Guarantees, the Consolidated Leverage
Ratio of the Issuer for the most recent four consecutive fiscal quarters ending
on or prior to the date of such incurrence, after giving effect, on a pro forma
basis, to such incurrence of Indebtedness would be less than 4.5 to 1.
63
71
For purposes of this Section 4.09, the amount of any
Restricted Payment, if other than cash, shall be the fair market value thereof,
as determined by the Issuer and set forth in an Officer's Certificate delivered
to the Trustee pursuant to the next sentence. Additionally, on the date of
each Restricted Payment in excess of $10,000,000, the Issuer shall deliver an
Officer's Certificate to the Trustee describing in reasonable detail the nature
of such Restricted Payment, stating the amount of such Restricted Payment,
stating in reasonable detail the provisions of this Indenture pursuant to which
such Restricted Payment was made and certifying that such Restricted Payment
was made in compliance with the terms of this Indenture.
SECTION 4.10 LIMITATION ON INCURRENCE OF ADDITIONAL INDEBTEDNESS AND
DISQUALIFIED CAPITAL STOCK.
Except as set forth below in this Section 4.10, the Issuer and
the Subsidiary Guarantors shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, issue, assume, guaranty, incur, become
directly or indirectly liable with respect to, extend the maturity or otherwise
become responsible for, contingently or otherwise, (individually and
collectively, to "incur" or as appropriate, an "incurrence") any Indebtedness
(including Acquisition Indebtedness) or any Disqualified Capital Stock from and
after the Issue Date. Notwithstanding the foregoing:
(a) if (i) no Default or Event of Default shall have occurred
and be continuing at the time of, or would occur after giving effect on a pro
forma basis to, such incurrence of Indebtedness or Disqualified Capital Stock
and (ii) on the date of such incurrence (the "Incurrence Date"), the
Consolidated Coverage Ratio of the Issuer for the Reference Period immediately
preceding the Incurrence Date, after giving effect on a pro forma basis to such
incurrence of such Indebtedness or Disqualified Capital Stock and, to the
extent set forth in the definition of Consolidated Coverage Ratio, the use of
proceeds thereof, would be at least 2.0 to 1 (the "Debt Incurrence Ratio"),
then the Issuer may incur such Indebtedness or Disqualified Capital Stock and
the Subsidiary Guarantors may incur such Indebtedness provided that no
Guarantee may be incurred pursuant to this paragraph unless the guaranteed
Indebtedness is incurred by the Company or a Subsidiary Guarantor pursuant to
this paragraph;
(b) the Issuer and the Subsidiary Guarantors may incur
Indebtedness evidenced by the Notes (and any related Guarantees) issued as of
the original Issue Date and the Exchange Notes (and any related Guarantees)
issued in exchange therefor;
(c) the Issuer and the Subsidiary Guarantors may incur
Purchase Money Indebtedness on or after the Issue Date, provided, that (i) the
aggregate amount of such Indebtedness incurred on or after the Issue Date and
outstanding at any time pursuant to this paragraph (c) (including any
Indebtedness issued to refinance, replace, defease or refund such Indebtedness)
shall not exceed (A) $35,000,000 plus (B)
64
72
Purchase Money Indebtedness existing on the Issue Date; provided, however, (B)
shall not exceed $29,200,000, and (ii) in each case, such Indebtedness shall
not constitute more than 100% of the cost (determined in accordance with GAAP)
to the Issuer or such Subsidiary Guarantor, as applicable, of the property so
purchased or leased;
(d) the Issuer, the Subsidiary Guarantors and the Foreign
Subsidiaries, as applicable, may incur permitted Refinancing Indebtedness with
respect to any Existing Indebtedness and Indebtedness or Disqualified Capital
Stock, as applicable, incurred in accordance with this covenant so long as, in
the case of Indebtedness used to refinance, replace, defease or refund secured
Indebtedness, such Refinancing Indebtedness is secured only by the assets that
secured the Indebtedness so refinanced;
(e) the Issuer, the Subsidiary Guarantors and the Foreign
Subsidiaries, as applicable, may incur Permitted Indebtedness;
(f) the Issuer, the Subsidiary Guarantors and the Foreign
Subsidiaries may incur Indebtedness in an aggregate amount outstanding at any
time pursuant to this clause (f) (including any Indebtedness issued to
refinance, replace, defease or refund such Indebtedness) of up to $50,000,000,
minus the amount of any such Indebtedness retired (including, in the case of a
revolver or a similar arrangement, to the extent permanently retired) with Net
Cash Proceeds from any Asset Sale (other than a sale of Assets to Be Disposed
of) or assumed by a transferee in an Asset Sale;
(g) the Issuer and the Subsidiary Guarantors may incur
Indebtedness pursuant to the New Credit Facility up to an aggregate amount
outstanding at any time pursuant to this clause (g) (including any Indebtedness
issued to refinance, replace, defease or refund such Indebtedness) at any time
of $1,000,000,000, minus the amount of any such Indebtedness retired
(including, in the case of a revolver or a similar arrangement, to the extent
permanently retired) with Net Cash Proceeds from any Asset Sale (other than a
sale of Assets to Be Disposed of) or assumed by a transferee in an Asset Sale;
(h) the Foreign Subsidiaries may incur Indebtedness (and the
Issuer and the Subsidiary Guarantors may guarantee such Indebtedness of the
Foreign Subsidiaries) in an aggregate amount outstanding at any time pursuant
to this clause (h) (including any Indebtedness used to refinance, replace or
refund such Indebtedness) of up to $50,000,000 plus (B) the amount of the
Foreign Subsidiary Indebtedness outstanding on the Issue Date, minus the amount
of any such Indebtedness retired (including, in the case of a revolver or a
similar arrangement, to the extent permanently retired) with the Net Cash
Proceeds from any Asset Sale (other than a sale of Assets to Be Disposed of) or
assumed by a transferee in an Asset Sale; provided, however, the aggregate of
(B) shall not exceed $71,100,000; and
65
73
(i) the Finance Subsidiary may incur Finance Subsidiary
Indebtedness.
Indebtedness or Disqualified Capital Stock of any Person which
is outstanding at the time such Person becomes a Subsidiary of the Issuer
(including, without limitation, upon designation of any subsidiary or other
Person as a Subsidiary and upon the contribution of the Equity Interests
thereof to the Issuer) or is merged with or into or consolidated with the
Issuer or a Subsidiary of the Issuer shall be deemed to have been incurred at
the time such Person becomes such a Subsidiary of the Issuer or is merged with
or into or consolidated with the Issuer or a Subsidiary of the Issuer, as
applicable.
SECTION 4.11 LIMITATION ON LIENS SECURING INDEBTEDNESS
The Issuer and the Subsidiary Guarantors shall not, and shall
not permit any of their Subsidiaries to create, incur, assume or suffer to
exist any Lien of any kind, other than Permitted Liens, now owned or acquired
on or after the date of this Indenture.
SECTION 4.12 LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES
The Issuer and the Subsidiary Guarantors shall not, and shall
not permit any of their Subsidiaries to, directly or indirectly, create, assume
or suffer to exist any consensual restriction on the ability of any Subsidiary
of the Issuer to pay dividends or make other distributions to or on behalf of,
or to pay any obligation to or on behalf of, or otherwise to transfer assets or
property to or on behalf of, or make or pay loans or advances to or on behalf
of, the Issuer or any of its Subsidiaries except (a) restrictions imposed by
the Notes or this Indenture or by other indebtedness of the Issuer or any of
the Subsidiary Guarantors ranking pari passu with the Notes or the Guarantees,
as applicable, provided such restrictions are no more restrictive taken as a
whole than those imposed by this Indenture and the Notes, (b) restrictions
imposed by applicable law, (c) existing restrictions under Indebtedness
outstanding on the Issue Date and any amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements or refinancings of
such Indebtedness, provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacement or refinancings are
no more restrictive taken as a whole with respect to dividend and other payment
restrictions than those contained in the applicable existing Indebtedness, (d)
restrictions under any Acquired Indebtedness not incurred in violation of this
Indenture or any agreement relating to any property, asset, or business
acquired by the Issuer or any of its Subsidiaries, which restrictions existed
at the time of acquisition, were not put in place in connection with or in
anticipation of such acquisition and are not applicable to any Person, other
than the Person acquired, or to
66
74
any property, asset or business, other than the property, assets and business
so acquired, (e) any such restriction or requirement imposed by Senior Debt
incurred under Section 4.10, provided such restriction or requirement is no
more restrictive than that imposed by the New Credit Facility as of the Issue
Date, (f) restrictions with respect solely to a Subsidiary of the Issuer
imposed pursuant to a binding agreement which has been entered into for the
sale or disposition of all or substantially all of the Equity Interests or
assets of such Subsidiary, provided such restrictions apply solely to the
Equity Interests or assets of such Subsidiary, (g) restrictions on transfer
contained in Purchase Money Indebtedness incurred pursuant to paragraph (c) of
Section 4.10, provided such restrictions relate only to the transfer of the
property acquired with the proceeds of such Purchase Money Indebtedness, (h)
restrictions contained in Indebtedness or other contractual requirements of a
Receivables Subsidiary in connection with a Qualified Receivables Transaction,
provided that such restrictions apply only to such Receivables Subsidiary, (i)
restrictions contained in Indebtedness incurred by a Foreign Subsidiary in
accordance with the covenant "Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock," provided such restrictions relate
only to one or more Foreign Subsidiaries and (j) any asset subject to a Lien
which is not prohibited to exist with respect to such asset pursuant to the
terms of this Indenture may be subject to restrictions on the transfer or
disposition thereof or (k) in connection with and pursuant to permitted
Refinancings, replacements of restrictions imposed pursuant to clauses (a), (c)
or (d) of this paragraph that are not more restrictive than those being
replaced and do not apply to any other Person or assets than those that would
have been covered by the restrictions in the Indebtedness so refinanced.
Notwithstanding the foregoing, neither (a) customary provisions restricting
subletting or assignment of any lease entered into in the ordinary course of
business, consistent with industry practice, nor (b) Liens permitted under the
terms of this Indenture on assets securing Senior Debt or Purchase Money
Indebtedness incurred in accordance with Section 4.10 shall in and of
themselves be considered a restriction on the ability of the applicable
Subsidiary to transfer such agreement or assets, as the case may be.
SECTION 4.13 LIMITATIONS ON LAYERING INDEBTEDNESS
The Issuer and the Subsidiary Guarantors shall not, and shall
not permit any of their Subsidiaries to, directly or indirectly, incur or
suffer to exist any Indebtedness (other than the Notes and any Acquired
Indebtedness not incurred in connection with or in contemplation of such
Acquisition by the Issuer or a Subsidiary of the Issuer) that is subordinate in
right of payment to any other Indebtedness of the Issuer or a Subsidiary
Guarantor unless, by its terms, such Indebtedness is subordinate in right of
payment to, or ranks pari passu with, the Notes or the Guarantee, as
applicable.
67
75
SECTION 4.14 LIMITATIONS ON TRANSACTIONS WITH AFFILIATES
The Issuer shall not, and shall not permit any of its
Subsidiaries to, on or after the Issue Date enter into any contract, agreement,
arrangement or transaction with any Affiliate (an "Affiliate Transaction"), or
any series of related Affiliate Transactions, other than Exempted Affiliate
Transactions, (l) involving consideration to either party in excess of
$5,000,000 unless such transaction is evidenced by an Officer's Certificate
addressed and delivered to the Trustee stating that the terms of such Affiliate
Transaction are fair and reasonable to the Issuer or such Subsidiary, as the
case may be, and no less favorable to the Issuer or such Subsidiary, as the
case may be, than could have been obtained in an arm's length transaction with
a non-Affiliate, and (2) involving consideration to either party in excess of
$l0,000,000, unless the Issuer, prior to the consummation thereof, obtains a
written favorable opinion as to the fairness of such transaction to the Issuer
from a financial point of view from an independent investment banking firm of
national reputation or, if pertaining to a matter for which such investment
banking firms do not customarily render such opinions, an appraisal or
valuation firm of national reputation.
SECTION 4.15 FUTURE SUBSIDIARY GUARANTORS
All present and future Subsidiaries of the Issuer (other than
Receivables Subsidiaries, Finance Subsidiaries, Excluded Subsidiaries and
Foreign Subsidiaries) jointly and severally shall guaranty irrevocably and
unconditionally all principal, premium, if any, and interest (and Liquidated
Damages, if any) on the Notes on a senior subordinated basis, provided that DDI
shall not be required to become a Guarantor until 120 days after the Issue
Date. Notwithstanding anything herein or in this Indenture to the contrary and
if permitted by the New Credit Facility, if any Subsidiary of the Issuer that
is not a Subsidiary Guarantor guarantees any other Indebtedness of the Issuer
or Parent or of any Subsidiary of the Issuer or Parent, or the Issuer or Parent
or any Subsidiary of the Issuer or of Parent, individually or collectively
pledges more than 65% of the Equity Interests of such Subsidiary to a United
States lender, then such Subsidiary must become a Guarantor.
SECTION 4.16 LIMITATION ON MERGER OF SUBSIDIARY GUARANTORS AND RELEASE OF
SUBSIDIARY GUARANTORS
No Subsidiary Guarantor shall consolidate or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person) another
Person unless (i) subject to the provisions of the following paragraph, the
Person formed by or surviving any such consolidation or merger (if other than
such Subsidiary Guarantor) assumes all the obligations of such Subsidiary
Guarantor pursuant to a supplemental indenture in form reasonably satisfactory
to the Trustee, pursuant to which such Person
68
76
shall unconditionally guarantee, on a senior subordinated basis, all of such
Subsidiary Guarantor's obligations under such Subsidiary Guarantor's guarantee
and this Indenture on the terms set forth in this Indenture; and (ii)
immediately before and immediately after giving effect to such transaction on a
pro forma basis, no Default or Event of Default shall have occurred or be
continuing.
Upon the sale or disposition (whether by merger, stock
purchase, asset sale or otherwise) of a Subsidiary Guarantor or all or
substantially all of its assets to an entity which is not a Subsidiary
Guarantor or the designation of a Subsidiary to become an Unrestricted
Subsidiary, which transaction is otherwise in compliance with this Indenture
(including, without limitation, the provisions of Section 4.08), such
Subsidiary Guarantor will be deemed released from its obligations under its
Guarantee of the Notes; provided, however, that any such termination shall
occur only to the extent that all obligations of such Subsidiary Guarantor
under all of its guarantees of, and under all of its pledges of assets or other
security interests which secure, any Indebtedness of the Issuer or any other
Subsidiary of the Issuer shall also terminate upon such release, sale or
transfer.
SECTION 4.17 LIMITATION ON STATUS AS AN INVESTMENT COMPANY
The Issuer, its Subsidiaries and Parent are prohibited from
taking any action that would require any of them to register as an "Investment
Company" (as that term is defined in the Investment Company Act of 1940, as
amended (the "Investment Company Act")), or otherwise become subject to
regulation under the Investment Company Act.
ARTICLE 5
SUCCESSORS
SECTION 5.01 LIMITATION ON MERGER, SALE OR CONSOLIDATION
Neither the Issuer nor Parent shall consolidate with or merge
with or into another Person or, directly or indirectly, sell, lease, convey or
transfer all or substantially all of its assets (computed on a consolidated
basis), whether in a single transaction or a series of related transactions, to
another Person or group of affiliated Persons, unless (i) either (a) the Issuer
or Parent, as applicable, is the continuing entity or (b) the resulting,
surviving or transferee entity is a corporation organized under the laws of the
United States, any state thereof or the District of Columbia and expressly
assumes by supplemental indenture all of the obligations of the Issuer or
Parent, as applicable, in connection with the Notes and this Indenture; (ii) no
Default or Event of Default shall exist or shall occur immediately after giving
effect on a pro forma basis to
69
77
such transaction; (iii) except in the case of a transaction involving only the
Parent, immediately after giving effect to such transaction on a pro forma
basis, the consolidated resulting, surviving or transferee entity would
immediately thereafter be permitted to incur at least $l.00 of additional
Indebtedness pursuant to the Debt Incurrence Ratio set forth in paragraph (a)
of Section 4.10; and (iv) the Issuer will have delivered to the Trustee an
Officer's Certificate addressed to the Trustee, stating that such
consolidation, merger, sale, assignment, transfer, lease, conveyance or
disposition and such supplemental indenture, if any, comply with this Indenture
and that the supplemental indenture is enforceable.
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Issuer or Parent, as applicable, in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Issuer or Parent, as applicable, is merged or
to which such transfer is made shall succeed to, and (except in case of a
lease) be substituted for, and may exercise every right and power of, the
Issuer or Parent, as applicable, under this Indenture with the same effect as
if such successor corporation had been named therein as the Issuer or Parent,
as applicable, and (except in case of a lease) the Issuer or Parent, as
applicable, shall be released from the obligations under the Notes and this
Indenture except with respect to any obligations that arise from, or are
related to, such transaction.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any transfer, lease,
conveyance or other disposition of all or substantially all of the assets of
the Issuer in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Issuer is merged or to
which such transfer is made shall succeed to, and (except in the case of a
lease) be substituted for (so that from and after the date of such transfer,
the provisions of this Indenture referring to the "Issuer" shall refer instead
to the successor corporation and not to the Issuer), and may exercise every
right and power of the Issuer under this Indenture with the same effect as if
such successor corporation had been named therein as the Issuer (except in the
case of a lease); the Issuer shall not be released from the obligation to pay
the principal of and interest on the Notes.
For the purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties
and assets of one or more Subsidiaries of the Issuer, the Issuer's interest in
which constitutes all or substantially all of the properties and assets of the
Issuer shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Issuer.
70
78
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT
An "Event of Default" occurs if:
(1) the Issuer fails to pay any installment of interest
(or Liquidated Damages, if any) on the Notes when and as the same
becomes due and payable and the Default continues for a period of 30
days;
(2) the Issuer fails to pay all or any part of the
principal of or premium, if any, on the Notes when and as the same
becomes due and payable at maturity, redemption by acceleration or
otherwise, including, without limitation, payment of the Change of
Control Purchase Price or the Asset Sale Offer Price, or otherwise;
(3) the failure by the Issuer or any Guarantor to observe
or perform any other covenant or agreement contained in the Notes or
this Indenture and, subject to certain exceptions, the continuance of
such failure for a period of 45 days after written notice is given to
the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in aggregate principal amount of Notes
outstanding;
(4) certain events of bankruptcy, insolvency or
reorganization in respect of the Issuer or any of its Significant
Subsidiaries;
(5) a default in any Indebtedness of the Issuer or any of
its Subsidiaries with an aggregate principal amount in excess of $10.0
million (a) resulting from the failure to pay principal at final
maturity or (b) as a result of which the maturity of such Indebtedness
has been accelerated prior to its stated maturity;
(6) final unsatisfied judgments not covered by insurance
aggregating in excess of $10.0 million, at any one time rendered
against the Issuer or any of its Significant Subsidiaries and not
stayed, bonded or discharged within 60 days.
SECTION 6.02 ACCELERATION
If an Event of Default occurs and is continuing (other than an
Event of Default specified in clause (4), above, relating to the Issuer, then
in every such case,
71
79
unless the principal of all of the Notes shall have already become due and
payable, either the Trustee or the Holders of at least 25% in aggregate
principal amount of the Notes then outstanding, by notice in writing to the
Issuer (and to the Trustee if given by Holders) (an "Acceleration Notice"), may
declare all principal, determined as set forth below, and accrued interest
thereon to be due and payable immediately; provided, however, that if any
Senior Debt is outstanding pursuant to the New Credit Facility, upon a
declaration of such acceleration, such principal and interest shall be due and
payable upon the earlier of (x) the day that is five Business Days after the
provision to the Issuer and the representative under the New Credit Facility of
such written notice, unless such Event of Default is cured or waived prior to
such date and (y) the date of acceleration of any Senior Debt under the New
Credit Facility. In the event a declaration of acceleration resulting from an
Event of Default described in clause (5) above has occurred and is continuing,
such declaration of acceleration shall be automatically annulled if such
Default is cured or waived or the holders of the Indebtedness which is the
subject of such Default have rescinded their declaration of acceleration in
respect of such Indebtedness within 45 days thereof and the Trustee has
received written notice of such cure, waiver or rescission and no other Event
of Default described in clause (5) above has occurred that has not been cured
or waived within 45 days of the declaration of such acceleration in respect of
such Indebtedness. If an Event of Default specified in clause (4) above
relating to the Issuer occurs, all principal and accrued interest thereon will
be immediately due and payable on all outstanding Notes without any declaration
or other act on the part of Trustee or the Holders. The Holders of a majority
in aggregate principal amount of Notes generally are authorized to rescind such
acceleration if all existing Events of Default, other than the non-payment of
the principal of, premium, if any, and interest on the Notes which have become
due solely by such acceleration and except any Default with respect to any
provision requiring a supermajority approval to amend, which Default may only
be waived by such a supermajority, have been cured or waived.
SECTION 6.03 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium or
Liquidated Damages, if any, and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding 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 Holder of a Note 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. All
remedies are cumulative to the extent permitted by law.
72
80
SECTION 6.04 WAIVER OF PAST DEFAULTS
Prior to the declaration of acceleration of the maturity of
the Notes, the Holders of a majority in aggregate principal amount of the Notes
at the time outstanding may waive on behalf of all the Holders any Default,
except a Default with respect to any provision requiring a supermajority
approval to amend, which Default may be waived only by such a supermajority,
and except a Default in the payment of principal of or interest on any Note not
yet cured or a Default with respect to any covenant or provision which cannot
be modified or amended without the consent of the Holder of each outstanding
Note affected. Subject to the provisions of this Indenture relating to the
duties of the Trustee, the Trustee will be under no obligation to exercise any
of its rights or powers under the Indenture at the request, order or direction
of any of the Holders, unless such Holders have offered to the Trustee
reasonable security or indemnity.
SECTION 6.05 CONTROL BY MAJORITY
Subject to the provisions of this Indenture and applicable
law, Holders of a majority in aggregate principal amount of the Notes at the
time outstanding will 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.
SECTION 6.06 LIMITATION ON SUITS
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written
notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of
the then outstanding Notes make a written request to the Trustee to
pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and,
if requested, provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request within
60 days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
73
81
(e) during such 60-day period the Holders of a majority
in aggregate principal amount of the then outstanding Notes do not
give the Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of
another Holder of a Note or to obtain a preference or priority over another
Holder of a Note.
SECTION 6.07 RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal, premium and
Liquidated Damages, if any, and interest on the Note, on or after the
respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08 COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01 occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Issuer for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Notes and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and the Holders of the Notes allowed in any judicial proceedings relative to
the Issuer (or any other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and distribute any
money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 7.07 hereof. To the extent that
the payment of any such compensation,
74
82
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.07 hereof out of the
estate in any such proceeding, shall be denied for any reason, payment of the
same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding whether in liquidation or
under any plan of reorganization or arrangement or otherwise. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10 PRIORITIES
If the Trustee collects any money pursuant to this Article, it
shall pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation, expense
and liabilities incurred, and all advances made, by the Trustee and the costs
and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if any and
interest, respectively; and
Third: to the Issuer or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Notes 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 a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
75
83
Trustee, a suit by a Holder of a Note pursuant to Section 6.07 hereof, or a
suit by Holders of more than 10% in principal amount of the then outstanding
Notes.
ARTICLE 7
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE
(a) If 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 use the same degree of care and skill in its
exercise, as a prudent Person would exercise or use under the circumstances in
the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) 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 required to be furnished to the Trustee by this Indenture and
conforming to the requirements of this Indenture, but in the case of
any such certificates or opinions 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 (but need
not confirm or investigate the accuracy of mathematical calculations
or other facts stated therein).
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this clause (c) does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
76
84
(iii) 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 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs 7.01 and 7.02.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability. The Trustee
shall be under no obligation to exercise any of its rights and powers under
this Indenture at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to it against any
loss, liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Issuer. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.02 RIGHTS OF TRUSTEE
(a) The Trustee may conclusively rely upon any document
believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officer's Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officer's Certificate or Opinion of Counsel. The
Trustee may consult with counsel of its selection and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(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 it
takes or omits to take in good faith that it believes to be authorized or
within the rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Issuer shall be
sufficient if signed by an Officer of the Issuer.
77
85
(f) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction.
(g) Except with respect to Section 4.01 herein, the
Trustee shall have no duty to inquire as to the performance of the Issuer's
covenants in Article 4 hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Sections 6.01(1), 6.01(2) and 4.01 or (ii) any
Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
(h) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee may, in its discretion, make such further inquiry or
investigation into such facts or matters as it may see fit and if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer personally or
by agent or attorney at the sole cost of the Issuer and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and the right of the Trustee to be indemnified
shall be extended to and shall be enforceable by each of the Trustee's agents.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Issuer or any
Affiliate of the Issuer with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
78
86
SECTION 7.04 TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes,
it shall not be accountable for the Issuer's use of the proceeds from the Notes
or any money paid to the Issuer or upon the Issuer's direction under any
provision of this Indenture, 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 or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Indenture other than its certificate of
authentication.
SECTION 7.05 NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and
if it is known to the Trustee, the Trustee shall mail to Holders of Notes a
notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may withhold the notice
if and so long as a committee of its Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES
Within 60 days after each May 15 beginning with the May 15
following the date of this Indenture, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if
no event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section
313(c).
A copy of each report at the time of its mailing to the
Holders of Notes shall be mailed to the Issuer and filed with the SEC and each
stock exchange on which the Notes are listed in accordance with TIA Section
313(d). The Issuer shall promptly notify the Trustee when the Notes are listed
on any stock exchange or any delisting thereof.
SECTION 7.07 COMPENSATION AND INDEMNITY
The Issuer shall pay to the Trustee from time to time such
compensation as the Issuer and the Trustee shall agree in writing from time to
time for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The
79
87
Issuer shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Issuer shall indemnify the Trustee against any and all
losses, damages, claims, liabilities or expenses (including of reasonable
attorneys' fees and expenses) incurred by it arising out of or in connection
with the acceptance or administration of its duties under this Indenture,
including the costs and expenses of enforcing this Indenture against the Issuer
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Issuer or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith or willful misconduct. The Trustee
shall notify the Issuer promptly of any claim for which it may seek indemnity.
Failure by the Trustee to so notify the Issuer shall not relieve the Issuer of
its obligations hereunder. The Issuer shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The obligations of the Issuer under this Section 7.07 shall
survive the satisfaction and discharge of this Indenture.
To secure the Issuer's payment obligations in this Section,
the Trustee shall have a Lien prior to the Notes on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(4) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its
agents and counsel) are intended to constitute expenses of administration under
any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08 REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
80
88
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Issuer. The
Holders of Notes of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Issuer in
writing. The Issuer may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(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 Custodian or 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 Issuer shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in aggregate principal amount of the then outstanding
Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Issuer.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuer, or the Holders of Notes of at least 10% in aggregate principal amount
of the then outstanding Notes may petition, at the expense of the Issuer, any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a Note
who has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the
Trustee pursuant to this Section 7.08, the Issuer's obligations under Section
7.07 hereof shall continue for the benefit of the retiring Trustee.
81
89
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER
The Trustee is subject to TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01 OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Issuer may, at the option of its Board of Directors
evidenced by a resolution set forth in an Officer's Certificate, at any time,
elect to have either Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in this Article 8.
SECTION 8.02 LEGAL DEFEASANCE AND DISCHARGE
The Issuer may, at its option, elect to have its obligations
and the obligations of the Guarantors discharged with respect to the
outstanding Notes ("Legal Defeasance"). Such Legal Defeasance means that the
Issuer shall be deemed to have paid and discharged the entire Indebtedness
represented, and this Indenture shall cease to be of further effect as to all
outstanding Notes and Guarantees, except as to (i) the
82
90
rights of Holders to receive payments in respect of the principal of, premium,
if any, and interest (and Liquidated Damages, if any) on such Notes when such
payments are due from the trust funds; (ii) the Issuer's obligations with
respect to such Notes concerning issuing temporary Notes, registration of
Notes, mutilated, destroyed, lost or stolen Notes, and the maintenance of an
office or agency for payment and money for security payments held in trust;
(iii) rights, powers, trusts, duties and immunities of the Trustee, and the
Issuer's obligations in connection therewith and (iv) the Legal Defeasance
provisions under this Section 8.02.
SECTION 8.03 COVENANT DEFEASANCE
Upon the Issuer's exercise under Section 8.01 hereof of the
option applicable to this Section 8.03, the Issuer may, at its option and at
any time, elect to have the obligations of the Issuer and the Guarantors
released with respect to the covenants contained in Sections 4.07, 4.08, 4.09,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17 and 5.01 hereof with respect to
the outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance") and thereafter any omission to
comply with such obligations shall not constitute a Default or Event of Default
with respect to the Notes. In the event Covenant Defeasance occurs, certain
events (not including non-payment, guarantees, bankruptcy, receivership,
rehabilitation and insolvency events) described under Section 6.01 will no
longer constitute an Event of Default with respect to the Notes.
SECTION 8.04 CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Issuer must irrevocably deposit with
the Trustee, in trust, for the benefit of the Holders of the
Notes, U.S. legal tender, U.S. Government Obligations, or a
combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any,
and interest on such Notes on the stated date for payment
thereof or on the redemption date of such principal of,
premium, if any, or interest on such Notes, and the Holders of
the Notes must have a valid, perfected, exclusive security
interest on such trust;
83
91
(b) in the case of Legal Defeasance, the
Issuer shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the
Trustee confirming that (A) the Issuer has received from, or
there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been
a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such Opinion of
Counsel 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 Legal Defeasance and
will be subject to Federal income tax on the same amounts, in
the same manner and at the same times as would have been the
case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the
Issuer shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the
Trustee confirming 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
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit;
(e) such Legal Defeasance or Covenant
Defeasance shall not result in a breach or violation of, or
constitute a Default under this Indenture or any other
material agreement or instrument to which the Issuer or any of
its Subsidiaries is a party or by which the Issuer or any of
its Subsidiaries is bound;
(f) the Issuer shall have delivered to the
Trustee an Officer's Certificate stating that the deposit was
not made by the Issuer with the intent of preferring the
Holders of such Notes over any other creditors of the Issuer
or with the intent of defeating, hindering,
84
92
delaying or defrauding any other creditors of the Issuer or
others; and
(g) the Issuer shall have delivered to the
Trustee an Officer's Certificate and an Opinion of Counsel,
each stating that the conditions precedent provided for in, in
the case of the Officer's Certificate, (a) through (g) and, in
the case of the Opinion of Counsel, clauses (a) (with respect
to the validity and perfection of the trust), (b), (c) and (e)
of this paragraph relating to the Legal Defeasance or the
Covenant Defeasance, as applicable, have been complied with.
SECTION 8.05 DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof 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 (including the Issuer
acting as Paying Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the cash or
non-callable Government Securities deposited pursuant to Section 8.04 hereof or
the principal and interest received in respect thereof.
Anything in this Article 8 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time upon the
request of the Issuer any money or non-callable Government Securities held by
it as provided in Section 8.04 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
85
93
SECTION 8.06 REPAYMENT TO ISSUER
Any money deposited with the Trustee or any Paying Agent, or
then held by the Issuer, in trust for the payment of the principal of, premium,
if any, Liquidated Damages, or interest on any Note and remaining unclaimed for
two years after such principal, and premium, if any, Liquidated Damages, if
any, or interest has become due and payable shall be paid to the Issuer on its
written request or (if then held by the Issuer) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as a secured creditor,
look only to the Issuer for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the
Issuer as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuer cause to be published once, in The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such notification or publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.
SECTION 8.07 REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any U.S.
legal tender or U.S. obligation obligating in accordance with Section 8.02 or
8.03 hereof, as the case may be, by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Issuer's obligations under this Indenture and the
Notes shall be revived and reinstated as though no defeasance had occurred.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01 WITHOUT CONSENT OF HOLDERS OF NOTES
Notwithstanding Section 9.02 of this Indenture, the Issuer and
the Trustee may amend or supplement this Indenture or the Notes without the
consent of any Holder of a Note and the Guarantors and the Trustee may amend or
supplement any Guarantee:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or
in place of certificated Notes;
86
94
(c) to provide for the assumption of the Issuer's
obligations to the Holders of the Notes in the case of a merger or
consolidation pursuant to Article 5 hereof;
(d) to provide for additional Subsidiary Guarantors as
set forth in Section 4.15;
(e) to make any change that would provide any additional
rights or benefits to the Holders of the Notes (including the addition
of any Subsidiary Guarantors) or that does not adversely affect the
legal rights hereunder of any Holder of the Note;
(f) to comply with the provisions of the Depositary,
Euroclear or Cedel or the Trustee with respect to the provisions of
this Indenture or the Notes relating to transfers and exchanges of
Notes or beneficial interests in Notes; or
(g) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA.
Upon the request of the Issuer accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join with the Issuer in the
execution of any amended or supplemental Indenture authorized or permitted by
the terms of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental Indenture that adversely
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02 WITH CONSENT OF HOLDERS OF NOTES
Except as provided below in this Section 9.02, the Issuer, the
Guarantors and the Trustee may amend or supplement this Indenture (including
Sections 4.07 and 4.08 hereof) or any supplemental indenture or modify the
rights of the Holders of the Notes with the consent of not less than a majority
in aggregate principal amount of the Notes at the time outstanding; provided
that no such modification may, without the consent of Holders of at least 66
2/3% in aggregate principal amount of Notes at the time outstanding, modify the
provisions (including the defined terms used therein) of the covenant
"Repurchase of Notes at the Option of the Holder upon a Change of Control" in
a manner adverse to the Holders.
87
95
Upon the request of the Issuer accompanied by a resolution of
its Board of Directors authorizing the execution of any such amended or
supplemental Indenture, and upon the filing with the Trustee of evidence
satisfactory to the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Issuer in the execution of
such amended or supplemental Indenture unless such amended or supplemental
Indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.02 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Issuer shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Issuer to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof,
the Holders of a majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by the Issuer with
any provision of this Indenture or the Notes. However, without the consent of
each Holder affected (it being understood that Section 4.07 and 4.08 may be
amended in accordance with the first paragraph of Section 9.02), an amendment
or waiver may not (with respect to any Notes held by a non-consenting Holder):
(a) reduce the aggregate principal amount of Notes
whose Holders must consent to an amendment, supplement or
waiver;
(b) reduce the principal of or change the fixed final
stated maturity of any Note or alter or waive any of the
provisions with respect to the redemption of the Notes, except
as provided above with respect to Sections 4.07 and 4.08
hereof;
(c) reduce the rate of or change the time for payment
of interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the
payment of principal of, premium, if any, Liquidated Damages,
if any, or interest on the Notes (except a rescission of
acceleration of the Notes by the Holders of a majority in
aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such
acceleration);
88
96
(e) make any Note payable in money other than that
stated in the Notes;
(f) make any change in the provisions of this
Indenture relating to waivers of past Defaults or the rights
of Holders of Notes to receive payments of principal of or
interest on the Notes; or
(g) make any change in Section 6.04 or 6.07 hereof or
in the foregoing amendment and waiver provisions.
In addition, any amendment to the subordination provisions of
this Indenture will require the consent of the holders of Designated Senior
Debt if the amendment would adversely affect the holders of Designated Senior
Debt.
SECTION 9.03 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Notes
shall be set forth in a amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.04 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a 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 of a Note or subsequent
Holder of a Note may revoke the consent as to its Note if the Trustee receives
written notice of revocation before the date the waiver, supplement or
amendment becomes effective. An amendment, supplement or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
SECTION 9.05 NOTATION ON OR EXCHANGE OF NOTES
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter authenticated. The
Issuer in exchange for all Notes may issue and the Trustee shall authenticate
new Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not
89
97
affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Issuer may not sign an amendment until the Board of Directors approves it.
In executing any amended or supplemental Indenture, the Trustee shall be
entitled to receive and (subject to Section 7.01) shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel stating that
the execution of such amended or supplemental indenture is authorized or
permitted by this Indenture.
ARTICLE 10
SUBORDINATION
SECTION 10.01 AGREEMENT TO SUBORDINATE
The Issuer agrees, and each Holder by accepting a Note agrees,
that the Indebtedness evidenced by the Note is subordinated in right of
payment, to the extent and in the manner provided in this Article 10, to the
prior payment in full of all Senior Debt of the Issuer, the Parent and the
Subsidiary Guarantors, as applicable. This Article 10 shall constitute a
continuing offer to all Persons who become holders of, or continue to hold,
Senior Debt, and such provisions are made for the benefit of the holders of
Senior Debt.
SECTION 10.02 LIQUIDATION; DISSOLUTION; BANKRUPTCY
Upon any distribution of assets of the Issuer or any Guarantor
upon any dissolution, winding up, total or partial liquidation or
reorganization of the Issuer or a Guarantor, whether voluntary or involuntary,
in bankruptcy, insolvency, receivership or similar proceeding or upon
assignment for the benefit of creditors or any marshalling of the Issuer's or
Guarantors' assets and liabilities:
(1) holders of all Senior Debt of the Issuer or such
Guarantor, as applicable, shall first be entitled to receive payment
in full in cash or U.S. Legal Tender Equivalents or otherwise, to the
extent holders accept satisfaction of amounts due by settlement in
other than cash or U.S. Legal Tender Equivalents (or have such payment
duly provided for), before Holders shall be entitled to receive any
payment on account of any Obligation (and Claims, but only in the case
of Senior Debt under the New Credit Facility) in respect of the
90
98
Notes, including the principal of premium, if any, and interest on the
Notes (and Liquidated Damages pursuant to the Registration Rights
Agreement); and
(2) any payment or distribution of assets of the Issuer
or such Guarantor of any kind or character from any source, whether in
cash, property or securities (other than Junior Securities) to which
Holders or the Trustee on behalf of the Holders would be entitled (by
set-off or otherwise), except for the subordination provisions
contained in this Indenture, will be paid by the liquidating trustee
or agent or other Person making such a payment or distribution
directly to the holders of such Senior Debt or their representative to
the extent necessary to make payment in full in cash or Cash
Equivalents (or have such payment duly provided for) on all such
Senior Debt remaining unpaid, after giving effect to any concurrent
payment or distribution to the holders of such Senior Debt.
SECTION 10.03 DEFAULT ON DESIGNATED SENIOR DEBT
No payment (by set-off or otherwise) may be made by or on
behalf of the Issuer or a Guarantor, as applicable, on account of the principal
of, premium, if any, or interest on, the Notes (including any repurchases of
any of the Notes), or any Obligation (and Claim, but only in the case of Senior
Debt under the New Credit Facility) in respect of the Notes, including for cash
or property (other than Junior Securities, or on account of the redemption
provisions of the Notes (or Liquidated Damages), (i) upon the maturity of any
Senior Debt of the Issuer or such Guarantor by lapse of time, acceleration
(unless waived) or otherwise, unless and until all principal of, premium, if
any, and the interest on such Senior Debt (and in the case of Senior Debt under
the New Credit Facility, all other monetary obligations in respect thereof) are
first paid in full in cash or Cash Equivalents (or such payment is duly
provided for) or otherwise to the extent holders accept satisfaction of amounts
due by settlement in other than cash or Cash Equivalents, or (ii) in the event
of default in the payment of any principal of, premium, if any, or interest on
Senior Debt of the Issuer or such Guarantor (and, in the case of Senior Debt
under the New Credit Facility, any other monetary obligation in respect
thereof) when it becomes due and payable, whether at maturity, a scheduled
payment date, or at a date fixed for prepayment or by declaration or otherwise
(a "Payment Default"), unless and until such Payment Default has been cured or
waived or otherwise has ceased to exist.
Upon (i) the happening of an event of default (other than a
Payment Default) that permits the holders of Senior Debt (or a trustee or agent
on behalf of such holders) to declare such Senior Debt to be due and payable
(or, in the case of letters of credit, require cash collateralization thereof)
and (ii) written notice of such event of default being given to the Trustee by
the holders (or a trustee, agent or other
91
99
representative of such holders) of Designated Senior Debt (a "Payment Notice"),
then, unless and until such event of default has been cured or waived or
otherwise has ceased to exist, no payment by set-off or otherwise) may be made
by or on behalf of the Issuer or any Guarantor which is an obligor under such
Senior Debt on account of any Obligation (and Claims, but only in the case of
Senior Debt under the New Credit Facility) in respect of the Notes, including
the principal of, premium, if any, or interest on the Notes, or to repurchase
any of the Notes, or on account of the redemption provisions of the Notes, in
any such case, other than payments made with Junior Securities.
Notwithstanding the foregoing, unless the Senior Debt in respect of which such
event of default exists has been declared due and payable in its entirety
within 179 days after the Payment Notice is delivered as set forth above (the
"Payment Blockage Period") (and such declaration has not been rescinded or
waived), at the end of the Payment Blockage Period (but subject to the
preceding paragraphs and Section 10.05), the Issuer and the Guarantors shall be
required to pay all sums not paid to the Holders of the Notes during the
Payment Blockage Period due to the foregoing prohibitions and to resume all
other payments as and when due on the Notes. Any number of Payment Notices may
be given; provided, however, that (i) not more than one Payment Notice shall be
given within a period of any 360 consecutive days, and (ii) no default that
existed upon the date of such Payment Notice or the commencement of such
Payment Blockage Period (whether or not such event of default relates to the
same issue of Senior Debt) shall be made the basis for the commencement of any
other Payment Blockage Period unless such other Payment Blockage Period is
commenced by a Payment Notice from the representative under the New Credit
Facility and such event of default shall have been cured or waived for a period
of at least 90 consecutive days.
SECTION 10.04 ACCELERATION OF NOTES
If payment of the Notes is accelerated because of an Event of
Default, the Issuer shall promptly notify holders of Senior Debt of the
acceleration.
SECTION 10.05 WHEN DISTRIBUTION MUST BE PAID OVER
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Issuer or any Guarantor (other than Junior
Securities) shall be received by the Trustee or the Holders at a time when such
payment or distribution is prohibited by the provisions of this Article 10,
such payment or distribution shall be held in trust for the benefit of the
holders of such Senior Debt, and shall be paid or delivered by the Trustee or
such Holders, as the case may be, to, the holders of such Senior Debt remaining
unpaid (or unprovided for) or to their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any of such Senior Debt may have been issued, ratably according to
the aggregate principal amounts remaining unpaid on account of such
92
100
Senior Debt held or represented by each for application to the payment of all
such Senior Debt remaining unpaid to the extent necessary to pay all such
Senior Debt in full in cash or U.S. Legal Tender Equivalents after giving
effect to any concurrent payment or distribution to any concurrent payment or
distribution to the holders of such Senior Debt.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in this Article 10, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt, and shall not be liable to any
such holders if the Trustee shall pay over or distribute to or on behalf of
Holders or the Issuer or any other Person money or assets to which any holders
of Senior Debt shall be entitled by virtue of this Article 10, except if such
payment is made as a result of the willful misconduct or negligence of the
Trustee.
SECTION 10.06 NOTICE BY ISSUER
The Issuer shall promptly notify the Trustee and the Paying
Agent of any facts known to the Issuer that would cause a payment of any
Obligations with respect to the Notes to violate this Article 10, but failure
to give such notice shall not affect the subordination of the Notes to the
Senior Debt, as provided in this Article 10.
SECTION 10.07 SUBROGATION
After all Senior Debt is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and ratably with all other
Indebtedness pari passu with the Notes) to the rights of holders of Senior
Debt, to receive distributions applicable to Senior Debt, to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article 10 to holders of Senior
Debt, that otherwise would have been made to Holders is not, as between the
Issuer and Holders, a payment by the Issuer, on the Notes.
SECTION 10.08 RELATIVE RIGHTS
This Article 10 defines the relative rights of Holders and
holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Issuer and Holders, the
obligation of the Issuer, which is absolute and unconditional, to pay,
when due, principal of, premium, if any, and interest and Liquidated
Damages, if any, on the Notes in
93
101
accordance with their terms;
(2) affect the relative rights of Holders and creditors
of the Issuer other than their rights in relation to holders of Senior
Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon a Default or Event of Default, subject to the
rights of holders and owners of Senior Debt, to receive distributions
and payments otherwise payable to Holders.
If the Issuer fails because of this Article 10 to pay
principal of or interest on a Note on the due date, the failure is still a
Default or Event of Default.
SECTION 10.09 SUBORDINATION MAY NOT BE IMPAIRED BY ISSUER
No right of any holder of Senior Debt, to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Issuer or any Holder or by the failure of the
Issuer, or any Holder to comply with this Indenture.
SECTION 10.10 DISTRIBUTION OR NOTICE TO REPRESENTATIVE
Whenever a distribution is to be made or a notice given to
holders of Senior Debt, the distribution may be made and the notice given to
their Representative. The Issuer shall provide the Trustee with notice of the
name and address of any Representative. In the absence of such notice, the
Trustee may conclusively assume that no Representative exists.
Upon any payment or distribution of assets of the Issuer
referred to in this Article 10, the Trustee and the Holders shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the Holders
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other Indebtedness of the
Issuer, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article
10.
94
102
SECTION 10.11 RIGHTS OF TRUSTEE AND PAYING AGENT
Notwithstanding the provisions of this Article 10 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee, and the Trustee and the Paying Agent may continue
to make payments on the Notes, unless the Trustee shall have received at its
Corporate Trust Office at least five Business Days prior to the date of such
payment written notice of facts that would cause the payment of any Obligations
with respect to the Notes to violate this Article 10. Only the Issuer or a
Representative may give the notice. Nothing in this Article 10 shall impair
the claims of, or payments to, the Trustee under or pursuant to Section 7.07
hereof.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior Debt
(or a Representative on behalf of such holder) to establish that such notice
has been given by a holder of Senior Debt or a Representative on behalf of such
holder. In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person who is a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Debt held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment or until such time as the Trustee
shall be otherwise satisfied as to the right of such Person to receive such
payment.
The Trustee in its individual or any other capacity may hold
Senior Debt, with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights.
SECTION 10.12 AUTHORIZATION TO EFFECT SUBORDINATION
Each Holder of a Note by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination as provided
in this Article 10, and appoints the Trustee to act as the Holder's
attorney-in-fact for any and all such purposes. If the Trustee does not file a
proper proof of claim or proof of debt in the form required in any proceeding
referred to in Section 6.09 hereof at least 30 days before the expiration of
the time to file such claim, the Representative is hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Notes.
95
103
SECTION 10.13 AMENDMENTS
The provisions of this Article 10 shall not be amended or
modified in a manner materially adverse to the Holders of Senior Debt without
the written consent of the holders of all Senior Debt.
ARTICLE 11
GUARANTEES
SECTION 11.01 GUARANTEES
Subject to the provisions of this Article 11, each Guarantor,
jointly and severally, hereby unconditionally guarantees to each Holder of a
Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that: (a) the principal of, and premium, if any,
Liquidated Damages, if any, and interest on the Notes will be duly and
punctually paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on overdue principal of, and premium, if any,
Liquidated Damages, if any and (to the extent permitted by law) interest on any
interest, if any, on the Notes and all other obligations of the Issuer to the
Holders or the Trustee hereunder or under the Notes (including fees, expenses
or other) will be promptly paid in full or performed, all in accordance with
the terms hereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
Failing payment when due of any amount so guaranteed or failing performance of
any other obligation of the Issuer to the Holders, for whatever reason, each
Guarantor will be obligated to pay, or to perform or to cause the performance
of, the same immediately. An Event of Default under this Indenture or the
Notes shall constitute an event of default under this Guarantee, and shall
entitle the Holders of Notes to accelerate the obligations of each Guarantor
hereunder in the same manner and to the same extent as the obligations of the
Issuer. Each Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
the Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any thereof, the
entry of any judgment against the Issuer, any action to enforce the same or any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives and
relinquishes: (a) any right to require the Trustee, the Holders or the Issuer
(each, a "Benefitted Party") to proceed against the Issuer or any other Person
or to proceed against or exhaust any security held by a Benefitted Party at any
time or to pursue any other remedy in any secured party's power before
proceeding against the Guarantors; (b) any
96
104
defense that may arise by reason of the incapacity, lack of authority, death or
disability of any other Person or Persons or the failure of a Benefitted Party
to file or enforce a claim against the estate (in administration, bankruptcy or
any other proceeding) of any other Person or Persons; (c) demand, protest and
notice of any kind (except as expressly required by this Indenture), including
but not limited to notice of the existence, creation or incurring of any new or
additional Indebtedness or obligation or of any action or non-action on the
part of the Guarantors, the Issuer, any Benefitted Party, any creditor of the
Guarantors, the Issuer or the Subsidiaries or on the part of any other Person
whomsoever in connection with any obligations the performance of which are
hereby guaranteed; (d) any defense based upon an election of remedies by a
Benefitted Party, including but not limited to an election to proceed against
the Guarantors for reimbursement; (e) any defense based upon any statute or
rule of law which provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than that of the
principal; (f) any defense arising because of a Benefitted Party's election, in
any proceeding instituted under the Bankruptcy Law, of the application of
Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any
borrowing or grant of a security interest under Section 364 of the Bankruptcy
Code. The Guarantors hereby covenant that the Guarantee will not be discharged
except by payment in full of all principal, premium, if any, Liquidated
Damages, if any, and interest on the Notes and all other costs provided for
under this Indenture, or as provided in Section 8.01.
If any Holder or the Trustee is required by any court or
otherwise to return to either the Issuer or the Guarantors, or any trustee or
similar official acting in relation to either the Issuer or the Guarantors, any
amount paid by the Issuer or the Guarantors to the Trustee or such Holder, the
Guarantees, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each of the Guarantors agrees that it will not be entitled
to any right of subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all obligations
guaranteed hereby. Each Guarantor agrees that, as between it, on the one hand,
and the Holders of Notes and the Trustee, on the other hand, (x) the maturity
of the obligations guaranteed hereby may be accelerated as provided in Article
6 hereof for the purposes hereof, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article 6 hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by such Guarantor for the
purpose of the Guarantee.
97
105
SECTION 11.02 EXECUTION AND DELIVERY OF GUARANTEES
To evidence the Guarantees set forth in Section 11.01 hereof,
each of the Guarantors agrees that a notation of the Guarantees substantially
in the form included in Exhibit B shall be endorsed on each Note authenticated
and delivered by the Trustee and that this Indenture shall be executed on
behalf of the Guarantors by the Chairman of the Board, any Vice Chairman, the
President or one of the Vice Presidents of the Guarantors.
Each of the Guarantors agree that the Guarantees set forth in
this Article 11 will remain in full force and effect and apply to all the Notes
notwithstanding any failure to endorse on each Note a notation of the
Guarantees.
If an Officer whose facsimile signature is on a Note no longer
holds that office at the time the Trustee authenticates the Note on which the
Guarantees are endorsed, the Guarantees shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantees set forth in this Indenture on behalf of the Guarantors.
SECTION 11.03 GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS
(a) Nothing contained in this Indenture or in the Notes
shall prevent any consolidation or merger of a Guarantor with or into the
Issuer or another Guarantor, or shall prevent the transfer of all or
substantially all of the assets of a Guarantor to the Issuer or another
Guarantor. Upon any such consolidation, merger, transfer or sale, the
Guarantee of such Guarantor shall no longer have any force or effect.
(b) No Subsidiary Guarantor shall consolidate or merge
with or into a corporation or corporations other than the Issuer or another
Guarantor, except pursuant to the provisions of Section 4.16 hereof.
(c) The Trustee, subject to the provisions of Section
11.04 hereof, shall be entitled to receive an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any such consolidation, merger,
sale or conveyance, and any such assumption of Obligations, comply with the
provisions of this Section 11.03. Such certificate and opinion shall comply
with the provisions of Section 11.05.
98
106
SECTION 11.04 RELEASES FOLLOWING SALE OF ASSETS
Concurrently with any sale of assets (including, if
applicable, all of the Capital Stock of any Guarantor other than the Parent),
any Liens in favor of the Trustee in the assets sold thereby shall be released;
provided that in the event of an Asset Sale, the Net Proceeds from such sale or
other disposition are treated in accordance with the provisions of Section 4.08
hereof. If the assets sold in such sale or other disposition include all or
substantially all of the assets of any Guarantor or all of the Capital Stock of
any Guarantor in each case, in compliance with the terms hereof, then such
Guarantor (in the event of a sale or other disposition of all of the Capital
Stock of such Guarantor) or the corporation acquiring the property (in the
event of a sale or other disposition of all or substantially all of the assets
of such Guarantor) shall be released from and relieved of its obligations under
its Guarantee or Section 11.03 hereof as the case may be; provided that in the
event of an Asset Sale, the Net Proceeds from such sale or other disposition
are treated in accordance with the provisions of Section 4.08 hereof. Upon
delivery by the Issuer to the Trustee of an Officer's Certificate and Opinion
of Counsel, and to the effect that such sale or other disposition was made by
the Issuer in accordance with the provisions of this Indenture, including
without limitation Section 4.08 hereof, the Trustee shall execute any documents
reasonably required in order to evidence the release of any such Guarantor from
its obligations under its Guarantee. Any Guarantor not released from its
obligations under its Guarantee shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article 11.
SECTION 11.05 LIMITATION OF GUARANTOR'S LIABILITY
Each Guarantor, and by its acceptance hereof each Holder,
hereby confirms that it is the intention of all such parties that the guarantee
by such Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law. To effectuate the foregoing intention, the Holders and
such Guarantor hereby irrevocably agree that the obligations of such Guarantor
under this Article 11 shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article 11, result in the obligations of such Guarantor
under the Guarantee of such Guarantor not constituting a fraudulent transfer or
conveyance.
99
107
SECTION 11.06 APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTOR
(a) For purposes of any provision of this Indenture which
provides for the delivery by any Guarantor of an Officer's Certificate and/or
an Opinion of Counsel, the definitions of such terms in Section 1.01 shall
apply to such Guarantor as if references therein to the Issuer were references
to such Guarantor.
(b) Any request, direction, order or demand which by any
provision of this Indenture is to be made by any Guarantor, shall be sufficient
if evidenced as described in Section 12.02 as if references therein to the
Issuer were references to such Guarantor.
(c) Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the holders of Notes to or on any Guarantor may be given or served as described
in Section 12.02 as if references therein to Issuer were references to such
Guarantor.
(d) Upon any demand, request or application by any
Guarantor to the Trustee to take any action under this Indenture, such
Guarantor shall furnish to the Trustee such certificates and opinions as are
required in Section 11.04 hereof as if all references therein to the Issuer
were references to such Guarantor.
SECTION 11.07 SUBORDINATION OF GUARANTEES
The Obligations of each Guarantor under its Guarantee pursuant
to this Article 11 shall be subordinated in right of payment to all Senior Debt
of the Parent or the Subsidiary Guarantor, as applicable, including the
indebtedness under the New Credit Facility. The Subsidiary Guarantees will
rank pari passu in right of payment with all current and future senior
subordinated Indebtedness of the Guarantors, including the guarantees by the
Subsidiary Guarantors of obligations under the 9 1/8% Senior Subordinated Notes
and the Parent's obligations under the Parent Convertible Notes. For the
purposes of the foregoing sentence, (a) each Guarantor may make, and the
Trustee and the Holders of the Notes shall have the right to receive and/or
retain, payments by any of the Guarantors only at such times as they may
receive and/or retain payments in respect of the Notes pursuant to this
Indenture, including Article 10 hereof, and (b) the rights and obligations of
the relevant parties relative to the Guarantees and the Senior Debt shall be
the same as their respective rights and obligations relative to the Notes and
Senior Debt of the Issuer pursuant to Article 10.
Each Holder of a Note by its acceptance thereof (a) agrees to
and shall be bound by the provisions of this Section 10.07, (b) authorize and
directs the Trustee on the Holder's behalf to take such action as shall be
necessary and appropriate to
100
108
effectuate the subordination so provided, and (c) appoints the Trustee as the
Holder's attorney-in-fact for any and all such purposes.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by TIA Section 318(c), the imposed duties
shall control.
SECTION 12.02 NOTICES
Any notice or communication by the Issuer or the Trustee to
the others is duly given if in writing and delivered in Person or mailed by
first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Issuer:
CEX Holdings, Inc.
1 Environmental Way
Broomfield, Colorado 85021
Telecopier No.: (303) 664-3823
Attention: Chief Financial Officer
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York 10286
Telecopier No.: (212) 815-5915
Attention: Corporate Trust Administration
The Issuer or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to
Holders) shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; if telecopied; and the next Business Day after
timely delivery to the courier, if sent by overnight air courier guaranteeing
next day delivery.
101
109
Any notice or communication to a Holder shall be mailed by
first class mail, certified or registered, return receipt requested, or by
overnight air courier guaranteeing next day delivery to its address shown on
the register kept by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to the extent
required by the TIA. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the
addressee receives it.
If the Issuer mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 12.03 COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the Notes.
The Issuer, the Trustee, the Registrar and anyone else 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 Issuer to the Trustee
to take any action under this Indenture, the Issuer shall furnish to the
Trustee:
(a) an Officer's Certificate in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of the signer, all conditions precedent and covenants, if any,
provided for in this Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall include the
statements set forth in Section 12.05 hereof) stating that, in the
opinion of such counsel, all such conditions precedent and covenants
have been satisfied; provided, that no such Opinion of Counsel shall
be required on the Issue Date.
102
110
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 (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions
of TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been satisfied.
SECTION 12.06 RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 12.07 NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS
No past, present or future director, officer, employee,
incorporator or stockholder of the Issuer, as such, shall have any liability
for any obligations of the Issuer under the Notes, this Indenture 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. The waiver and release are part of the consideration for issuance
of the Notes.
SECTION 12.08 GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES.
103
111
SECTION 12.09 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Issuer or its Subsidiaries or of any
other Person. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 12.10 SUCCESSORS
All agreements of the Issuer in this Indenture and the Notes
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 12.11 SEVERABILITY
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 12.12 COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
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 of this Indenture and shall
in no way modify or restrict any of the terms or provisions hereof.
[Signatures on following pages]
104
112
SIGNATURES
Dated as of May 29, 1998 CEX HOLDINGS, INC.
Attest: By: /s/ Gary M. Jacobs
-------------------------------
Name: Gary M. Jacobs
Title: Executive Vice President
/s/ Kyle M. Hall
- ---------------------
Name: Kyle M. Hall
Title: Assistant Secretary
CORPORATE EXPRESS, INC.
Attest: By: /s/ Gary M. Jacobs
-------------------------------
Name: Gary M. Jacobs
Title: Executive Vice President
/s/ Kyle M. Hall
- ---------------------
Name: Kyle M. Hall
Title: Assistant Secretary
ASAP SOFTWARE EXPRESS, INC.
CORPORATE EXPRESS CALLCENTER
SERVICES, INC.
SOFCO-MEAD, INC.
SQP, INC.
SOFCO OF OHIO, INC.
S&O PROPERTY, INC.
EPCO PACKAGING SERVICES, INC.
HERMANN MARKETING, INC.
DISTRIBUTION RESOURCES CO.
CORPORATE EXPRESS REAL ESTATE, INC.
CORPORATE EXPRESS OF THE EAST, INC.
CORPORATE EXPRESS OF TEXAS, INC.
FEDERAL SALES SERVICE, INC.
VIRGINIA IMPRESSIONS PRODUCTS CO., INC
MICROMAGNETIC SYSTEMS, INC.
CORPORATE EXPRESS DELIVERY
SYSTEMS, INC.
AMERICAN DELIVERY SYSTEM, INC.
CORPORATE EXPRESS DISTRIBUTION
SERVICES, INC.
NEW DELAWARE DELIVERY, INC.
105
113
RED ARROW CORPORATION
RAC, INC.
RED ARROW SPOTTING SERVICES, INC.
RED ARROW TRUCKING CO.
RED ARROW WAREHOUSING, CO.
RUSH TRUCKING, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
INTERMOUNTAIN, INC.
CORPORATE EXPRESS DELIVERY LEASING -
INTERMOUNTAIN, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
MID-ATLANTIC, INC.
CORPORATE EXPRESS DELIVERY LEASING -
MID-ATLANTIC, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
MID-WEST, INC.
CORPORATE EXPRESS DELIVERY LEASING -
MID-WEST, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
NEW ENGLAND, INC.
CORPORATE EXPRESS DELIVERY LEASING -
NEW ENGLAND, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
NORTHEAST, INC.
CORPORATE EXPRESS DELIVERY LEASING -
NORTHEAST, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
SOUTHEAST, INC.
CORPORATE EXPRESS DELIVERY LEASING -
SOUTHEAST, INC.
AIR COURIER DISPATCH OF
NEW JERSEY, INC.
SUNBELT COURIER, INC.
TRICOR AMERICA, INC.
MIDNITE EXPRESS INTERNATIONAL
COURIER, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
SOUTHWEST, INC.
CORPORATE EXPRESS DELIVERY LEASING -
SOUTHWEST, INC.
106
114
CORPORATE EXPRESS DELIVERY SYSTEMS -
WEST COAST, INC.
CORPORATE EXPRESS DELIVERY LEASING -
WEST COAST, INC.
CORPORATE EXPRESS DELIVERY SYSTEMS -
EXPEDITED, INC.
CORPORATE EXPRESS DELIVERY LEASING -
EXPEDITED, INC.
CORPORATE EXPRESS DELIVERY
ADMINISTRATION, INC.
CORPORATE EXPRESS DELIVERY
MANAGEMENT BUSINESS TRUST
By: /s/ Gary M. Jacobs
------------------------------------
Name: Gary M. Jacobs
Title: Vice President
107
115
THE BANK OF NEW YORK, as Trustee
By: /s/ Walter N. Gitlin
----------------------------
Name: Walter N. Gitlin
Title: Vice President
(SEAL)
108
116
EXHIBIT A (144A)
(Face of Note) Reg. S)
CUSIP No.: (ISIN)
9 5/8% [Series A] [Series B] Senior Subordinated Notes due 2008
No. $350,000,000
CEX HOLDINGS, INC.
promises to pay to
or registered assigns,
the principal sum of
Dollars on June 1, 2008
Interest Payment Dates: June 1 and December 1
Record Dates: May 15 and November 15
Dated: May 29, 1998
CEX HOLDINGS, INC.
By:
----------------------------
Name:
Title:
By:
----------------------------
Name:
Title:
(SEAL)
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
The Bank of New York, as Trustee
By:
----------------------------
Authorized Signatory
A-1
117
(Back of Note)
9 5/8% [Series A] [Series B] Senior Subordinated Notes due 2008
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL NOTE
MAY BE EXCHANGE IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY.(1)
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or such other name as may be requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as may be requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.(1)
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER: (1) REPRESENTS THAT (I) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
OR (II) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE
- -------------
(1) These paragraphs should be included only if the Note is issued in global
form.
A-2
118
SECURITIES ACT (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (I) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS
A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
THE SECURITIES ACT, (IV) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144 UNDER THE SECURITIES ACT, (V) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY) OR
(VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING.
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. Interest. CEX Holdings, Inc., a Colorado corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 9
5/8% per annum from May 29, 1998 until maturity and shall pay the Liquidated
Damages, if any, payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually on June 1 and December 1 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to
A-3
119
on the face hereof and the next succeeding Interest Payment Date, interest
shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be December 1, 1998. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time
to time on demand at a rate that is 1% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time
to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) and Liquidated Damages, if any, to the
Persons who are registered Holders of Notes at the close of business on the May
15 or November 15 next preceding the Interest Payment Date, even if such Notes
are cancelled after such record date and on or before such Interest Payment
Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. The Notes will be payable as to principal, premium,
interest and Liquidated Damages, if any, at the office or agency of the Company
maintained for such purpose within or without the City and State of New York,
or, at the option of the Company, payment of interest and Liquidated Damages,
if any, may be made by check mailed to the Holders at their addresses set forth
in the register of Holders, and provided that payment by wire transfer of
immediately available funds will be required with respect to principal of,
interest, premium and Liquidated Damages, if any, on all Global Notes and all
other Notes the Holders of which shall have provided written wire transfer
instructions to the Company or the Paying Agent at least 15 days before the
relevant payment. Such payment shall be 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.
3. Paying Agent and Registrar. Initially, The Bank of New
York, the Trustee under the Indenture, will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of May 29, 1998 ("Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code Sections 77aaa-77bbbb). The Notes are subject
to all such terms, and Holders are referred to the Indenture and such Act for a
statement of such terms. The Notes are unsecured obligations of the Company
limited to $550,000,000 (of which $350,000,000 will be issued as of May 29,
1998) in aggregate principal amount.
A-4
120
5. Optional Redemption.
(a) Except as set forth in clause (b) of this Section of this
Note, the Company shall not have the option to redeem the Notes prior to June
1, 2003. Thereafter, the Company shall have the option to redeem the Notes, in
whole or in part, at the redemption prices (expressed as percentages of
principal amount) set forth below plus accrued and unpaid interest and
Liquidated Damages, if any, thereon, to the applicable redemption date, if
redeemed during the twelve-month period beginning on June 1 of the years
indicated below:
YEAR PERCENTAGE
---- ----------
2003 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104.813%
2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103.208%
2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101.604%
2006 and thereafter . . . . . . . . . . . . . . . . . . . . . . . . . . . 100.000%
(b) Notwithstanding the provisions of clause (a) of this
Section 3.07, at any time prior to June 1, 2001, the Issuer may, on one or more
occasions, redeem up to an aggregate of 35% of the aggregate principal amount
of Notes issued under the Indenture at a redemption price equal to 109.625% of
the principal amount thereof, (subject to the right of Holders of record on a
Record Date to receive interest due on an Interest Payment Date that is on or
prior to such Redemption Date) together with accrued and unpaid interest and
Liquidated Damages, if any, to the date of redemption, with cash from the Net
Cash Proceeds to the Issuer of one or more Public Equity Offerings; provided
that at least 65% of the aggregate principal amount of the Notes issued under
the Indenture remain outstanding immediately after the occurrence of such
redemption; provided, further, that such notice of redemption shall be sent
within 30 days after the date of the closing of any such Public Equity
Offering and such redemption date shall occur within 60 days after such notice
has been sent.
(c) Notice of redemption will be mailed at least 30 days but
not more than 60 days before the redemption date to each Holder whose Notes are
to be redeemed at its registered address. Notes in denominations larger than
$1,000 may be redeemed in part but only in integral multiples of $1,000, unless
all of the Notes held by a Holder are to be redeemed. On and after the
redemption date interest ceases to accrue on Notes or portions thereof called
for redemption unless the Company defaults in such payments due on the
redemption date.
A-5
121
6. Mandatory Redemption.
The Company shall not be required to make mandatory redemption
payments with respect to the Notes.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control (subject
to the provisions of the immediately succeeding paragraph), each Holder of
Notes shall have the right, at such Holder's option, pursuant to an offer
(subject only to conditions required by applicable law, if any) by the Company
(the "Change of Control Offer"), to require the Company to repurchase all or
any part of such Holder's Notes (provided, that the principal amount of such
Notes must be $1,000 or an integral multiple thereof) on a date (the "Change of
Control Purchase Date") that shall be no later than 40 Business Days after the
occurrence of such Change of Control, at a cash price (the "Change of Control
Purchase Price") equal to 101% of the principal amount thereof together with
accrued and unpaid interest and Liquidated Damages, if any, to the Change of
Control Purchase Date. The Change of Control Offer shall be made within 35
days following a Change of Control and shall remain open for 20 Business Days
following its commencement or such longer period as may be required by
applicable law (the "Change of Control Offer Period").
If a New Credit Facility is in effect, or any amounts are
owing thereunder, at the time of the occurrence of a Change of Control, prior
to the mailing of the notice to Holders described in the preceding paragraph,
but in any event within thirty days following any Change of Control, the
Company shall (i) repay in full all Obligations under the New Credit Facility
or offer to repay in full all Obligations under the New Credit Facility and
repay the Obligations under the New Credit Facility of each lender who has
accepted such offer or (ii) obtain the requisite consent under the New Credit
Facility to permit the repurchase of Notes as described above. The Company
must first comply with the covenant described in the preceding sentence before
it shall be required to purchase Notes in the event of a Change of Control;
provided that the Company's failure to comply with the covenant described in
the preceding sentence shall constitute an Event of Default described in clause
(iii) under "Events of Default" if not cured within thirty days after the
notice required by such clause. As a result of the foregoing, a Holder of the
Notes may not be able to compel the Company to purchase the Notes unless the
Company is able at the time to refinance all of the New Credit Facility or
obtain requisite consents under the New Credit Facility.
On or before the Change of Control Purchase Date, the Company
shall (1) accept for payment Notes or portions thereof properly tendered
pursuant to the Change of Control Offer, (2) deposit with the Paying Agent cash
sufficient to pay the Change of Control Purchase Price (together with accrued
and unpaid interest and Liquidated Damages, if any) of all Notes so tendered
and (3) deliver to the Trustee Notes so accepted an Officers' Certificate
listing the Notes or portions thereof being purchased by the Company. The
Paying Agent shall promptly pay the Holders of
A-6
122
Notes so accepted an amount equal to the Change of Control Purchase Price
(together with accrued and unpaid interest and Liquidated Damages, if any), and
the Trustee promptly shall authenticate and deliver to such Holders a new Note
equal in principal amount to any unpurchased portion of the Notes surrendered.
The Company shall publicly announce the results of the Change of Control Offer
on or as soon as practicable after the Change of Control Purchase Date.
Any Change of Control Offer will be made in compliance with
all applicable laws, rules and regulations, including, if applicable,
Regulation 14E under the Exchange Act and the rules thereunder and all other
applicable Federal and state securities laws. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this covenant, compliance by the Company or any of the Guarantors with such
laws and regulations shall not in and of itself cause a breach of its
obligations under such covenant.
If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any
due on such Interest Payment Date) will be paid to the Person in whose name a
Note is registered at the close of business on such Record Date, and such
interest (and Liquidated Damages, if applicable) will not be payable to Holders
who tender the Notes pursuant to the Change of Control Offer.
(b) The Company and the Subsidiary Guarantors shall not,
and shall not permit any of their Subsidiaries to, in one or a series of
related transactions, convey, sell, transfer, assign or otherwise dispose of,
directly or indirectly, any of its property, business or assets, including by
merger or consolidation (in the case of a Subsidiary of the Company), and
including any sale or other transfer or issuance of any Equity Interests of any
Subsidiary of the Company, whether by the Company or a Subsidiary of either or
through the issuance, sale or transfer of any Equity Interest by a Subsidiary
of the Company (any of the foregoing an "Asset Sale"), unless (1)(a) the Net
Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied (i) within
330 days after the date of each such Asset Sale, to the optional redemption of
the Notes in accordance with the terms of the Indenture and, at the Company's
option, other Indebtedness of the Company ranking on a parity with the Notes
from time to time outstanding with similar provisions requiring the Company to
make an offer to purchase or to redeem such Indebtedness with the proceeds from
asset sales, pro rata in proportion to the respective principal amounts (or
accreted values in the case of Indebtedness issued with an original issue
discount) of the Notes and such other Indebtedness then outstanding or (ii)
within 360 days after the date of each such Asset Sale, to the repurchase of
the Notes pursuant to a cash offer to repurchase Notes and, at the Company's
option, other Indebtedness of the Company ranking on a parity with the Notes
from time to time outstanding with similar provisions requiring the Company to
make an offer to purchase or to redeem such Indebtedness with the proceeds from
asset sales, pro rata in proportion to the respective principal amounts (or
accreted values in the case of Indebtedness issued with an original issue
discount) of the Notes and such other Indebtedness then outstanding (the "Asset
Sale Offer") at a purchase
A-7
123
price of 100% of principal amount (or accreted value in the case of
Indebtedness issued with an original issue discount) (the "Asset Sale Offer
Price") together with accrued and unpaid interest and Liquidated Damages, if
any, to the date of payment, made within 330 days of such Asset Sale, or (b)
within 330 days following such Asset Sale, the Asset Sale Offer Amount is (i)
used to make a Permitted Investment (other than pursuant to clause (i) thereof)
or otherwise invested (or committed, pursuant to a binding commitment subject
only to reasonable, customary closing conditions, to be invested, and in fact
is so invested, within an additional 90 days) in assets and property which in
the good faith reasonable judgment of the Company will immediately constitute
or be a part of a Related Business of the Company or such Subsidiary (if it
continues to be a Subsidiary) immediately following such transaction, except
that no proceeds from an Asset Sale of Existing Assets or assets acquired
(directly or indirectly) from the proceeds of an Asset Sale of Existing Assets
may be invested in or used to acquire assets or property for a Foreign
Subsidiary or (ii) used to retire Purchase Money Indebtedness or other Senior
Debt in accordance with any provisions therein requiring the Company to
repurchase, redeem, or otherwise retire such Indebtedness with the proceeds
from such Asset Sale, Indebtedness outstanding under the New Credit Facility
and, except with respect to the use of proceeds from the sale of Assets to Be
Disposed of, to permanently reduce (in the case of Senior Debt that is not
Purchase Money Indebtedness) the amount of such Indebtedness outstanding on the
Issue Date, any amount outstanding under New Credit Facility or Indebtedness
permitted pursuant to paragraph (c), (f) or (g) of Section 4.10 of the
Indenture (including that in the case of a revolver or similar arrangement that
makes credit available, such commitment is permanently so reduced by such
amount), except that no proceeds from an Asset Sale of Existing Assets or
assets acquired from the proceeds or Asset Sale of Existing Assets may be used
to retire Indebtedness of a Foreign Subsidiary (unless such Existing Assets
were assets of such Foreign Subsidiary on the Issue Date), (2) with respect to
any transaction or related series of transactions of securities, property or
assets with an aggregate fair market value in excess of $3,000,000, at least
75% of the consideration for such Asset Sale (excluding (a) Senior Debt assumed
by a transferee which assumption permanently reduces the amount of Indebtedness
outstanding on the Issue Date or permitted pursuant to paragraph (c), (f) or
(g) of Section 4.10 of the Indenture (including that in the case of a revolver
or similar arrangement that makes credit available, such commitment is
permanently so reduced by such amount), (b) Purchase Money Indebtedness assumed
by a transferee and (c) property that within 30 days of such Asset Sale is
converted into cash or Cash Equivalents) consists of Cash or Cash Equivalents
which is applied as set forth above or consists of Restricted Investments, (3)
no Default or Event of Default shall have occurred and be continuing at the
time of, or would occur after giving effect, on a pro forma basis, to, such
Asset Sale, and (4) the Company determines in good faith that the Company or
such Subsidiary, as applicable, receives fair market value for such Asset Sale.
Any Asset Sale Offer may be deferred until the accumulated Net
Cash Proceeds from Asset Sales not applied to the uses set forth in clauses
(1)(a)(i) or (b) above (the "Excess Proceeds") exceeds $20,000,000 each Asset
Sale Offer shall remain open for at least 20 Business Days following its
commencement (the "Asset Sale Offer
A-8
124
Period"). Upon expiration of the Asset Sale Offer Period, the Company shall
apply the Asset Sale Offer Amount plus an amount equal to accrued and unpaid
interest and Liquidated Damages, if any, to the purchase of all Indebtedness
properly tendered pursuant to the Asset Sale Offer (on a pro rata basis (in
$1,000 increments) if the Asset Sale Offer Amount is insufficient to purchase
all Indebtedness so tendered) at the Asset Sale Offer Price (together with
accrued interest and Liquidated Damages, if any). To the extent that the
aggregate amount of Indebtedness tendered pursuant to an Asset Sale Offer is
less than the Asset Sale Offer Amount, the Company may use any remaining Net
Cash Proceeds for general corporate purposes as otherwise permitted by the
Indenture and following each Asset Sale Offer the Excess Proceeds amount shall
be reset to zero.
Notwithstanding anything herein to the contrary, other than as
provided in the following sentence, the Issuer and its Subsidiaries may sell
(including by merger, consolidation or issuance), transfer, assign, license,
sublicense or otherwise dispose of (collectively "Transfer") any software,
trademark or other intellectual property, or any interest (including any Equity
Interest) in any entity which has as its principal assets such property or
rights, and such Transfer shall not be treated as an Asset Sale hereunder, if
(a) the Issuer and its Subsidiary Guarantors thereafter have unfettered access
to and use of such property or rights at a cost to the Issuer and its
Subsidiaries which is not in excess of the aggregate normal operating costs and
third party license fees which have been incurred by the Issuer and its
Subsidiaries prior to any such Transfer, and (b) any proceeds from any Transfer
of any such property, rights or interests (including Equity Interests) are used
(i) solely for the purpose of the development or installation or implementation
of such property or rights (or similar property or rights) or (ii) otherwise in
accordance with the provisions of the first paragraph of this covenant.
Notwithstanding the preceding sentence or any other provision of this Section
7(b) to the contrary, the Issuer and its Subsidiaries may not Transfer the
internally developed product distribution software used by the Issuer and its
Subsidiaries ("Core Operating Software") or intellectual property rights
therein or any interests (including any Equity Interests) in any entity which
has as its principal assets such Core Operating Software or rights therein,
unless the Issuer and its Subsidiary Guarantors comply with clauses (a) and (b)
of the preceding sentence in connection with such Transfer.
8. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Note or portion of a Note selected for
redemption, except for the unredeemed portion of any Note being redeemed in
part. Also, it need not exchange or register the transfer of any Notes for a
period of 15 days before the mailing of a notice of redemption of Notes to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
A-9
125
9. Persons Deemed Owners. The registered Holder of a Note
may be treated as its owner for all purposes.
10. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture or the Notes may be amended or supplemented with the
consent of the Holders of a majority in aggregate principal amount of the then
outstanding Notes, and any existing default or compliance with any provision of
the Indenture or the Notes may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Notes. Without
the consent of any Holder of a Note, the Indenture or the Notes may be amended
or supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Notes in addition to or in place of certificated Notes, to
provide for the assumption of the Company's obligations to Holders of the Notes
in case of a merger or consolidation, to make any change that would provide any
additional rights or benefits to the Holders of the Notes (including the
addition of any Subsidiary Guarantors) or that does not adversely affect the
legal rights under the Indenture of any such Holder, or to comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
11. Defaults and Remedies. Events of Default include: (i)
default for 30 days in the payment when due of interest on or Liquidated
Damages, if any, with respect to the Notes; (ii) default in payment when due of
principal of or premium, if any, on the Notes when the same becomes due and
payable at maturity, upon redemption by acceleration or otherwise, including
without limitation, payment of the Change of Control Purchase Price or the
Asset Sale Offer Price, or otherwise; (iii) failure by the Company for 45 days
after notice to the Company by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding to comply with certain
other agreements in the Indenture or the Notes; (iv) default under certain
other agreements relating to Indebtedness of the Company which default results
in the acceleration of such Indebtedness prior to its express maturity; (v)
certain nonappealable final judgments for the payment of money that remain
undischarged for a period of 60 days; or (vi) certain events of bankruptcy or
insolvency with respect to the Company or any of its Significant Subsidiaries.
If any Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in aggregate principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately by notice in writing to
the Company (and to the Trustee if given by the Holders) and the representative
of holders of Indebtedness under the New Credit Facility, if any amounts are
outstanding thereunder. Notwithstanding the foregoing, in the case of an Event
of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will (i) become due and payable without further action or
notice or (ii) if there are any amounts outstanding under the New Credit
Facility, become due and immediately payable upon the first to occur of an
acceleration under the New Credit Facility or five Business Days after receipt
by the Company and the representative of the holders of the Indebtedness under
the New Credit Facility of the Acceleration Notice, but only if an Event of
Default is then continuing. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. Subject to certain limitations, Holders
of a majority in aggregate principal amount of the then
A-10
126
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Holders of a majority in aggregate principal amount of the Notes then
outstanding by notice to the Trustee may on behalf of the Holders of all of the
Notes waive any existing Default or Event of Default and its consequences under
the Indenture, except a Default with respect to any provision requiring a
supermajority approval to amend, which Default may be waived only by such a
supermajority, and except a continuing Default or Event of Default in the
payment of interest on, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default or Event of Default, to deliver to the Trustee a statement specifying
such Default or Event of Default.
12. Subordination. The payment of principal of, premium,
if any, and interest on the Notes will be subordinated in right of payment to
the prior payment in full of Senior Debt as set forth in Article 10 of the
Indenture.
13. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, as such, past, present or future, of the
Company, the Guarantors or any successor entity, shall not have any personal
liability in respect of the obligations of the Company or the Guarantors under
the Notes or the Indenture solely by reason of his status as such stockholder,
employee, officer or director. Each Holder by accepting a Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
15. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating
Agent.
16. Abbreviations. Customary abbreviations may be used in
the name of a Holder or an assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
17. Additional Rights of Holders of Transfer Restricted
Securities. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transfer Restricted Securities (as defined in the
Registration Rights Agreement) shall have all the rights set forth in the
Registration Rights Agreement dated as of the date of the Indenture, between
the Company and the parties named on the signature pages thereof (the
"Registration Rights Agreement").
18. CUSIP Numbers. Pursuant to a recommendation promulgated
by the Committee on Uniform Security Identification Procedures, the Company has
caused
A-11
127
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is
made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
CEX Holdings, Inc.
1 Environmental Way
Broomfield, Colorado 80071
Telecopier No.: (303) 664-3823
Attention: Chief Financial Officer
A-12
128
GUARANTEE
The Guarantors listed below (hereinafter referred to as the
"Guarantors," which term includes any successor or assign under the Indenture
(the "Indenture") and any additional Guarantors), have irrevocably and
unconditionally guaranteed (i) the due and punctual payment of the principal
of, premium, if any, and interest on the 9 5/8% Senior Subordinated Notes due
2008 (the "Notes") of CEX Holdings, Inc., a Colorado corporation (the
"Company"), whether at stated maturity, by acceleration or otherwise, the due
and punctual payment of interest on the overdue principal, and premium if any,
and (to the extent permitted by law) interest on any interest, if any, on the
Notes, and the due and punctual performance of all other obligations of the
Company, to the Holders or the Trustee all in accordance with the terms set
forth in Article 11 of the Indenture, (ii) in case of any extension of time of
payment or renewal of any Notes or any such other obligations, that the same
will be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by acceleration
or otherwise, and (iii) the payment of any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder in
enforcing any rights under this Guarantee.
The obligations of each Guarantor to the Holder and to the
Trustee pursuant to this Guarantee and the Indenture are expressly set forth in
Article 11 of the Indenture and reference is hereby made to such Indenture for
the precise terms of this Guarantee.
No stockholder, officer, director or incorporator, as such,
past, present or future of each Guarantor shall have any liability under this
Guarantee by reason of his or its status as such stockholder, officer, director
or incorporator.
This is a continuing Guarantee and shall remain in full force
and effect and shall be binding upon each Guarantor and its successors and
assigns until full and final payment of all of the Company's obligations under
the Notes and Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Holders, and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights and privileges
herein conferred upon that party shall automatically extend to and be vested in
such transferee or assignee, all subject to the terms and conditions hereof.
This is a Guarantee of payment and not of collectibility.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Note upon which this
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized signatories.
The Obligations of each Guarantor under its Guarantee shall be
limited to the extent necessary to insure that it does not constitute a
fraudulent conveyance under applicable law.
The Guarantees pursuant to Article 11 of the Indenture shall be
A-13
129
subordinated in right of payment to all Senior Debt of the Parent or the
Subsidiary Guarantor, as applicable, including the indebtedness of the New
Credit Facility. The Subsidiary Guarantees will rank pari passu in right of
payment with all current and future senior subordinated Indebtedness of the
Guarantors, including the guarantees by the Subsidiary Guarantors of
Obligations under the 9 1/8% Senior Subordinated Notes and the Parent's
obligations under the Parent Convertible Notes. For the purposes of the
foregoing sentence, (a) each Guarantor may make, and the Trustee and the
Holders of the Notes shall have the right to receive and/or retain, payments by
any of the Guarantors only at such times as they may receive and/or retain
payments in respect of the Notes pursuant to the Indenture, including Article
10 thereof, and (b) the rights and obligations of the relevant parties relative
to the Guarantees and the Senior Debt shall be the same as their respective
rights and obligations relative to the Notes and Senior Debt of the Company
pursuant to Article 10 of the Indenture.
THE TERMS OF ARTICLE 11 OF THE INDENTURE ARE INCORPORATED
HEREIN BY REFERENCE.
Capitalized terms used herein have the same meanings given in
the Indenture unless otherwise indicated.
A-14
130
Guarantors:
Corporate Express, Inc.
By:
--------------------------------
Name:
Title:
ASAP Software Express, Inc.
Corporate Express CallCenter
Services, Inc.
Sofco-Mead, Inc.
SQP, Inc.
Sofco of Ohio, Inc.
S&O Property, Inc.
EPCO Packaging Services, Inc.
Hermann Marketing, Inc.
Distribution Resources Co.
Corporate Express Real Estate, Inc.
Corporate Express of the East, Inc.
Corporate Express of Texas, Inc.
Federal Sales Service, Inc.
Virginia Impressions Products Co.,
Inc.
MicroMagnetic Systems, Inc.
Corporate Express Delivery Systems,
Inc.
American Delivery System, Inc.
Corporate Express Distribution
Services, Inc.
New Delaware Delivery, Inc.
Red Arrow Corporation
RAC, Inc.
Red Arrow Spotting Services, Inc.
Red Arrow Trucking Co.
Red Arrow Warehousing, Co.
Rush Trucking, Inc.
Corporate Express Delivery Systems -
Intermountain, Inc.
Corporate Express Delivery Leasing -
Intermountain, Inc.
Corporate Express Delivery Systems -
Mid-Atlantic, Inc.
Corporate Express Delivery Leasing -
Mid-Atlantic, Inc.
A-15
131
Corporate Express Delivery Systems -
Mid-West, Inc.
Corporate Express Delivery Leasing -
Mid-West, Inc.
Corporate Express Delivery Systems -
New England, Inc.
Corporate Express Delivery Leasing -
New England, Inc.
Corporate Express Delivery Systems -
Northeast, Inc.
Corporate Express Delivery Leasing -
Northeast, Inc.
Corporate Express Delivery Systems -
Southeast, Inc.
Corporate Express Delivery Leasing -
Southeast, Inc.
Air Courier Dispatch of New Jersey,
Inc.
Sunbelt Courier, Inc.
Tricor America, Inc.
Midnite Express International
Courier, Inc.
Corporate Express Delivery Systems -
Southwest, Inc.
Corporate Express Delivery Leasing -
Southwest, Inc.
Corporate Express Delivery Systems -
West Coast, Inc.
Corporate Express Delivery Leasing -
West Coast, Inc.
Corporate Express Delivery Systems -
Expedited, Inc.
Corporate Express Delivery Leasing -
Expedited, Inc.
Corporate Express Delivery
Administration, Inc.
Corporate Express Delivery Management
Business Trust
By:
----------------------------------
Name:
Title:
A-16
132
Assignment Form
To assign this Note, fill in the form below: (I) or (we) assign and
transfer this Note to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-------------------------------------------------------
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 face of this Note)
Signature Guarantee.
A-17
133
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.07 or 4.08 of the Indenture, check the box below:
[ ] Section 4.07 [ ] Section 4.08
If you want to elect to have only part of the Note purchased by
the Company pursuant to Section 4.07 or Section 4.08 of the Indenture, state
the amount you elect to have purchased: $___________
Date:
--------------
Your Signature:
-----------------------------------
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
--------------------
Signature Guarantee.
A-18
134
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE(2)
The following exchanges of a part of this Global Note for
Definitive Notes have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Note authorized signatory
Principal Amount of Principal Amount of following such decrease of Trustee or Note
Date of Exchange this Global Note this Global Note (or increase) Custodian
------------------- ----------------------- ----------------------- ------------------------ -------------------
- ---------------------
(2) This should be included only if the Note is issued in global form.
A-19
135
EXHIBIT B
CERTIFICATE OF TRANSFER
CEX Holdings, Inc.
1 Environmental Way
Broomfield, Colorado 80021
Attention: President
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York
Attention: Corporate Trust Administration
Re: 9 5/8% Senior Subordinate Notes due 2008
Dear Sirs:
Reference is hereby made to the Indenture, dated as of May 29, 1998
(the "Indenture"), among CEX Holdings, Inc., as issuer (the "Company), the
Guarantors party thereto and The Bank of New York, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture. _____________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $________________ in such Note[s] or interests (the
"Transfer"), to ______________ (the "Transferee"), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby confers
that:
[CHECK ALL THAT APPLY]
1. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest of Definitive Note is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any State of the United States. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions
B-1
136
on transfer enumerated in the Private Placement Legend printed on the 144A
Global Note and/or the Definitive Note and in the Indenture and the Securities
Act.
2. [ ] CHECK IF THE TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby certifies that (i)the Transfer is not being made to a person
in the United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any Person
acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than a Initial
Purchaser) and the interest transferred will be held immediately thereafter
through Euroclear or Cedel. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Note will be subject to the restrictions on Transfer enumerated
in the Private Placement Legend printed on the Regulation S Global Note and/or
the Definitive Note and in the Indenture and the Securities Act.
3. [ ] CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN A DEFINITIVE NOTE PURSUANT TO ANY PROVISION OF THE
SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any State of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [ ] Such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act; or
(b) [ ] Such Transfer is being effected to the Company or a subsidiary
thereof; or
(c) [ ] Such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act; or
B-2
137
(d) [ ] Such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of
the exemption claimed, which certification is supported by (1) a certificate
executed by the Transferee in a form of Exhibit D to the Indenture and (2) if
such Transfer is in respect of a principal amount of Notes at the time of
transfer of less than $250,000, an Opinion of Counsel provided by the
Transferor or the Transferee (a copy of which the Transferor has attached to
this certification and provided to the Company, which has confirmed its
acceptability), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the Definitive Note will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Definitive Notes and in the Indenture and the Securities Act.
4. [ ] CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST
IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) [ ] Check if transfer is pursuant to Rule 144. (i) The Transfer is
being effected pursuant to an in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will no longer be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Notes, on Restricted Definitive Notes and in the Indenture.
B-3
138
(c) [ ] CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
B-4
139
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
----------------------------- Dated:
[Insert Name of Transferor] -------------------
By:
----------------------------
Name:
Title:
B-5
140
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ), or
-----------
(ii) [ ] Regulation S Global Note (CUSIP ), or
----------
(b) [ ] a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] 144A Global Note (CUSIP ), or
------------
(ii) [ ] Regulation S Global Note (CUSIP ), or
-----------
(iii) [ ] Unrestricted Global Note (CUSIP ); or
----------
(b) [ ] a Restricted Definitive Note; or
(c) [ ] an Unrestricted Definitive Note, in accordance with
the terms of the Indenture.
B-6
141
EXHIBIT C
CERTIFICATE OF EXCHANGE
Corporate Express, Inc.
1 Environmental Way
Broomfield, Colorado 80021
Attention: President
The Bank of New York
101 Barclay Street, Floor 21 West
New York, New York
Attention: Corporate Trust Administration
Re: 9 5/8% Senior Subordinated Notes due 2008
Dear Sirs:
Reference is hereby made to the Indenture, dated as of May 29,
1998 (the "Indenture"), between Corporate Express, Inc., as issuer (the
"Company"), the Subsidiary Guarantors party thereto and The Bank of New York,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
__________________________________(the "Owner") owns and
proposes to exchange the Notes] or interest in such Notes] specified herein, in
the principal amount of $_____________ in such Notes] or interests (the
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE
NOTES OR BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
NOTE. In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "Securities Act"), (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in
C-1
142
an Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any State of the United States.
(b) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL
INTEREST IN A RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i)
the Definitive Note is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Restricted Global Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the Definitive
Note is being acquired in compliance with any applicable blue sky securities
laws of any State of the United States.
(c) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In
connection with the Owner's Exchange of a Restricted Definitive Note for a
beneficial interest in an Unrestricted Global Note, the Owner hereby certifies
(i) the beneficial interest is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to Restricted Definitive Notes and pursuant to
and in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky
securities laws of any State of the United States.
(d) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Unrestricted Definitive
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the Unrestricted
Definitive Note is being acquired in compliance with any applicable blue sky
securities laws of any State of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) [ ] CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST
IN A RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In
connection with the Exchange of the
C-2
143
Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the Restricted Definitive Note issued will
continue to be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Definitive Note and in the
Indenture and the Securities Act.
(b) [ ] CHECK IF EXCHANGE IS FROM RESTRICTED
DEFINITIVE NOTE TO BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In
connection with the Exchange of the Owner's Restricted Definitive Note for a
beneficial interest in the: [CHECK ONE] [ ] 144A Global Note or [ ] Regulation
S Global Note with an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities Act, and in compliance with any
applicable blue sky securities laws of any State of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
C-3
144
This certificate and the statements contained herein are made for your BENEFIT
and the benefit of the Company.
- --------------------------------------
[insert Name of Owner]
By:
-----------------------------------
Name:
Title:
Dated:
--------------------------------
C-4