EXHIBIT 4.1
UNITED STATIONERS SUPPLY CO.,
as Issuer
UNITED STATIONERS INC.,
LAGASSE BROS., INC.,
AZERTY INCORPORATED,
POSITIVE ID WHOLESALE INC.,
AP SUPPORT SERVICES INCORPORATED,
as Guarantors
AND
THE BANK OF NEW YORK
as Trustee
--------------------------
Indenture
Dated as of April 15, 1998
--------------------------
$100,000,000
8 3/8% Senior Subordinated Notes
due 2008
UNITED STATIONERS SUPPLY CO.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of April 15, 1998
Trust Indenture
Act Section............................................Indenture Section
SECTION 310(a)(1) ..................................... 607
(a)(2) ..................................... 607
(b) ........................................ 608
SECTION 312(c) ........................................ 701
SECTION 314(a)(4) ..................................... 1008(a)
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(e) ........................................ 102
SECTION 315(b) ........................................ 601
SECTION 316(a)(last sentence) ......................... 101 ("Outstanding")
(a)(l)(A) .................................. 502, 512
(a)(1)(B) .................................. 513
(b) ........................................ 508
(c) ........................................ 104(d)
SECTION 317(a)(1) ..................................... 503
(a)(2) ..................................... 504
(b) ........................................ 1003
SECTION 318(a) ........................................ 111
This reconciliation and tie shall not, for any purpose, be
deemed to be a part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 2
SECTION 101. Definitions.........................................................................2
SECTION 102. Compliance Certificates and Opinions...............................................19
SECTION 103. Form of Documents Delivered to Trustee.............................................20
SECTION 104. Acts of Holders....................................................................20
SECTION 105. Notices, etc., to Trustee and Company..............................................22
SECTION 106. Notice to Holders; Waiver..........................................................22
SECTION 107. Effect of Headings and Table of Contents...........................................22
SECTION 108. Successors and Assigns.............................................................22
SECTION 109. Separability Clause................................................................22
SECTION 110. Benefits of Indenture..............................................................23
SECTION 111. Governing Law......................................................................23
SECTION 112. Legal Holidays.....................................................................23
SECTION 113. No Recourse Against Others.........................................................23
SECTION 114. Miscellaneous......................................................................23
ARTICLE TWO SECURITY FORMS 23
SECTION 201. Forms Generally....................................................................23
SECTION 202. Restrictive Legends................................................................25
ARTICLE THREE THE SECURITIES 28
SECTION 301. Title and Terms....................................................................28
SECTION 302. Denominations......................................................................28
SECTION 303. Execution, Authentication, Delivery and Dating.....................................28
SECTION 304. Temporary Securities...............................................................29
SECTION 305. Registration, Registration of Transfer and Exchange................................30
SECTION 306. Book-Entry Provisions for Global Securities........................................31
SECTION 307. Special Transfer Provisions........................................................32
SECTION 308. Mutilated, Destroyed, Lost and Stolen Securities...................................35
SECTION 309. Payment of Interest; Interest Rights Preserved.....................................35
SECTION 310. Persons Deemed Owners..............................................................36
SECTION 311. Cancellation.......................................................................37
SECTION 312. Computation of Interest............................................................37
SECTION 313. CUSIP Numbers......................................................................37
ARTICLE FOUR SATISFACTION AND DISCHARGE 37
SECTION 401. Satisfaction and Discharge of Indenture............................................37
SECTION 402. Application of Trust Money.........................................................38
ARTICLE FIVE REMEDIES 39
SECTION 501. Events of Default..................................................................39
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee....................41
SECTION 504. Trustee May File Proofs of Claim...................................................42
SECTION 505. Trustee May Enforce Claims Without Possession of Securities........................43
SECTION 506. Application of Money Collected.....................................................43
SECTION 507. Limitation on Suits................................................................43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium,
Interest and Additional Amounts...................................................44
SECTION 509. Restoration of Rights and Remedies.................................................44
SECTION 510. Rights and Remedies Cumulative.....................................................44
SECTION 511. Delay or Omission Not Waiver.......................................................44
SECTION 512. Control by Holders.................................................................44
SECTION 513. Waiver of Past Defaults............................................................45
SECTION 514. Waiver of Stay or Extension Laws...................................................45
SECTION 515. Undertaking for Costs..............................................................45
ARTICLE SIX THE TRUSTEE 46
SECTION 601. Notice of Defaults.................................................................46
SECTION 602. Certain Rights of Trustee..........................................................46
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Securities.....................47
SECTION 604. Trustee May Hold Securities........................................................47
SECTION 605. Money Held in Trust................................................................48
SECTION 606. Compensation and Reimbursement.....................................................48
SECTION 607. Corporate Trustee Required; Eligibility............................................48
SECTION 608. Resignation and Removal; Appointment of Successor..................................49
SECTION 609. Acceptance of Appointment by Successor.............................................50
SECTION 610. Merger, Conversion, Consolidation or Succession to Business........................50
ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE 51
SECTION 701. Disclosure of Names and Addresses of Holders.......................................51
SECTION 702. Reports by Trustee.................................................................51
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE OF ASSETS 51
SECTION 801. Company and Each Guarantor May Consolidate, etc., Only on Certain Terms............51
SECTION 802. Successor Substituted..............................................................53
ARTICLE NINE SUPPLEMENTAL INDENTURES............................................................53
SECTION 901. Supplemental Indentures Without Consent of Holders.................................53
SECTION 902. Supplemental Indentures with Consent of Holders....................................54
SECTION 903. Execution of Supplemental Indentures...............................................55
SECTION 904. Effect of Supplemental Indentures..................................................55
SECTION 905. Conformity with Trust Indenture Act................................................55
SECTION 906. Reference in Securities to Supplemental Indentures.................................55
SECTION 907. Notice of Supplemental Indentures..................................................55
ARTICLE TEN COVENANTS 56
SECTION 1001. Payment of Principal, Premium, if any, Interest and Additional Amounts, if
ii
any..............................................................................56
SECTION 1002. Maintenance of Office or Agency...................................................56
SECTION 1003. Money for Security Payments to Be Held in Trust...................................56
SECTION 1004. Corporate Existence...............................................................57
SECTION 1005. Payment of Taxes and Other Claims.................................................58
SECTION 1006. Maintenance of Properties.........................................................58
SECTION 1007. Insurance.........................................................................58
SECTION 1008. Statement by Officers As to Default...............................................58
SECTION 1009. Provision of Financial Statements.................................................59
SECTION 1010. Purchase of Notes upon Change in Control..........................................60
SECTION 1011. Limitation on Indebtedness........................................................61
SECTION 1012. Limitation on Restricted Payments.................................................63
SECTION 1013. Limitation on Transactions with Affiliates........................................67
SECTION 1014. Limitation on Senior Subordinated Indebtedness....................................68
SECTION 1015. Limitation on Liens...............................................................68
SECTION 1016. Limitation on Sale of Assets......................................................69
SECTION 1017. Limitation on Issuances of Guarantees of Indebtedness.............................71
SECTION 1018. Limitation on Subsidiary Capital Stock............................................72
SECTION 1019. Limitation on Dividends and Other Payment Restrictions Affecting
Restricted Subsidiaries..........................................................72
SECTION 1020. Waiver of Certain Covenants.......................................................73
SECTION 1021. Trustee's Application for Instructions from the Company...........................73
ARTICLE ELEVEN REDEMPTION OF SECURITIES 74
SECTION 1101. Right of Redemption...............................................................74
SECTION 1102. Applicability of Article..........................................................74
SECTION 1103. Election to Redeem; Notice to Trustee.............................................74
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.................................75
SECTION 1105. Notice of Redemption..............................................................75
SECTION 1106. Deposit of Redemption Price.......................................................75
SECTION 1107. Securities Payable on Redemption Date.............................................76
SECTION 1108. Securities Redeemed in Part.......................................................76
ARTICLE TWELVE DEFEASANCE AND COVENANT DEFEASANCE 76
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance......................76
SECTION 1202. Defeasance and Discharge..........................................................76
SECTION 1203. Covenant Defeasance...............................................................77
SECTION 1204. Conditions to Defeasance or Covenant Defeasance...................................77
ARTICLE THIRTEEN GUARANTEE OF SECURITIES 79
SECTION 1301. Guarantee.........................................................................79
SECTION 1302. Obligations Unconditional.........................................................81
SECTION 1303. Notice to Trustee.................................................................81
SECTION 1304. This Article Not to Prevent Events of Default.....................................81
ARTICLE FOURTEEN SUBORDINATION OF SECURITIES 81
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SECTION 1401. Securities Subordinated to Senior Indebtedness....................................81
SECTION 1402. No Payment on Securities in Certain Circumstances.................................82
SECTION 1403. Payment Over of Proceeds Upon Dissolution. Etc...................................83
SECTION 1404. Subrogation.......................................................................85
SECTION 1405. Obligations of Company Unconditional..............................................85
SECTION 1406. Notice to Trustee.................................................................86
SECTION 1407. Reliance on Judicial Order or Certificate of Liquidating Agent....................86
SECTION 1408. Trustee's Relation to Senior Indebtedness.........................................87
SECTION 1409. Subordination Rights Not Impaired by Acts or Omissions of the Company
or Holders of Senior Indebtedness................................................87
SECTION 1410. Holders Authorize Trustee to Effectuate Subordination of Securities...............87
SECTION 1411. Not to Prevent Events of Default..................................................87
SECTION 1412. Trustee's Compensation Not Prejudiced.............................................88
SECTION 1413. No Waiver of Subordination Provisions.............................................88
SECTION 1414. Payments May Be Paid Prior to Dissolution.........................................88
ARTICLE FIFTEEN SUBORDINATION OF GUARANTEES 88
SECTION 1501. Guarantees Subordinated to Senior Guarantor Indebtedness..........................88
SECTION 1502. No Payment on Guarantees of Securities in Certain Circumstances...................89
SECTION 1503. Payment Over of Proceeds Upon Dissolution, Etc....................................90
SECTION 1504. Subrogation.......................................................................92
SECTION 1505. Obligations of Company Unconditional..............................................92
SECTION 1506. Notice to Trustee.................................................................93
SECTION 1507. Reliance on Judicial Order or Certificate of Liquidating Agent....................93
SECTION 1508. Trustee's Relation to Senior Guarantor Indebtedness...............................94
SECTION 1509. Subordination Rights Not Impaired by Acts or Omissions of the
Guarantors or Holders of Senior Guarantor Indebtedness...........................94
SECTION 1510. Holders Authorize Trustee to Effectuate Subordination of Guarantee of
Securities.......................................................................94
SECTION 1511. Not to Prevent Events of Default..................................................95
SECTION 1512. Trustee's Compensation Not Prejudiced.............................................95
SECTION 1513. No Waiver of Subordination Provisions.............................................95
SECTION 1514. Payments May Be Paid Prior to Dissolution.........................................95
EXHIBIT A....................................Form of Security
EXHIBIT B....................................Form of Certificate to be Delivered in Connection with
Transfers to Institutional Accredited Investors
EXHIBIT C....................................Form of Certificate to be Delivered in Connection with
Transfers Pursuant to Regulation S
EXHIBIT D....................................Form of Company Subordinated Note
iv
EXHIBIT E....................................Form of Restricted Subsidiary Intercompany Note
v
INDENTURE, dated as of April 15, 1998 among UNITED STATIONERS
SUPPLY CO., a corporation duly organized and existing under the laws of the
State of Illinois (herein called the "COMPANY"), having its principal office
at 2200 East Golf Road, Des Plaines, Illinois 60016-1267, UNITED STATIONERS
INC., a corporation duly organized and existing under the laws of the State
of Delaware ("UNITED"), LAGASSE BROS., INC., a corporation duly organized and
existing under the laws of the State of Louisiana, AZERTY INCORPORATED, a
corporation duly organized and existing under the laws of the State of
Delaware, POSITIVE ID WHOLESALE INC., a corporation duly organized and
existing under the laws of the State of Delaware, AP SUPPORT SERVICES
INCORPORATED, a corporation duly organized and existing under the laws of the
State of Delaware (each, together with United, a "GUARANTOR" and collectively
with United and other guarantors added from time to time, the "GUARANTORS")
and, The Bank of New York, a New York banking corporation, as Trustee (herein
called the "TRUSTEE").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of (i) an issue
of 8 3/8% Senior Subordinated Notes due 2008 to be issued on the date hereof
(together with the guarantees of the Guarantors thereof, herein called the
"INITIAL SECURITIES"), (ii) 8 3/8% Senior Subordinated Notes due 2008 to be
issued in exchange for the Initial Securities (together with the guarantees
of the Guarantors thereof, the "EXCHANGE SECURITIES" and/or "PRIVATE EXCHANGE
SECURITIES") and (iii) additional Senior Subordinated Notes having
substantially identical terms and conditions to the Initial Securities
(together with the guarantees of the Guarantors thereof, the "ADDITIONAL
SECURITIES" and, together with the Initial Securities, the "SECURITIES"), of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture. Exchange Securities and Private Exchange Securities shall include
securities issued in exchange for Additional Securities having substantially
the same tenor and amount as the Additional Securities.
Each of the Guarantors has authorized the making of its
guarantees pursuant to this Indenture (the "GUARANTEES"). Upon the issuance
of the Exchange Securities, if any, or the effectiveness of the Shelf
Registration Statement (as defined), this Indenture will become subject to
the provisions of the Trust Indenture Act of 1939, as amended, that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary have been done (i) to make the
Securities, when executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the
Company in accordance with their terms, (ii) to make the Guarantees, when
executed and delivered by the Guarantors, the valid obligations of each of
the Guarantors severally in accordance with their terms and (iii) to make
this Indenture, when executed and delivered by the Company and the Guarantors
and duly authorized, executed and delivered by the Trustee, a valid agreement
of the Company and the Guarantors, in accordance with its terms.
2
NOW, THEREFORE, THIS INDENTURE WITNESSETH
For and in consideration of the premises and the purchase of
the Securities by the Holders (as defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them in the Trust Indenture Act, and the terms "cash
transaction" and "self-liquidating paper," as used in Trust Indenture Act
Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(c) all accounting terms not otherwise deemed herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall have the meaning ascribed to "GAAP" in
this Article; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"12 3/4 NOTES" means the Company's existing 12 3/4% Senior
Subordinated Notes due 2005.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (i)
existing at the time such Person becomes a Restricted Subsidiary or (ii)
assumed in connection with the acquisition of assets from such Person.
Acquired Indebtedness shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Restricted Subsidiary.
"ADDITIONAL AMOUNTS" has the meaning specified in the
Registration Rights Agreement or in such other registration rights agreement
to be executed in connection with the issuance of Additional Securities.
"ADDITIONAL SECURITIES" has the meaning stated in the first
recital of this Indenture.
3
"AFFILIATE" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person or (ii) any
other Person that owns, directly or indirectly, 10% or more of such specified
Person's Capital Stock or any executive officer or director of any such
specified Person or other Person or, with respect to any natural Person, any
person having a relationship with such Person by blood, marriage or adoption
not more remote than first cousin. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of voting securities, by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"ASSET SALE" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or Sale and Leaseback Transaction) (collectively, a
"TRANSFER"), directly or indirectly, in one or a series of related
transactions, of (i) any Capital Stock of any Restricted Subsidiary; (ii) all
or substantially all of the properties and assets of any division or line of
business of the Company or any Restricted Subsidiary; or (iii) any other
properties or assets of the Company or any Restricted Subsidiary, other than
in the ordinary course of business. For the purposes of this definition, the
term "Asset Sale" shall not include (w) any transfer of properties or assets
(A) that is governed by Section 810(a), (B) that is by the Company to any
Restricted Wholly Owned Subsidiary, or by any Restricted Wholly Owned
Subsidiary to the Company or any Restricted Wholly Owned Subsidiary in
accordance with the terms of this Indenture, (x) dispositions with a Fair
Market Value of less than $2.5 million in the aggregate in any fiscal year,
(y) any Sale of Receivables and Related Assets pursuant to a Permitted
Receivables Securitization Program, or (z) the sale of real or personal
property or equipment that has become worn out, obsolete or damaged or
otherwise unsuitable or not required for use in connection with the business
of the Company or any Restricted Subsidiary, as the case may be.
"AVERAGE LIFE TO STATED MATURITY" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date
of determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such
principal payment by (ii) the sum of all such principal payments.
"BANKRUPTCY LAW" means Title 11, United States Bankruptcy Code
of 1978, as amended, or any similar United States federal or state law
relating to bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or
change in any such law.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company or any committee thereof duly authorized to act on behalf of such
Board.
"BOARD RESOLUTION" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
4
"BORROWING BASE" means, as of any date of determination, an
amount equal to the sum of (a) 85% of the face amount of all accounts
receivable of the Company and its Restricted Subsidiaries as of such date and
(b) 65% of the book value (calculated on a FIFO basis) of all inventory owned
by the Company and its Restricted Subsidiaries as of such date, all
calculated on a Consolidated basis and in accordance with GAAP. To the extent
that information is not available as to the amount of accounts receivable or
inventory as of a specific date, the Company may utilize the most recent
available quarterly or annual financial report for purposes of calculating
the Borrowing Base; provided, that any subsequent sale of Receivables and
Related Assets on or prior to the date of determination pursuant to a
Permitted Receivables Securitization Program shall be deducted from
"Borrowing Base" for purposes of the calculation thereof.
"BUSINESS DAY" means a day other than a Saturday, Sunday or
other day on which banking institutions in New York State are authorized or
required by law to close.
"CAPITAL LEASE OBLIGATION" means any obligations of the
Company and its Restricted Subsidiaries on a Consolidated basis under any
capital lease of real or personal property which, in accordance with GAAP,
has been recorded as a capitalized lease obligation.
"CAPITAL STOCK" of any Person means any and all shares,
interests, participations, partnership interests or other equivalents
(however designated) of such Person's capital stock.
"CHANGE OF CONTROL" means the occurrence of any of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act) becomes the ultimate
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act), directly or indirectly, of more than 50% of the voting power of the
total outstanding Voting Stock of United (or any successor) or the Company
(or any successor) voting as one class; (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of United or the Company (together with
any new directors whose election to such Board of Directors or whose
nomination for election by the shareholders of such Person, was approved by a
vote of 66-2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of such Board of Directors then in office; (iii) United or the
Company conveys, transfers, or leases or otherwise disposes of all or
substantially all of its assets to any Person; (iv) United (or any successor)
or the Company (or any successor) is liquidated or dissolved or adopts a plan
of liquidation or dissolution other than in a transaction which complies with
the provisions of Article Eight; and (v) the failure of United (or any
successor) to beneficially own 100% of the voting power of the total
outstanding Voting Stock of the Company (or any successor).
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any
time after the execution of this Indenture such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act,
then the body performing such duties at such time.
5
"COMPANY" means United Stationers Supply Co., a corporation
incorporated under the laws of the State of Illinois, until a successor
Person shall have become such pursuant to the applicable provisions hereof,
and thereafter "COMPANY" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request
or order signed in the name of the Company by any one of the following: its
Chairman, its President, any Vice President, its Treasurer or an Assistant
Treasurer, and delivered to the Trustee.
"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" of the Company
means, for any period, the ratio, determined on a pro forma basis, of (a) the
sum of Consolidated Net Income (Loss), Consolidated Interest Expense,
Consolidated Income Tax Expense and Consolidated Non-cash Charges deducted in
computing Consolidated Net Income (Loss) in each case, for such period, of
the Company and its Restricted Subsidiaries on a Consolidated basis, all
determined in accordance with GAAP to (b) the sum of Consolidated Interest
Expense for such period and cash and non-cash dividends required to be paid
or accrued on any Preferred Stock of the Company and its Restricted
Subsidiaries during such period; provided that (i) in making such
computation, the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a pro forma basis and (A) bearing a floating
interest rate, shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period and (B) which
was not outstanding during the period for which the computation is being made
but which bears at the option of the Company, a fixed or floating rate of
interest, shall be computed by applying at the option of the Company, either
the fixed or floating rate and (ii) in making such computation, the
Consolidated Interest Expense of the Company and its Restricted Subsidiaries
attributable to interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed based upon the
average daily balance of such Indebtedness during the applicable period. "Pro
forma basis" means, for purposes of calculating the Consolidated Fixed Charge
Coverage Ratio, giving pro forma effect to (i) the incurrence of the
Indebtedness giving rise to the need for such calculation and the application
of the net proceeds therefrom, including to refinance other Indebtedness, as
if such Indebtedness was incurred, and the application of such proceeds
occurred, at the beginning of the relevant four-quarter period; (ii) the
incurrence, repayment or retirement of any other Indebtedness by the Company
and its Restricted Subsidiaries since the first day of the relevant
four-quarter period as if such Indebtedness was incurred, repaid or retired
at the beginning of such four-quarter period (except that, in making such
computation, the amount of Indebtedness outstanding under any revolving
credit facility shall be computed based upon the average daily balance of
such Indebtedness during such four-quarter period); (iii) in the case of
Acquired Indebtedness, the related acquisition as if such acquisition
occurred at the beginning of the relevant four-quarter period; and (iv) any
acquisition or disposition by the Company or its Restricted Subsidiaries of
any company or any business or any assets out of the ordinary course of
business, whether by merger, stock purchase or sale or asset purchase or
sale, as if such acquisition or disposition, as the case may be, occurred at
the beginning of the relevant four-quarter period, and any related incurrence
or repayment of Indebtedness, in each case since the first day of the
relevant four-quarter period, assuming such acquisition or disposition had
been consummated on the first day of such four-quarter period. For purposes
of clause (iv) of this definition of "pro forma basis", in connection with an
acquisition of any company, business or assets, any such pro forma
calculation may include (1) any pro forma adjustments relating to the
relevant four-quarter period that would satisfy the requirements of Rule
11-02(a) of Regulation S-X, and (2) any other reduction of operating or
6
other expenses in respect of restructuring or consolidating any business,
operations or facilities, any compensation or headcount reduction, or any
other cost savings, of any Persons either alone or together with the Company
or any Restricted Subsidiary, that would otherwise have resulted in the
payment of cash within the next four full fiscal quarters after the date of
consummation of such acquisition (collectively, the "COST SAVINGS"); provided
that (a) the Company reasonably believes in good faith that such Cost Savings
would have been achieved during the next four full fiscal quarters after the
date of consummation of such acquisition (regardless of whether such Cost
Savings could be reflected in pro forma financial statements under generally
accepted accounting principles, Regulation S-X or any other regulation or
policy of the SEC), (b) such Cost Savings are set forth in reasonable detail
in an operating plan which has been approved pursuant to a resolution of the
Board of Directors and are (X) limited to the lowest amount of a range if any
such Cost Savings are set forth as a range and (Y) net of any operating
expenses reasonably expected to be incurred during the next four full fiscal
quarters after the date of consummation of such acquisition to implement such
Cost Savings, and (c) such Cost Savings are identified and quantified in an
officers' certificate signed by the chief financial officer and another
officer of the Company and delivered to the Trustee at the time of
consummation of such acquisition.
"CONSOLIDATED INCOME TAX EXPENSE" means, for any period the
provision for federal, state, local and foreign income taxes of the Company
and its Restricted Subsidiaries for such period as determined in accordance
with GAAP on a Consolidated basis.
"CONSOLIDATED INTEREST EXPENSE" of the Company means, without
duplication for any period, the sum of (a) the interest expense of the
Company and its Restricted Subsidiaries for such period, on a Consolidated
basis, including, without limitation, (i) amortization of debt discount
(other than debt discount attributable solely to a discount in the purchase
price of Indebtedness sold with an equity security, to the extent of the
amount of the value reasonably attributed in good faith to such equity
security at the time of such sale and reflected in an Officers' Certificate
delivered promptly thereafter to the Trustees), (ii) the net cost under
Interest Rate Agreements (including amortization of discounts), (iii) the
interest portion of any deferred payment obligation, (iv) accrued interest
and (v) the amortization of deferred financing costs, plus (b) (i) the
interest component of the Capital Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by the Company during such period and (ii)
all capitalized interest of the Company and its Restricted Subsidiaries, less
(c) the amortization of any deferred financing costs to the extent paid prior
to or on the Issue Date, in each case as determined in accordance with GAAP
on a Consolidated basis.
"CONSOLIDATED NET INCOME (LOSS)" of the Company means, for any
period, the Consolidated net income (or loss) of the Company and its
Restricted Subsidiaries for such period as determined in accordance with
GAAP, adjusted, to the extent included in calculating such net income (loss),
by excluding, without duplication, (i) all extraordinary, unusual or
nonrecurring gains or losses (less all fees and expenses relating thereto),
(ii) the portion of net income (or loss) of the Company and its Restricted
Subsidiaries allocable to minority interests in unconsolidated Persons to the
extent that cash dividends or distributions have not actually been received
by the Company or one of its Restricted Subsidiaries, (iii) net income (or
loss) of any Person combined with the Company or any of its Restricted
Subsidiaries on a "pooling of interests" basis attributable to any period
prior to the date of combination, (iv) any gain or loss, net of taxes,
7
realized upon the termination of any employee pension benefit plan, (v) net
gains (or losses), less all fees and expenses relating thereto, in respect of
dispositions of assets other than in the ordinary course of business and the
net income of any Unrestricted Subsidiary, except to the extent paid to thc
Company or any Restricted Subsidiary in cash as a dividend or distribution or
(vi) the net income of any Restricted Subsidiary to the extent that the
declaration of dividends or similar distributions by that Restricted
Subsidiary of that income is not at the time permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental
regulations applicable to such Restricted Subsidiary or its stockholders.
"CONSOLIDATED NET WORTH" of any Person means the Consolidated
stockholders' equity (excluding Redeemable Capital Stock) of such Person and
its subsidiaries (or, in the case of United or the Company, the Restricted
Subsidiaries), as determined in accordance with GAAP on a Consolidated basis.
"CONSOLIDATED NON-CASH CHARGES" of the Company means, for any
period, the aggregate depreciation, amortization and other non-cash charges
of the Company and its Restricted Subsidiaries on a Consolidated basis
reducing the Consolidated Net Income of the Company and its Restricted
Subsidiaries for such period, as determined in accordance with GAAP
(excluding any non-cash charge which requires an accrual or reserve for cash
charges for any future period).
"CONSOLIDATION" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its subsidiaries
(or, in the case of United or the Company, the Restricted Subsidiaries) if
and to the extent the accounts of such Person and each of its subsidiaries
(or, in the case of United or the Company, the Restricted Subsidiaries) would
normally be consolidated with those of such Person, all in accordance with
GAAP. The term "CONSOLIDATED" shall have a similar meaning.
"CORPORATE TRUST OFFICE" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 101 Barclay Street, Floor 21 West, New York, New York
10286, Attn: Corporate Trust Administration.
"CREDIT FACILITIES" means the Amended and Restated Credit
Agreement dated as of April 3, 1998 among the Company, United, the
subsidiaries of the Company, if any, identified on the signature pages
thereof under the caption "Subsidiary Guarantors," the lenders named therein
and The Chase Manhattan Bank, as Administrative Agent for said lenders,
including a term loan made pursuant to the term loan agreement, a revolving
credit loan made pursuant to the revolving credit loan agreement, and any
ancillary documents executed in connection therewith, as such agreements may
be amended, renewed, extended, substituted, refinanced, restructured,
replaced, supplemented or otherwise modified from time to time (including,
without limitation, any successive renewals, extensions, substitutions,
refinancings, restructuring, replacements, supplements or other modifications
of the foregoing, including the addition of new lenders or agents). For
purposes of this Indenture, "Credit Facilities" shall include any amendments,
renewals, extensions, substitutions, refinancings, restructuring,
replacements, supplements or any other modifications that increase the
principal amount of the Indebtedness or
8
the commitments to lend thereunder, whether under one or more credit
facilities or agreements; provided that, for purposes of the definition of
"Permitted Indebtedness," no such increase may result in the principal amount
of Indebtedness under the Credit Facilities exceeding the amount permitted by
Section 1011(6)(i).
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 309.
"DEPOSITARY" means The Depository Trust Company, its nominees
and their respective successors.
"DESIGNATED SENIOR GUARANTOR INDEBTEDNESS" means (i) all
Senior Guarantor Indebtedness under the Credit Facilities; and (ii) any other
Senior Guarantor Indebtedness which, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend, at least $75.0
million, and which is specifically designated by the Guarantor in the
agreement governing or the instrument evidencing such Senior Guarantor
Indebtedness as "Designated Senior Guarantor Indebtedness."
"DESIGNATED SENIOR INDEBTEDNESS" means (i) all Senior
Indebtedness under the Credit Facilities; and (ii) any other Senior
Indebtedness which, at the date of determination, has an aggregate principal
amount outstanding of, or under which, at the date of determination, the
holders thereof are committed to lend, at least $75.0 million, and which is
specifically designated by the Company in the agreement governing or the
instrument evidencing such Senior indebtedness as "Designated Senior
Indebtedness."
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE OFFER" means the exchange offer that may be effected
pursuant to the Registration Rights Agreement and the offer by the Company to
exchange all of the Additional Securities for a like aggregate principal
amount of Exchange Securities, in each case as provided in this Indenture.
"EXCHANGE OFFER REGISTRATION STATEMENT" means the Exchange
Offer Registration Statement as defined in the Registration Rights Agreement.
"EXCHANGE SECURITIES" has the meaning stated in the first
recital of this Indenture and refers to any Exchange Securities containing
terms substantially identical to the Initial Securities (except that such
Exchange Securities shall not contain terms with respect to transfer
restrictions) that are issued and exchanged for the Initial Securities
pursuant to the Registration Rights Agreement and this Indenture.
"FAIR MARKET VALUE" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length
transaction between an informed and willing seller
9
under no compulsion to sell and an informed and willing buyer under no
compulsion to buy as determined by the Board of Directors in good faith and
evidenced by a Board Resolution.
"GAAP" or "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means
generally accepted accounting principles in the United States, consistently
applied, which are in effect at the time any given calculation is made.
"GUARANTEE" means the guarantee by any Guarantor of the
Company's Indenture Obligations pursuant to a guarantee given in accordance
with this Indenture.
"GUARANTEED DEBT" of any Person means, without duplication,
all Indebtedness of any other Person guaranteed directly or indirectly in any
manner by such Person through an agreement (i) to pay or purchase such
Indebtedness or to advance or supply funds for the payment or purchase of
such indebtedness, (ii) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Indebtedness or to assure the
holder of such Indebtedness against loss, (iii) to supply funds to, or in any
other manner invest in, the debtor (including any agreement: to pay for
property or services without requiring that such property be received or such
services be rendered), (iv) to maintain working capital or equity capital of
the debtor, or otherwise to maintain the net worth, solvency or other
financial condition of the debtor or (v) otherwise to assure a creditor
against loss; PROVIDED that the term "guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary course
of business.
"GUARANTOR" means United, the other Guarantors named in the
first paragraph of this Indenture, and each Restricted Subsidiary that is
organized under the laws of the United States or any state or territory
thereof, including the District of Columbia, which incurs any Indebtedness,
other than the Joint Venture and any Securitization Subsidiary that has
entered into or established a Permitted Receivables Securitization Program.
"HOLDER" means a Person in whose name a Security is registered
in the Security Register.
"INCUR" has the meaning specified in Section 1011; PROVIDED
that with respect to any Indebtedness of any Subsidiary that is owing to the
Company or another Subsidiary, (a) any disposition, pledge or transfer of
such Indebtedness to any Person (other than the Company or a Wholly Owned
Subsidiary or a pledge to lenders under the Credit Facilities) shall be
deemed to be an incurrence of such Indebtedness and (b) any transaction
pursuant to which a Wholly Owned Subsidiary (which is an obligor on
Indebtedness permitted by Section 1011(b)(vi)) ceases to be a Wholly Owned
Subsidiary shall be deemed to be an incurrence of such Indebtedness not
permitted by Section 1011(b)(vi).
"INDEBTEDNESS" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for
the deferred purchase price of property or services, excluding any trade
payables, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued
under letter of credit facilities, acceptance facilities or other similar
facilities now or hereafter outstanding, if, and to the extent, any of the
foregoing would appear as a liability upon a balance
10
sheet of such Person prepared in accordance with GAAP, (ii) all obligations
of such Person evidenced by bonds, notes, debentures or other similar
instruments, (iii) all indebtedness created or arising under any conditional
sale or other title retention agreement with respect to property acquired by
such Person (even if the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or sale of
such property), but excluding trade payables arising in the ordinary course
of business, (iv) all obligations under Interest Rate Agreements of such
Person, (v) all Capital Lease Obligations of such Person, (vi) all
Indebtedness referred to in clauses (i) through (v) above of other Persons
and all dividends of other Persons, the payment of which is secured by (or
for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien, upon or with respect to property
(including, without limitation, accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness, (vii) all Guaranteed Debt of such Person and
(viii) all Redeemable Capital Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price. For purposes hereof, the "maximum
fixed repurchase price" of any Redeemable Capital Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of
such Redeemable Capital Stock as if such Redeemable Capital Stock were
purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Redeemable Capital Stock, such
Fair Market Value shall be determined in good faith by the board of directors
of the issuer of such Redeemable Capital Stock.
"INDENTURE OBLIGATIONS" means the obligations of the Company
and any other obligor, including any Guarantor, under this Indenture or under
the Securities to pay principal of, premium, if any, and interest when due
and payable, and all other amounts due or to become due under or in
connection with this Indenture, the Securities and the performance of all
other obligations to the Trustee and the Holders under this Indenture and the
Securities, according to the terms thereof.
"INITIAL PURCHASERS" means Chase Securities Inc. and Bear,
Stearns & Co. Inc.
"INITIAL SECURITIES" has the meaning stated in the first
recital of this Indenture.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institutional
"accredited investor" as that term is defined in Rule 501(a)(1), (2), (3) and
(7) under the Securities Act.
"INTEREST PAYMENT DATE" means the Stated Maturity of an
installment of interest on the Securities.
"INTEREST RATE AGREEMENTS" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar arrangements) and/or other
types of interest rate hedging agreements from time to time.
"INVESTMENTS" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services
11
for the account or use of others), or any purchase, acquisition or ownership
by such Person of any Capital Stock, bonds, notes, debentures or other
securities issued by, any other Person and all other items that would be
classified as investments on a balance sheet prepared in accordance with
GAAP. In addition, the Fair Market Value of the net assets of any Restricted
Subsidiary at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary shall be deemed to be an "Investment" made by the
Company in such Unrestricted Subsidiary. The amount of any non-cash
Investment shall be equal to the Fair Market Value of the assets invested, as
determined in good faith by (i) in the case of any Investment in excess of
$5.0 million the Board of Directors of the Company (provided that such
determination is evidenced by a Board Resolution) or (ii) in any other case,
an executive officer of the Company.
"ISSUE DATE" means the date on which the Initial Securities
are first issued.
"ISSUERS" means, collectively, the Company and the Guarantors.
"JOINT VENTURE" means United Business Computers, Inc., a
Delaware corporation.
"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.
"MATURITY" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as
therein provided or as provided in this Indenture, whether at Stated
Maturity, the Repurchase Date or the redemption date and whether by
declaration of acceleration, offer in respect of Excess Proceeds, Change of
Control, call for redemption or otherwise.
"NET CASH PROCEEDS" means (a) with respect to any Asset Sale
by any Person, the proceeds thereof in the form of cash or Temporary Cash
Investments including payments in respect of deferred payment obligations
when received in the form of, or stock or other assets when disposed for,
cash or Temporary Cash Investments (except to the extent that such
obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary) net of (i) brokerage commissions and other actual fees
and expenses (including fees and expenses of counsel and investment bankers)
related to such Asset Sale, (ii) provisions for all taxes payable as a result
of such Asset Sale, (iii) payments made to retire Indebtedness where payment
of such Indebtedness is secured by the assets or properties the subject of
such Asset Sale, (iv) amounts required to be paid to any Person (other than
the Company or any Restricted Subsidiary) owning a beneficial interest in the
assets subject to the Asset Sale and (v) appropriate amounts to be provided
by the Company or any Restricted Subsidiary, as the case may be, as a
reserve, in accordance with GAAP or, until no longer required by contract
with the buyer, as required by contract with the buyer, against any
liabilities associated with such Asset Sale and retained by the Company or
any Restricted Subsidiary, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities
under any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee and (b) with
respect to any issuance or sale of Capital Stock or options, warrants or
rights to purchase Capital Stock or Indebtedness or Capital Stock that have
been converted into or exchanged for Capital
12
Stock, the proceeds of such issuance or sale in the form of cash or Temporary
Cash Investments, including payments in respect of deferred payment
obligations when received in the form of, or stock or other assets when
disposed for, cash or Temporary Cash Investments (except to the extent that
such obligations are financed or sold with recourse to the Company or any
Restricted Subsidiary), net of attorneys' fees, accountants' fees and
brokerage, consultation, underwriting and other fees and expenses actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"NON-U.S. PERSONS" means persons other than "U.S. Persons" as
defined in Regulation S.
"NOTES" means, collectively, the Company's 8/ /% Senior
Subordinated Notes due 2008 issued hereunder on the Issue Date and pursuant
to the Registration Rights Agreement, and additional notes of the Company
authorized to be issued hereunder pursuant to Section 301.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Company, including an employee of the Company, and who
shall be reasonably acceptable to the Trustee.
"OUTSTANDING," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment
or redemption money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; PROVIDED that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except and only to the extent provided
in Sections 1202 and 1203, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in
Article Twelve; and
(iv) Securities which have been paid pursuant to Section
308 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section
13
313, Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in making such calculation or in relying upon any
such request, demand, authorization, direction, notice, consent or waiver,
only Securities which a Responsible Officer of the Trustee actually knows to
be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"PARI PASSU INDEBTEDNESS" means any Indebtedness of the
Company or a Guarantor that is PARI PASSU in right of payment to the Notes or
a Guarantee of the Notes, as the case may be.
"PAYING AGENT" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and
premium, if any,), interest or Additional Amounts, if any, on any Securities
on behalf of the Company.
"PERMITTED INDEBTEDNESS" has the meaning specified in Section
1011(b).
"PERMITTED INVESTMENT" means (i) Investments in the Company or
any Restricted Subsidiary or any Person which, as a result of such
Investment, becomes a Restricted Subsidiary; (ii) Indebtedness of the Company
or a Restricted Subsidiary described under clauses (vi) and (vii) of the
definition of "Permitted Indebtedness"; (iii) Temporary Cash Investments;
(iv) receivables owing to the Company or any Restricted Subsidiary, if
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms, PROVIDED, HOWEVER,
that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (v) Investments acquired by the Company or any Restricted
Subsidiary in connection with an Asset Sale permitted under Section 1016 to
the extent such Investments are non-cash proceeds as permitted under such
Section; (vi) guarantees of Indebtedness otherwise permitted by this
Indenture; (vii) Investments in existence on the Issue Date; (viii) customer
advances not to exceed $2.5 million at any one time outstanding; (ix) travel
and relocation loans and advances made to employees in the ordinary course of
business; (x) Investments received in settlement of defaulted receivables or
in connection with the bankruptcy or reorganization of suppliers and
customers and in connection with the settlement of other disputes with
customers and suppliers arising in the ordinary course of business; and (xi)
additional Investments not to exceed $25.0 million at any one time
outstanding.
"PERMITTED RECEIVABLES SECURITIZATION PROGRAM" means a
transaction or series of transactions (including amendments, supplements,
extensions, renewals, replacements, refinancings or modifications thereof)
pursuant to which a Securitization Subsidiary purchases Receivables and
Related Assets from the Company or any Restricted Subsidiary and finances
such Receivables and Related Assets through the issuance of Indebtedness or
equity interests or through the sale of the Receivables and Related Assets or
a fractional undivided interest in the Receivables and Related Assets;
PROVIDED that (i) the Board of Directors shall have determined in good faith
that such Permitted Receivables Securitization Program is economically fair
and
14
reasonable to the Company and the Securitization Subsidiary, (ii) all sales
of Receivables and Related Assets to or by the Securitization Subsidiary are
made at Fair Market Value, (iii) the financing terms, covenants, termination
events and other provisions thereof shall be market terms (as determined in
good faith by the Board of Directors), (iv) no portion of the Indebtedness of
a Securitization Subsidiary is Guaranteed by or is recourse to the Company or
any Restricted Subsidiary (other than recourse for customary representations,
warranties, covenants and indemnities, none of which shall relate to the
collectability of the Receivables and Related Assets) and (v) neither the
Company nor any Subsidiary has any obligation to maintain or preserve the
Securitization Subsidiary's financial condition.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political
subdivisions thereof.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 308 in
exchange for a mutilated security or in lieu of a lost, destroyed or stolen
Security shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Security.
"PREFERRED STOCK" means with respect to any Person, any and
all shares, interests, participations or other equivalents (however
designated) of such Person's preferred stock whether now outstanding, or
issued after the Issue Date, and including, without limitation, all classes
and series of preferred or preference stock.
"PROGRAM FUNDED AMOUNT" means, at any time, the amount of the
unrecovered aggregate "invested amount" of the purchaser or purchasers (other
than the Company or any Subsidiary) of Receivables and Related Assets or
interests therein sold by the Company and the Subsidiaries pursuant to the
Company's 1998 Receivables Securitization Program excluding amounts
representative of yield or interest earned on such aggregate "invested
amount."
"PUBLIC EQUITY OFFERING" means a bona-fide underwritten sale
to the public of Common Stock of the Company or of United, provided that, in
the case of such a sale of Common Stock of United, the net cash proceeds
thereof are paid to the Company as a capital contribution, pursuant to a
registration statement (other than Form S-8 or a registration statement
relating to securities issuable by any benefit plan of United, the Company or
any Subsidiary) that is declared effective by the Commission.
"QUALIFIED CAPITAL STOCK" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act.
"RECEIVABLES AND RELATED ASSETS" means accounts receivable in
respect of merchandise, goods or services, and instruments, documents,
chattel paper, obligations, general intangibles and other similar assets, in
each case, relating to such receivables, including interests in merchandise
or goods, the sale or lease of which gave rise to such receivable, related
15
contractual rights, guarantees, insurance proceeds, collections, other
related assets, and proceeds of all of the foregoing.
"REDEEMABLE CAPITAL STOCK" means any Capital Stock that,
either by its terms or by the terms of any security into which it is
convertible or exchangeable or otherwise, is or upon the happening of an
event or passage of time would be, required to be redeemed prior to any
Stated Maturity of the principal of the Securities or is redeemable at the
option of the holder thereof at any time prior to any such Stated Maturity.
"REDEMPTION DATE," when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"REDEMPTION PRICE," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTRATION RIGHTS AGREEMENT" means the Exchange and
Registration Rights Agreement among the Company, the Guarantors and the
Initial Purchasers, dated April 15, 1998, relating to the Securities.
"REGISTRATION STATEMENT" means a Registration Statement as
defined in the Registration Rights Agreement.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date means the April 1 or October 1 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"REGULATION S" means Regulation S under the Securities Act.
"REGULATION S-X" means Regulation S-X under the Securities Act.
"REPRESENTATIVE" means, with respect to any Designated Senior
Indebtedness or Designated Senior Guarantor Indebtedness, the indenture
trustee or other trustee, agent or representative in respect of such
Indebtedness; provided that if, and so long as, any such Indebtedness lacks
such a representative, then the "Representative" with respect to such
Indebtedness shall be the holders of a majority in outstanding principal
amount (or, if no amounts thereunder are outstanding, the committed amounts)
of such Indebtedness.
"RESALE RESTRICTION TERMINATION DATE" has the meaning
specified in Section 202.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means any vice president, any assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers, and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"RESTRICTED PERIOD" has the meaning specified in Section 202.
16
"RESTRICTED SUBSIDIARY" means any Subsidiary other than an
Unrestricted Subsidiary.
"SALE AND LEASEBACK TRANSACTION" means any transaction or
series of related transactions pursuant to which the Company or a Restricted
Subsidiary sells or transfers any property or asset in connection with the
leasing, or the resale against installment payments, of such property or
asset to the seller or transferor.
"SECURITIES" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture. For all purposes of this Indenture, the term
"Securities" shall include any Exchange Securities and any Private Exchange
Securities that are issued and exchanged for any Securities pursuant to the
Registration Rights Agreement and this Indenture and any Additional
Securities issued in accordance with the provisions of this Indenture, and,
for purposes of this Indenture, all Securities, Exchange Securities, Private
Exchange Securities and Additional Securities shall vote together as one
series of Securities under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIZATION SUBSIDIARY" means a Consolidated Restricted
Subsidiary or an Unrestricted Subsidiary of the Company which is established
for the limited purpose of acquiring and financing Receivables and Related
Assets and engaging in activities ancillary thereto.
"SECURITY REGISTER" and "SECURITY REGISTRAR" or "REGISTRAR"
have the respective meanings specified in Section 305.
"SENIOR GUARANTOR INDEBTEDNESS" means, with respect to any
Guarantor, the principal of, premium, if any, interest (including interest
accruing after the filing of a petition initiating any proceeding under any
state, federal or foreign bankruptcy laws whether or not allowable as a claim
in such proceeding), Additional Amounts, if any, and all obligations of every
nature of such Guarantor from time to time owed under any Indebtedness of
such Guarantor (except as otherwise provided in this definition), whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating
or evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall not be senior in right of payment to
such Guarantor's Guarantee of the Notes. Without limiting the generality of
the foregoing, "Senior Guarantor Indebtedness" shall include the principal of
(and premium, if any) interest (including interest accruing after the filing
of a petition initiating any proceeding under any state, federal or foreign
bankruptcy laws whether or not allowable as a claim in such proceeding),
Additional Amounts, if any, and all other obligations of every nature of any
Guarantor from time to time owed under the Credit Facilities; provided,
however, that any Indebtedness under any refinancing, refunding or
replacement of the Credit Facilities shall not constitute Senior Guarantor
Indebtedness to the extent that the Indebtedness thereunder is by its express
terms subordinate to any other Indebtedness of any Guarantor. Notwithstanding
the foregoing, "Senior Guarantor Indebtedness" shall not include any of the
following (whether or not constituting Indebtedness under this Indenture):
(i) Indebtedness evidenced by the Guarantees of the Notes or guarantees of
the 12 3/4% Notes, (ii) Indebtedness that, by its express terms, is
subordinate or
17
junior in right of payment to any Indebtedness of any Guarantor, (iii)
Indebtedness which when incurred and without respect to any election under
Section 1111(b) of Title 11, United States Bankruptcy Code of 1978, as
amended, is without recourse to any Guarantor, (iv) Indebtedness which is
represented by Redeemable Capital Stock, (v) any liability for foreign,
federal, state, local or other taxes owed or owing by any Guarantor, (vi)
indebtedness of any Guarantor to a Subsidiary and (vii) any trade payables.
"SENIOR INDEBTEDNESS" means the principal of, premium, if any,
interest (including interest accruing after the filing of a petition
initiating any proceeding under any state, federal or foreign bankruptcy law
whether or not allowable as a claim in such proceeding), Additional Amounts,
if any, and all obligations of every nature of the Company from time to time
owed under any Indebtedness of the Company (except as otherwise provided in
this definition), whether outstanding on the Issue Date or thereafter
created, incurred or assumed, unless, in the case of any particular
Indebtedness, the instrument creating or evidencing the same or pursuant to
which the same is outstanding expressly provides that such Indebtedness shall
not be senior in right of payment to the Notes. Without limiting the
generality of the foregoing, "Senior Indebtedness" shall include the
principal of (and premium, if any), interest (including interest accruing
after the filing of a petition initiating any proceeding under any state,
federal or foreign bankruptcy laws whether or not allowable as a claim in
such proceeding), Additional Amounts, if any, and all other obligations of
every nature of the Company from time to time owed under the Credit
Facilities (including, without limitation, agency fees, commitment fees and
letter of credit fees); PROVIDED, HOWEVER, that any indebtedness under any
refinancing, refunding or replacement of the Credit Facilities shall not
constitute Senior Indebtedness to the extent that the Indebtedness thereunder
is by its express terms subordinate to any other Indebtedness of the Company.
Notwithstanding the foregoing, "Senior Indebtedness" shall not include any of
the following (whether or not constituting Indebtedness under this
Indenture): (i) Indebtedness evidenced by thc Securities or the 12 3/4 %
Notes, (ii) Indebtedness that, by its express terms, is subordinate or junior
in right of payment to any Indebtedness of the Company, (iii) Indebtedness
which, when incurred and without respect to any election under Section
1111(b) of Title 11, United States Bankruptcy Code of 1978, as amended, is
without recourse to the Company, (iv) Indebtedness which is represented by
Redeemable Capital Stock, (v) any liability for foreign, federal, state,
local or other taxes owed or owing by the Company, (vi) Indebtedness of the
Company to a Subsidiary, and (vii) any trade payables.
"SENIOR SUBORDINATED GUARANTOR OBLIGATIONS" means any
principal of, premium, if any, or interest on the Securities payable pursuant
to the terms of a Guarantee of the Securities or upon acceleration, including
any amounts received upon the exercise of rights of rescission or other
rights of action (including claims for damages) or otherwise, to the extent
relating to the purchase price of the Securities or other amounts
corresponding to such principal of, premium, if any, interest or Additional
Amounts, if any, on the Securities.
"SENIOR SUBORDINATED OBLIGATIONS" means any principal of,
premium, if any, interest or Additional Amounts, if any, on the Securities
payable pursuant to the terms of the Securities or upon acceleration,
including any amounts received upon the exercise of rights of rescission or
other rights of action (including claims for damages) or otherwise, to the
extent relating to the purchase price of the Securities or amounts
corresponding to such principal, premium, if any, interest or Additional
Amounts, if any, on the Securities.
18
"SHELF REGISTRATION STATEMENT" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination,
any Restricted Subsidiary that, together with its Subsidiaries, (i) for the
most recent fiscal year of the Company, accounted for more than 10% of the
Consolidated revenues of the Company or (ii) as of the end of such fiscal
year, was the owner of more than 10% of the Consolidated assets of the
Company, all as set forth on the most recently available Consolidated
financial statements of the Company for such fiscal year.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 309.
"STATED MATURITY" when used with respect to any Indebtedness
or any installment of interest thereon, means the dates specified in such
Indebtedness as the fixed date on which the principal of such Indebtedness or
such installment of interest is due and payable.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of the Company
or a Guarantor subordinated in right of payment to the Notes or a Guarantee
of the Notes, as the case may be.
"SUBSIDIARY" means any Person a majority of the equity
ownership or the Voting Stock of which is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries.
"TEMPORARY CASH INVESTMENTS" means (i) any evidence of
Indebtedness with a maturity of one year or less and issued by the United
States of America, or an instrumentality or agency thereof and guaranteed
fully as to principal, premium, if any, and interest by the United States of
America, (ii) any certificate of deposit with a maturity of one year or less
and issued by, or a time deposit of, a commercial banking institution that is
a member of the Federal Reserve System and that has combined capital and
surplus and undivided profits of not less than $500.0 million whose debt has
a rating, at the time as of which any investment therein is made, of "P-1"
(or higher) according to Moody's Investors Service, Inc. ("Moody's") or any
successor rating agency or "A-1" (or higher) according to Standard & Poor's
Ratings Group ("S&P") or any successor rating agency, (iii) commercial paper
with a maturity of one year or less or industrial revenue bonds issued by a
corporation (other than an Affiliate or Subsidiary of United) organized and
existing under the laws of any state of the United States of America or the
District of Columbia with a rating, at the time as of which any investment
therein is made. of "P-1" (or higher) according to Moody's or "A-l" (or
higher) according to S&P and (iv) any money market deposit accounts issued or
offered by a domestic commercial bank having capital and surplus in excess of
$500.0 million.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act
of 1939, as amended.
"UNRESTRICTED SUBSIDIARY" means (1) any Subsidiary which at
the time of determination shall be designated an Unrestricted Subsidiary (as
designated by the Board of Directors of the Company, as provided below), (2)
any Subsidiary of an Unrestricted Subsidiary, and (3) United Stationers Hong
Kong Limited and United Worldwide Limited, each of which is a
19
corporation organized under the laws of Hong Kong. The Board of Directors may
designate any Subsidiary (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary so long as (a) neither the
Company nor any Restricted Subsidiary is directly or indirectly liable for
any Indebtedness of such Subsidiary (except pursuant to a guarantee that, if
it had been made after such designation, would have been permitted to be made
under Section 1012, including Permitted Investments), (b) no default with
respect to any Indebtedness of such Subsidiary would permit (upon notice,
lapse of time or otherwise) any holder of any other Indebtedness of the
Company or any Restricted Subsidiary having a principal amount of $25.0
million or more to declare a default on such other Indebtedness or cause the
payment thereof to be accelerated or payable prior to its stated maturity,
(c) neither the Company nor any Restricted Subsidiary has, prior to the date
of such designation, made an Investment in such Subsidiary unless the amount
of such Investment, if it had been made after the date of such designation,
would have been permitted under Section 1012 (including Permitted
Investments), (d) neither the Company nor any Restricted Subsidiary has a
contract, agreement, arrangement, understanding or obligation of any kind,
whether written or oral, with such Subsidiary other than those that might be
obtained at the time from Persons who are not Affiliates of the Company. Any
such designation by the Board of Directors shall be evidenced to the Trustee
by filing a Board Resolution with the Trustee giving effect to such
designation and, for purposes of Section 1012, shall constitute the making of
an Investment in such Unrestricted Subsidiary as provided under the
definition of Investment. The Board of Directors may designate any
Unrestricted Subsidiary as a Restricted Subsidiary if immediately after
giving effect to such designation there would be no Default under this
Indenture and the Company could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness) pursuant to Section 1011.
"VOTING STOCK" means stock of the class or classes pursuant to
which the holders thereof have the general voting power under ordinary
circumstances to elect at least a majority of the board of directors,
managers or trustees of a corporation (irrespective of whether or not at the
time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary all the Capital
Stock of which (other than directors' qualifying shares or a DE MINIMIS
number of shares required, under applicable law, to be owned by foreign
nationals) is owned by the Company or another Wholly Owned Subsidiary; and
"RESTRICTED WHOLLY OWNED SUBSIDIARY" means a Wholly Owned Subsidiary that is
a Restricted Subsidiary.
"1998 RECEIVABLES SECURITIZATION PROGRAM" means the Company's
receivables securitization program contemplated by the certain United
Stationers Receivables Master Trust Pooling Agreement, dated as of April 3,
1998, among USS Receivables Company, Ltd., the Company and The Chase
Manhattan Bank, and that certain Series 1998-1 supplement thereto.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant, if compliance therewith
constitutes a condition precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent,
20
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be furnished.
Every certificate with respect to compliance with a condition
or covenant provided for in this Indenture (other than pursuant to Section
1008(a)) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, 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 complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantors may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such certificate
or Opinion of Counsel may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantors stating that the information with
respect to such factual matters is in the possession of the Company or the
Guarantors, unless such counsel has actual knowledge that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially
21
similar tenor signed by such Holders in person or by agents duly appointed in
writing; and, except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution, by an attestation of another authorized officer or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient
proof of authority. The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 10 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; PROVIDED that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
six months after the record date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
22
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Trustee Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders by the Company, the Guarantors or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall
be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be
impracticable to mail notice of any event to Holders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice for every purpose hereunder.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by each of the Company and the Guarantors shall
bind their respective successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in
this Indenture or in the Securities 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.
23
SECTION 110. BENEFITS OF INDENTURE. Nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto, any Paying Agent, any Securities Registrar and
their successors hereunder, and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York applicable to contracts to be performed entirely in
that state.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, or Stated Maturity or Maturity of any Security
shall not be a Business Day, then (notwithstanding any other provision of
this Indenture or of the Securities) payment of interest or Additional
Amounts, if any, or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date, or at
the Stated Maturity or Maturity; PROVIDED that no additional interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, Stated Maturity or Maturity, as the case may be, through such next
succeeding Business Day.
SECTION 113. NO RECOURSE AGAINST OTHERS. No director,
officer, employee or stockholder, as such, of the Company or of a Guarantor
shall have any liability for any obligations of thc Company or a Guarantor
under the Securities or this Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a
Security, each Holder shall waive and release all such liability. The waiver
and release shall be part of the consideration for the issue of the
Securities.
SECTION 114. MISCELLANEOUS. The parties hereto 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. Notwithstanding any
provision of this Indenture, Securities may only be redeemed or repurchased
by the Company or any Guarantor in integral multiples of $1,000.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY. The Initial Securities shall
be known as the "8/ /% Senior Subordinated Notes due 2008" and the Exchange
Securities and the Private Exchange Securities shall be known as the "8/ /%
Senior Subordinated Notes due 2008," in each case, of the Company. The
Securities and the Trustee's certificate of authentication shall be in
substantially the forms annexed hereto as Exhibit A, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or the
Depositary or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
Any portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Security.
Each Security shall be dated the date of its authentication.
24
The terms and provisions contained in the form of the
Securities annexed hereto as Exhibit A shall constitute, and are hereby
expressly made, a part of this Indenture. To the extent applicable, the
Company, 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.
Initial Securities offered and sold to Qualified Institutional
Buyers in the United States of America ("RULE 144A SECURITIES") shall be
issued on the Issue Date, and Additional Securities offered and sold to
Qualified Institutional Buyers in the United States of America shall be
issued, in the form of a permanent global security, without interest coupons,
substantially in the form set forth in Exhibit A, with such legends as may be
required by Section 202 (the "RULE 144A GLOBAL SECURITY") deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company, with
the Guarantees of the Guarantors endorsed thereon and authenticated by the
Trustee as hereinafter provided. The Rule 144A Global Security may be
represented by more than one certificate, if so required by the Depositary's
rules regarding the maximum principal amount to be represented by a single
certificate. The aggregate principal amount of the Rule 144A Global Security
may from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee, as
hereinafter provided.
Initial Securities offered and sold in offshore transactions
to Non-U.S. Persons ("REGULATION S SECURITIES") in reliance on Regulation S
shall be issued on the Issue Date, and Additional Securities offered and sold
in offshore transactions to Non-U.S. Persons in reliance on Regulation S
shall be issued, in the form of a permanent global Security, without interest
coupons, substantially in the form set forth in Exhibit A, with such legends
as may be required by Section 202 (the "REGULATION S GLOBAL SECURITY"). The
Regulation S Global Security will be deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company, with the Guarantees of the
Guarantors endorsed thereon and authenticated by the Trustee as hereinafter
provided. The Regulation S Global Security may be represented by more than
one certificate, if so required by the Depositary's rules regarding the
maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Regulation S Global Security may from time
to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Initial Securities offered and sold to Institutional
Accredited Investors in the United States of America ("INSTITUTIONAL
ACCREDITED INVESTOR SECURITIES") shall be issued, and Additional Securities
offered and sold to Institutional Accredited Investors in the United States
of America shall be issued, in the form of a permanent global Security
substantially in the form set forth in Exhibit A, with such legends as may be
required by Section 202 (an "INSTITUTIONAL ACCREDITED INVESTOR GLOBAL
SECURITY") deposited with the Trustee, as custodian for the Depositary, duly
executed by the Company, with the Guarantees of the Guarantors endorsed
thereon and authenticated by the Trustee as hereinafter provided. The
Institutional Accredited Investor Global Security may be represented by more
than one certificate, if so required by the Depositary's rules regarding the
maximum principal amount to be represented by a single certificate. The
aggregate principal amount of the Institutional Accredited Investor Global
Security may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary or its
nominee, as hereinafter provided.
25
The Rule 144A Global Security, the Regulation S Global
Security and the Institutional Accredited Investor Global Security are
sometimes collectively herein referred to as the "GLOBAL SECURITIES."
The definitive Securities shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner,
all as determined by the officers of the Company and the Guarantors executing
such Securities, as evidenced by their execution of such Securities.
SECTION 202. RESTRICTIVE LEGENDS. Unless and until (i) a
Private Exchange Security is sold under an effective Registration Statement
or (ii) an Initial Security (or an Additional Security, to the extent not
sold by the Company pursuant to an effective registration statement under the
Securities Act) is exchanged for an Exchange Security in connection with an
effective Registration Statement, in each case pursuant to the Registration
Rights Agreement (or another registration rights agreement with respect to
the Additional Securities), the Rule 144A Global Security and the
Institutional Accredited Investor Global Security representing such
Securities shall bear the following legend (the "PRIVATE PLACEMENT LEGEND")
on the face thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF
THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY
AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION
STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D)
PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7)
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT,
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE
IN A MINIMUM PRINCIPAL AMOUNT OF $250,000, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO OR FOR OFFER OR SALE IN
26
CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO
REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE FOREGOING
CLAUSE (E), A CERTIFICATE OF TRANSFER (A FORM OF WHICH MAY BE OBTAINED FROM
THE ISSUER OR THE TRUSTEE) COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
ISSUER AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
Until the expiration of the restricted period (as defined in
Regulation S), which commences on (and including) the later of (a) the day
upon which the Initial Securities or Additional Securities, as the case may
be, were offered to Persons other than distributors (as defined in Regulation
S) in reliance on Regulation S or (b) the Issue Date or the date of the
closing of the offering of Additional Securities, as the case may be, and
expires 40 consecutive days thereafter (the "RESTRICTED PERIOD"), the
Regulation S Global Security shall bear the following legend on the face
thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO OR FOR THE ACCOUNT
OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS NOT A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2) BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY,
PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO
YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON
WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE ISSUER, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE
THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR", IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF
$250,000, FOR
27
INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION
WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM, AND IN THE CASE OF THE FOREGOING
CLAUSE (E), A CERTIFICATE OF TRANSFER (A FORM OF WHICH MAY BE OBTAINED FROM
THE ISSUER OR THE TRUSTEE) COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
ISSUER AND THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS
BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE SECURITIES
ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S)
AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
The Global Securities shall also bear the following legend on
the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY 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 REPRESENTATIVE
OF DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTIONS 306 AND 307 OF THE INDENTURE.
28
ARTICLE THREE
THE SECURITIES
SECTION 301. TITLE AND TERMS. The aggregate principal amount
of Initial Securities which may be authenticated and delivered under this
Indenture is limited to $100.0 million, and, subject to compliance with the
covenants contained in this Indenture, including Section 1011 as a new
incurrence of Indebtedness by the Issuers, the aggregate principal amount of
Additional Securities which may be authenticated and delivered under this
Indenture is limited to $100.0 million, except in each case for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 303, 304, 305, 306,
906, 1010, 1016 or 1108 (including Exchange Securities and Private Exchange
Securities).
The Initial Securities and the Additional Securities shall be
known and designated as the "8/ /% Senior Subordinated Notes due 2008," and the
Exchange Securities and the Private Exchange Securities shall be known and
designated as the "8/ /% Senior Subordinated Notes due 2008," in each case, of
the Company. The Stated Maturity of the Securities shall be April 15, 2008,
and they shall bear interest at the rate of 8.375% per annum from April 15,
1998, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, payable on October 15, 1998 and semiannually
thereafter on April 15 and October 15 in each year and at said Stated
Maturity, until the principal thereof is paid or duly provided for.
The principal of (and premium, if any, on), interest and
Additional Amounts, if any, on the Securities shall be payable at the office
or agency of the Company maintained for such purpose as provided in Section
1002; PROVIDED, HOWEVER, that, at the option of the Company, interest may be
paid by (i) check mailed to addresses of the Persons entitled thereto as such
addresses shall appear on the Security Register or (ii) wire transfer to an
account located in the United States maintained by the payee.
The Securities shall be redeemable as provided in Article
Eleven.
SECTION 302. DENOMINATIONS. The Securities shall be issuable
only in registered form without coupons and only in denominations of $1,000
and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman,
its President or a Vice President, and attested by its Secretary, an
Assistant Secretary or any Vice President. The signature of any of these
officers on the Securities may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities bearing the manual or facsimile Signatures of
individuals who were, at the time such Securities were executed by such
individuals, the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
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At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by
the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein duly executed by the Trustee by manual signature of an
authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
In case the Company shall be consolidated or merged with or
into any other Person or shall convey, transfer, lease or otherwise dispose
of its properties and assets substantially as an entirety to any Person, and
the successor Person resulting from such consolidation, or surviving such
merger, or into which the Company shall have been merged, or the Person which
shall have received a conveyance, transfer, lease or other disposition as
aforesaid, shall have executed an indenture supplemental hereto with the
Trustee pursuant to Article Eight, any of the Securities authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the
successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name
of a successor Person pursuant to this Section in exchange or substitution
for or upon registration of transfer of any Securities, such successor
Person, at the option of the Holders but without expense to them, shall
provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation
of definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002, without charge to the Holder. Upon surrender for
cancellation of any
30
one or more temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount
of definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes referred to as the "SECURITY REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. At all reasonable
times, the Security Register shall be open to inspection by the Trustee. The
Trustee is hereby initially appointed as security registrar (the "REGISTRAR"
or "SECURITY REGISTRAR") for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities
of any authorized denomination or denominations of a like aggregate principal
amount.
Furthermore, any Holder of a Global Security shall, by
acceptance of such Global Security, agree that transfers of beneficial
interest in such Global Security may be effected only through a book-entry
system maintained by the Holder of such Global Security (or its agent), and
that ownership of a beneficial interest in the Security shall be required to
be reflected in book entry.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination and of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange
(including an exchange of Initial Securities or Additional Securities for
Exchange Securities or Private Exchange Securities), the Company shall
execute, the Guarantors shall endorse and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive; PROVIDED that no exchange of Initial Securities or Additional
Securities for Exchange Securities shall occur until the Exchange Offer
Registration Statement or another applicable registration statement shall
have been declared effective by the Commission and the Initial Securities or
Additional Securities to be exchanged for Exchange Securities or Private
Exchange Securities shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company and the
Guarantors, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (unless not required by the Company or the
Security Registrar) be duly endorsed,
31
or be accompanied by a written instrument of transfer, in form satisfactory
to the Company and the Security Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 906,
1010, 1016 or 1108 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business 15 days before the selection of Securities to be redeemed under
Section 1104 and ending at the close of business on the day of mailing of the
relevant notice of redemption, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 306. BOOK-ENTRY PROVISIONS FOR GLOBAL SECURITIES.
(a) Each Global Security initially shall (i) be registered in the name of
the Depositary for such global Security or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii)
bear legends as set forth in Section 202.
Subject to Section 306(f), members of, or participants in, the
Depositary ("AGENT MEMBERS") shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary, or the
Trustee as its custodian, or under such Global Security, and the Depositary
may be treated by the Company, the Guarantors, the Trustee and any agent of
the Company, the Guarantors or the Trustee as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Guarantors the Trustee or any
agent of the Company, the Guarantors or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by the
Depositary or shall impair, as between the Depositary and its Agent Members,
the operation of customary practices governing the exercise of the rights of
a holder of any Security.
(b) Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the
Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Global Security may be transferred in accordance with
the rules and procedures of the Depositary and the provisions of Section 307.
Beneficial owners may obtain Certificated Securities in exchange for their
beneficial interests in a Global Security upon request in accordance with the
Depositary's and the Security Registrar's procedures. In addition,
Certificated Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security and a successor depositary is not
appointed by the Company within 90 days of such notice, (ii) the Company
executes and delivers to the Trustee and Registrar an Officers' Certificate
stating that such Global Security shall be so exchangeable or (iii) an Event
of Default has occurred and is continuing and the Registrar has received a
request from the Depositary.
32
(c) In connection with any transfer of a portion of the
beneficial interest in a Global Security to beneficial owners who are
required to hold Certificated Securities pursuant to subsection (b) of this
Section, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of such Global Security in an amount equal
to the principal amount of the beneficial interest in such Global Security to
be transferred, and the Company shall execute, and the Trustee shall
authenticate and deliver, one or more Certificated Securities of like tenor
and amount.
(d) In connection with the transfer of an entire Global
Security to beneficial owners who are required to hold Certificated
Securities pursuant to the fourth sentence of paragraph (b) of this Section,
such Global Security shall be surrendered to the Trustee for cancellation,
and the Company shall execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in such Global Security, an equal aggregate
principal amount of Certificated Securities of authorized denominations.
(e) Any Certificated Security delivered in exchange for an
interest in a Global Security pursuant to paragraph (c) or paragraph (d) of
this Section shall, except as otherwise provided by paragraph (c) of Section
307, bear the applicable legends regarding transfer restrictions applicable
to the Certificated Security set forth in Section 202.
(f) The registered holder of a Global Security may grant
proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Securities,
which proxies or authorizations shall be effective notwithstanding the second
paragraph of Section 306(a).
SECTION 307. SPECIAL TRANSFER PROVISIONS. (a) The following
provisions shall apply with respect to any proposed transfer of a Rule 144A
Security or an Institutional Accredited Investor Security prior to the
expiration of the Resale Restriction Termination Date (as defined in Section
202 hereof):
(i) a transfer of a Rule 144A Security or an
Institutional Accredited Investor Security or a beneficial interest therein
to a QIB shall be made upon the representation of the transferee that it is
purchasing the Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any such
account is a "qualified institutional buyer" within the meaning of Rule 144A
under the Securities Act and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company and the Guarantors as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and
that it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration provided by
Rule 144A;
(ii) a transfer of a Rule 144A Security or an Institutional
Accredited Investor Security or a beneficial interest therein to an
Institutional Accredited Investor shall be made upon receipt by the Trustee
or its agent of a certificate substantially in the form set forth in Exhibit
B annexed hereto from the proposed transferee and, if requested by the
Company or the Trustee,
33
the delivery of an opinion of counsel, certifications and/or other
information satisfactory to each of them; and
(iii) a transfer of a Rule 144A Security or an Institutional
Accredited Investor Security or a beneficial interest therein to a Non-U.S.
Person shall be made upon receipt by the Trustee or its agent of a
certificate substantially in the form set forth in Exhibit C annexed hereto
from the proposed transferee and, if requested by the Company or the Trustee,
the delivery of an opinion of counsel, certifications and/or other
information satisfactory to each of them.
(b) The following provisions shall apply with respect to any
proposed transfer of a Regulation S Security prior to the expiration of the
Restricted Period:
(i) a transfer of a Regulation S Security or a
beneficial interest therein to a QIB shall be made upon the representation of
the transferee that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act and is aware that the sale to
it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company and the Guarantors as the
undersigned has requested pursuant to Rule 144A or has determined not to
request such information and that it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A;
(ii) a transfer of a Regulation S Security or a
beneficial interest therein to an Institutional Accredited Investor shall be
made upon receipt by the Trustee or its agent of a certificate substantially
in the form set forth in Exhibit B annexed hereto from the proposed
transferee and, if requested by the Company or the Trustee, the delivery of
an opinion of counsel, certifications and/or other information satisfactory
to each of them; and
(iii) a transfer of a Regulation S Security or a
beneficial interest therein to a Non-U.S. Person shall be made upon, if
requested by the Company or the Trustee, the delivery of an opinion of
counsel, certifications and/or other information satisfactory to each of them.
Prior to or on the expiration of the Restricted Period,
beneficial interests in a Regulation S Global Security may only be held
through Morgan Guaranty Trust Company of New York, Brussels Office, as
operator of the Euroclear System ("Euroclear") or Cedel Bank, societe anonyme
("Cedel") (as indirect participants in DTC) or another agent member of
Euroclear and Cedel acting for and on behalf of them, unless exchanged for
interests in the Rule 144A Global Security or the Institutional Accredited
Investor Global Security in accordance with the certification requirements
hereof. During the Restricted Period, interests in the Regulation S Global
Security, if any, may be exchanged for interests in the Rule 144A Global
Security, the Institutional Accredited Investor Global Security or for
Certificated Securities only in accordance with the certification
requirements described in this Section 307.
After the expiration of the Restricted Period, interests in
the Regulation S Security may be transferred without requiring the
certification set forth in Exhibit C annexed hereto or any additional
certification.
34
(c) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange or
replacement of Securities not bearing the Private Placement Legend, the
Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that
bear the Private Placement Legend unless there is delivered to the Registrar
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee
to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(d) GENERAL. By its acceptance of any Security bearing the
Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
(e) If requested, the Company shall deliver to the Trustee an
Officer's Certificate setting forth the dates on which the Restricted Period
terminates.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 306 or this Section
307. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable written notice to the Registrar.
(f) NO OBLIGATION OF THE TRUSTEE. (i) The Trustee shall have
no responsibility or obligation to any beneficial owner of a Global Security,
a member of, or a participant in the Depositary or other Person with respect
to any ownership interest in the Securities, with respect to the accuracy of
the records of the Depositary or its nominee or of any participant or member
thereof or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than the Depositary) of any notice
(including any notice of redemption) or the payment of any amount, under or
with respect to such Securities. All notices and communications to be given
to the Holders and all payments to be made to Holders under the Securities
shall be given or made only to the registered Holders (which shall be the
Depositary or its nominee in the case of a Global Security). The rights of
beneficial owners in any Global Security in global form shall be exercised
only through the Depositary subject to the applicable rules and procedures of
the Depositary. The Trustee may conclusively rely and shall be fully
protected and indemnified pursuant to Section 606 in relying upon information
furnished by the Depositary with respect to any beneficial owners, its
members and participants.
(ii) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including without limitation
any transfers between or among Depositary participants, members or beneficial
owners in any Global Security) other than to require delivery of such
certificates and other documentation of 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.
35
(iii) Each Holder of a Security agrees to indemnify the
Company and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder's Security in violation of
any provision of this Indenture and/or applicable United States federal or
state securities law.
SECTION 308. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. If (i) any mutilated Security is surrendered to the Trustee, or
(ii) the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee (at the expense of the Holder) such security or
indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment by the Holder of such mutilated, destroyed,
lost or stolen Security of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and any Guarantor, whether
or not the destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 309. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in
whose name such Security is registered at the close of business on the
Regular Record Date immediately prior to such Interest Payment Date at the
office or agency of the Company maintained for such purpose pursuant to
Section 1002; PROVIDED, HOWEVER, that each installment of interest may at the
Company's option be paid by (i) mailing a check for such interest, payable to
or upon the written order of the Person entitled thereto pursuant to Section
310, to the address of such Person as it appears in the Security Register or
(ii) wire transfer to an account located in the United States maintained by
the payee.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any interest Payment Date shall
forthwith cease to be payable to the Holder on
36
the Regular Record Date by virtue of having been such Holder, and such
defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate borne by the Securities (such defaulted interest and
interest thereon herein collectively called "DEFAULTED INTEREST") may be paid
by the Company, at its election in each case, as provided in clause (1) or
(2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities are registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall be
not more than 30 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date, and in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given in the manner
provided for in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall not be deemed impracticable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 310. PERSONS DEEMED OWNERS. Prior to the due
presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any, on),
interest and Additional Amounts, if any, on such Security (subject to
Sections 305 and 309) and for all other purposes whatsoever, whether or nor
such Security be overdue, and none of the Company, the Trustee or any agent
of the Company or the Trustee shall be affected by notice to the contrary.
37
SECTION 311. CANCELLATION. All Securities surrendered for
payment, redemption, registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Securities unless and until the same are surrendered to
the Trustee for cancellation. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be returned to the Company.
SECTION 312. COMPUTATION OF INTEREST. Interest on the
Securities shall be computed on the basis of a 360 day year of twelve 30-day
months.
SECTION 313. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" or "CINS" numbers (if then generally in use) and,
if so, the Trustee shall use "CUSIP" or "CINS" numbers, as the case may be,
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 Securities or as contained in any notice of
a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" or "CINS" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture will be discharged and shall cease to be of further effect (except
as to surviving rights of registration of transfer or exchange of the
Securities, as expressly provided for herein) as to all Outstanding
Securities and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(1) either
(a) all the Securities theretofore authenticated and
delivered (other than lost, stolen or destroyed Securities which have been
replaced or paid as provided in Section 308 have been cancelled or have been
delivered to the Trustee for cancellation; or
(b) all Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable,
38
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company or any Guarantor has irrevocably deposited or caused to be
deposited with the Trustee funds in an amount sufficient to pay and discharge
the entire Indebtedness on the Securities not theretofore delivered to the
Trustee for cancellation, including principal of, premium, if any, accrued
interest and any Additional Amounts at such Stated Maturity or redemption
date;
(2) the Company or any Guarantor has paid or caused to be
paid all other sums payable under this Indenture by the Company and each
Guarantor, including all fees and expenses of the Trustee; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that (a) all conditions
precedent hereunder relating to the satisfaction and discharge of this
Indenture have been complied with and (b) such satisfaction and discharge
will not result in a breach or violation of, or constitute a default under,
this Indenture.
Notwithstanding satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 606 and, if money
shall have been deposited with the Trustee pursuant to subclause (b) of
clause (1) of this Section, the obligations of the Trustee under Section 402
and the last paragraph of Section 1003 shall survive any such satisfaction
and discharge.
SECTION 402. APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with
the Trustee pursuant to Section 401 shall be held in trust and applied by it,
in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any), interest
and Additional Amounts, if any, for whose payment such money has been
deposited with the Trustee; but such money need not be segregated from other
funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 401 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and the Guarantors' obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401; PROVIDED that if the Company
and the Guarantors have made any payment of principal of, premium, if any,
interest or Additional Amounts, if any, on any Securities because of the
reinstatement of such obligations, the Company and the Guarantors shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or Government Obligations held by the Trustee or
Paying Agent.
39
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "EVENT OF DEFAULT," wherever
used herein, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) there shall be a default in the payment of any interest
on any Security when it becomes due and payable, and such default shall
continue for a period of 30 days, whether or not such payment is prohibited
under the provisions of Article Fourteen or Article Fifteen;
(2) there shall be a default in the payment of the principal
of (or premium, if any, on) any Security at its Maturity (upon acceleration,
optional or mandatory redemption, required repurchase or otherwise), whether
or not such payment is prohibited under the provisions of Article Fourteen or
Article Fifteen;
(3) (a) there shall bc a default in the performance, or
breach, of any covenant or agreement of the Company, United or any Guarantor
under this Indenture (other than a default in the performance of, or breach
of, a covenant or agreement which is specifically dealt with in clause (1) or
(2) or in clauses (b), (c) and (d) of this clause (3)) and such default or
breach shall continue for a period of 30 days after written notice has been
given, by certified mail, (x) to the Company by the Trustee or (y) to the
Company and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Outstanding Securities, specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" under this Indenture; (b) there shall be a default in the
performance of, or breach of, the provisions described in Article Eight; (c)
the Company shall have failed to make or consummate an Offer in accordance
with the provisions of Section 1016; or (d) the Company shall have failed to
make or consummate a Change of Control Offer in accordance with the
provisions of Section 1010;
(4) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company or any
Restricted Subsidiary then has outstanding indebtedness in excess of $25.0
million principal amount in the aggregate and, if not already matured at its
final maturity in accordance with its terms, such Indebtedness shall have
been accelerated;
(5) any Guarantee shall for any reason cease to be, or shall
be asserted in writing by such Guarantor, United or the Company not to be, in
full force and effect and enforceable in accordance with its terms (other
than a Guarantee of a Subsidiary that is not a Significant Subsidiary and has
Consolidated Net Worth of less than $1.0 million at such time) or any
Restricted Subsidiary shall fail to Guarantee the Securities as required by
Section 1017;
(6) one or more judgments, orders or decrees for the payment
of money in excess of $25.0 million, either individually or in the aggregate
(net of amounts covered by
40
insurance, bond, surety or similar instrument), shall be entered against the
Company, United or any Restricted Subsidiary, or any of their respective
properties, and shall not be discharged and either (a) any creditor shall
have commenced an enforcement proceeding upon such judgment, order or decree
or (b) there shall have been a period of 60 consecutive days during which a
stay of enforcement of such judgment or order, by reason of an appeal or
otherwise, shall not be in effect;
(7) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the Company,
United or any Significant Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law or (b) a decree or order adjudging the
Company, United or any Significant Subsidiary bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company, United or any Significant Subsidiary under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company, United or any Significant Subsidiary or of any substantial part
of their respective properties, or ordering the winding up or liquidation of
their affairs, and any such decree or order for relief shall continue to be
in effect, or any such other decree or order shall be unstayed and in effect,
for a period of 60 consecutive days; or
(8) (a) the Company, United or any Significant Subsidiary
commences a voluntary case or proceeding under any applicable Bankruptcy Law
or any other case or proceeding to be adjudicated bankrupt or insolvent, (b)
the Company, United or any Significant Subsidiary consents to the entry of a
decree or order for relief in respect of the Company, United or any
Significant Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, (c) the Company, United or any
Significant Subsidiary files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, (d) the
Company, United or any Significant Subsidiary (x) consents to the filing of
such petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Company, United or any Significant Subsidiary or of any substantial part
of their respective properties or (y) makes an assignment for the benefit of
creditors or (e) the Company, United or any Significant Subsidiary takes any
corporate action in furtherance of any such actions in this clause (8).
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default (other than as specified in Section 501(7)
or 501(8)) shall occur and be continuing, the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Securities then
Outstanding may, and the Trustee at the request of such Holders shall,
declare all unpaid principal of (and premium, if any, on), accrued interest
and Additional Amounts, if any, on all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if
given by the Holders of the Securities); PROVIDED that so long as the Credit
Facilities are in effect, such declaration shall not become effective until
the earlier of (a) five Business Days after receipt of such notice of
acceleration from the Holders or the Trustee by the agent under the Credit
Facilities or (b) acceleration of the Indebtedness under the Credit
Facilities. Thereupon such principal shall become immediately due and
payable, and the Trustee may, at its discretion, proceed to protect and
enforce the rights of the Holders of Securities by appropriate judicial
proceeding. If an Event of Default specified in Section 501(7) or 501(8)
41
occurs, then all the Securities shall IPSO FACTO become and be immediately
due and payable, in an amount equal to the principal amount of the
Securities, together with accrued and unpaid interest, if any, to the date
the Securities become due and payable, without any declaration or other act
on the part of the Trustee or any Holder. The Trustee or, if notice of
acceleration is given by the Holders, the Holders shall give notice to the
agent under the Credit Facilities of any such acceleration; PROVIDED that
failure to give such notice shall not affect the validity thereof.
At any time after a declaration of acceleration has been made,
but before a judgment or decree for payment of the money due has been
obtained by the Trustee, the Holders of a majority in aggregate principal
amount of Securities Outstanding, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(a) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel,
(b) all overdue interest on all Securities, and
(c) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities;
(2) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513; and
(3) the rescission will not conflict with any judgment or
decree of a court of competent jurisdiction.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(a) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the
Trustee for the benefit of the Holders of such Securities, the whole amount
then due and payable on such Securities for principal (and premium, if any),
interest and Additional Amounts, if any, and interest on any overdue
principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of
interest and Additional Amounts, if any, at
42
the rate borne by the Securities, and, in addition thereto, 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, except costs and expenses incurred as
a result of the Trustee's negligence or bad faith.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company, any Guarantor, or any other obligor
upon the Securities and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company, any
Guarantor, or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the
rights of the Holders by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities shall
then be due and payable as therein expressed or by declaration or otherwise
and irrespective of whether the Trustee shall have made any demand on the
Company for the payment of overdue principal, premium, if any, interest or
Additional Amounts, if any) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect of
the Securities and to file such 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, unless incurred as a result of the Trustee's
negligence or bad faith) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay the Trustee any amount due it for the reasonable
- -compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, unless incurred as a result of the Trustee's negligence
or bad faith, and any other amounts due the Trustee under Section 606.
43
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name and as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders in respect
of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates filed by the Trustee and, in case of
the distribution of such money on account of principal (or premium, if any)
or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 606;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any, on,), interest and Additional Amounts, if
any, on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for
principal (and premium, if any), interest and Additional Amounts, if any,
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. LIMITATION ON SUITS. No Holder shall have any
right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 30 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
44
(5) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period by the Holders of a
majority or more in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders, or to obtain or to seek to obtain priority or preference
over any other Holders or to enforce any right under this Indenture, except
in the manner herein provided and for the equal and ratable benefit of all
the Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM , INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any
other provision in this Indenture, the Holder of any Security shall have the
right, which is absolute and unconditional, to receive payment, as provided
herein (including, if applicable, Article Twelve) and in such Security of the
principal of (and premium, if any, on), interest (subject to Section 309) and
Additional Amounts, if any, on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 308, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any Security to exercise any
right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 512. CONTROL BY HOLDERS. The Holders of not less
than a majority in principal amount of the Outstanding Securities shall have
the right to direct the time, method and
45
place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, PROVIDED that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) subject to the provision of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders not
consenting.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not
less than a majority in principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past default hereunder
and its consequences, except a default
(1) in respect of the payment of the principal of (or premium,
if any, on), interest and Additional Amounts, if any, on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS. The Company
and each Guarantor covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company and each
Guarantor (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or the Securities or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section does not apply to a suit by the Trustee or a
suit by Holders of more than 10% in principal amount of the Securities.
46
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any Default hereunder, the Trustee shall transmit in the manner
and to the extent provided in TIA Section 313(c), notice of such Default
hereunder known to the Trustee, unless such Default shall have been cured or
waived; PROVIDED, HOWEVER, that, except in the case of a Default in the
payment of the principal of (or premium, if any, on), interest or Additional
Amounts, if any, on any Security or in the payment of any sinking fund
installment, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of
the Holders.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document whether in its original or facsimile
form believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently evidenced by
a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a manner be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
gross negligence or bad faith on its part, rely conclusively upon an
Officers' Certificate;
(4) the Trustee may consult with counsel selected by it and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or
47
investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney at the sole expense of the Company and
shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture;
(9) the Trustee shall not be required to take notice or be
deemed to have notice of any Default under this Indenture except failure by
the Company to cause to be made any of the payments to the Trustee required
to be made by Article Three hereof unless the Trustee shall be specifically
notified in writing of such default by the Company, or by Holders of at least
10% in principal amount of the Outstanding Securities. All notices or the
instruments required by this Indenture to be delivered to the Trustee must,
in order to be effective, be delivered to a Responsible Officer of the
Trustee at the Corporate Trust Office, and in the absence of such notice so
delivered the Trustee may conclusively assume there is no default except as
aforesaid; and
(10) if an Event of Default has occurred and is continuing,
the Trustee shall exercise the rights and powers vested in it by this
Indenture, and shall use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the
conduct of such Person's own affairs.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers.
SECTION 603. TRUSTEE NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES. The recitals contained herein and in the Securities, except
for the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Securities and perform its obligations hereunder and that
any statements made by it in a Statement of Eligibility on Form T-1 supplied
to the Company are (or when delivered, will be) true and accurate, subject to
the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by the Company of Securities or the proceeds
thereof.
SECTION 604. TRUSTEE MAY HOLD SECURITIES. The Trustee, any
Paying Agent, any Security Registrar or any other agent of the Company or of
the Trustee, in its individual or
48
any other capacity, may become the owner or pledgee of Securities and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed in writing
with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company
agrees:
(1) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall agree for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee (and any predecessor Trustee)
for, and to hold it harmless against, any and all loss, damage, claim,
liability or expense including, without limitation, taxes (other than taxes
based on the income of the Trustee) incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee
shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the performance
of such obligations of the Company, the Trustee shall have a lien prior to
the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of (and
premium, if any, on), interest or Additional Amounts, if any, on particular
Securities.
If the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(7) or Section
501(8), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA Section 310(a)(1) and shall have a combined capital and
surplus of at least $50.0 million. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
federal, state,
49
territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign promptly in the manner and with the effect
hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 609 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least
six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board
Resolution, may remove the Trustee, or (ii) subject to TIA Section 315(e),
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor trustee so appointed shall, forthwith upon
50
its acceptance of such appointment, become the successor trustee and
supersede the successor trustee appointed by the Company. If no successor
trustee shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor trustee to
the Holders of Securities in the manner provided for in Section 106. Each
notice shall include the name of the successor trustee and the address of its
Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. Every
successor trustee appointed hereunder shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor trustee all such
rights, powers and trusts.
No successor trustee shall accept its appointment unless at
the time of such acceptance such successor trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee
then in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the
Securities so authenticated with the same effect as if such successor trustee
had itself authenticated such Securities; and in case at that time any of the
Securities shall not have been authenticated, any successor trustee may, upon
receipt of a Company Order, authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor trustee; and in
all such cases such certificates shall have the full force which it is
anywhere in the Securities or in this Indenture provided that the certificate
of the Trustee shall have; PROVIDED, HOWEVER, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any
agent of either of them shall be held accountable by reason of the disclosure
of any such information as to the names and addresses of the Holders in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after
February 15 of each year commencing with the first February 15 after the
first issuance of Securities, the Trustee shall transmit to the Holders, in
the manner and to the extent provided in TIA Section 313(c), a brief report
dated as of such February 15 if required by TIA Section 313(a).
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OF ASSETS
SECTION 801. COMPANY AND EACH GUARANTOR MAY CONSOLIDATE,
ETC., ONLY ON CERTAIN TERMS. (a) The Company shall not, in a single
transaction or through a series of related transactions, consolidate with or
merge with or into any other Person or sell, assign, convey, transfer, lease
or otherwise dispose of all or substantially all of its properties and assets
as an entirety to any Person or group of affiliated Persons, or permit any of
its Restricted Subsidiaries into any such transaction or transactions if such
transaction or transactions, in the aggregate, would result in a sale,
assignment, conveyance, transfer, lease or disposal of all or substantially
all of the properties and assets of the Company and its Restricted
Subsidiaries on a Consolidated basis to any other Person or group of
affiliated Persons, unless at the time and after giving effect thereto:
(1) either
(i) the Company shall be the Continuing corporation;
or
(ii) the Person (if other than the Company)
formed by such consolidation or into which the Company or such
Subsidiary is merged or the Person which acquires by sale,
assignment, conveyance, transfer, lease or disposition of all or
substantially all of the properties and assets of the Company or
such Subsidiary, as the case may be, substantially as an entirety
(the "SURVIVING ENTITY") shall be a corporation, limited liability
company, limited partnership or business trust duly organized and
validly existing under the laws of the United States of America, any
state thereof or the District of Columbia and such Person shall
assume, by a supplemental indenture executed and delivered to the
Trustee, all the obligations of the Company, under the Securities
and this Indenture, and this Indenture shall remain in full force
and effect;
52
(2) immediately before and immediately after giving effect
to such transaction or transactions, no Default shall have occurred and be
continuing;
(3) immediately after giving effect to such transaction on
a PRO FORMA basis, the Consolidated Net Worth of the Company (for the
Surviving Entity if other than the Company) is equal to or greater than the
Consolidated Net Worth of the Company immediately prior to such transaction
or transactions;
(4) immediately before and immediately after giving effect
to such transaction on a PRO FORMA basis (on the assumption that the
transaction occurred on the first day of the four-quarter period immediately
prior to the consummation of such transaction with the appropriate
adjustments with respect to the transaction being included in such PRO FORMA
calculation), the Company (or the Surviving Entity if other than the Company)
could incur at least $1.00 of additional Indebtedness under Section 1011
(other than Permitted Indebtedness); and
(5) the Company or the Surviving Entity shall have
delivered, or caused to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an
Opinion of Counsel, each to the effect that such consolidation, merger,
transfer, sale, assignment, conveyance, lease or other transaction and the
supplemental indenture in respect thereto comply with this Indenture and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
(b) Each Guarantor shall not, and (except in the case of
United) the Company will not permit a Guarantor to, in a single transaction
or through a series of related transactions, merge or consolidate with or
into any other corporation (other than the Company or any Restricted Wholly
Owned Subsidiary) or other entity, sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of thc Guarantor's properties
and assets on a Consolidated basis to any entity (other than the Company or
any Restricted Wholly Owned Subsidiary) unless at the time and after giving
effect thereto:
(1) either
(i) such Guarantor shall be the continuing
corporation, partnership or other legal entity; or
(ii) the entity (if other than such Guarantor) formed
by such consolidation or into which such Guarantor is merged or the
entity which acquires by sale, assignment, conveyance, transfer,
lease or disposition the properties and assets of such Guarantor
shall be a corporation, partnership or other legal entity duly
organized and validly existing under the laws of the United States,
any state thereof or the District of Columbia and shall expressly
assume by a supplemental indenture, executed and delivered to the
Trustee, in a form reasonably satisfactory to the Trustee, all the
obligations of such Guarantor under its Guarantee and this
Indenture;
(2) immediately before and immediately after giving effect
to such transaction or transactions, no Default shall have occurred and be
continuing; and
53
(3) such Guarantor shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee, each stating that such consolidation,
merger, sale, assignment, conveyance, transfer, lease or disposition and such
supplemental indenture comply with this Indenture, and thereafter all
obligations of the predecessor shall terminate; PROVIDED that the foregoing
shall not apply to any Guarantor (other than United) if (A) immediately after
such merger, consolidation, sale, assignment, conveyance, transfer, lease or
other disposition, the Person surviving such merger or consolidation or the
assignee, conveyee, transferee, lessee or recipient of such other disposition
are not Subsidiaries and (B) Section 1016 of this Indenture is complied with
in connection with such transaction.
SECTION 802. SUCCESSOR SUBSTITUTED. Upon any consolidation
of the Company, United or any other Guarantor with, or merger of the Company,
United or any other Guarantor with or into, any other corporation or any
sale, assignment, conveyance, transfer, lease or other disposition of the
properties and assets of the Company (or any Guarantor), substantially as an
entirety to any Person in accordance with Section 801(a) or Section 801(b),
the successor Person formed by such consolidation or into which the Company,
United or any other Guarantor is merged or to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company, United or other Guarantor, as the case
may be, under this Indenture with the same effect as if such successor Person
had been named as the Company, United or other Guarantor, as the case may be
herein, and in the event of any such conveyance or transfer, the Company
(which term shall for this purpose mean the Person named as the "Company" in
the first paragraph of this Indenture or any successor Person which shall
theretofore become such in the manner described in Section 801(a)), United or
other Guarantor, as the case may be, except in the case of a lease, shall be
discharged of all obligations and covenants under this Indenture and the
Securities and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS. Without the consent of any Holders, the Company, when authorized by
a Board Resolution, the Guarantors and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
obligations under this Indenture and the Securities of the Company or any
Guarantor and the assumption by any such successor of the covenants of the
Company and any Guarantor contained herein and in the Securities; or
(2) to add to the covenants of the Company and the
Guarantors for the benefit of the Holders or to surrender any right or power
herein conferred upon the Company or the Guarantors; or
54
(3) to add additional Events of Default; or
(4) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee pursuant to the requirements of
Section 609; or
(5) to secure the Securities; or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED that such actions pursuant
to this clause (6) shall not adversely affect the interests of the Holders in
any material respect; or
(7) to comply with any requirement of the Commission in
connection with qualifying and maintaining the qualification of this
Indenture under the TIA.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
the Guarantors and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which the principal of
any Security or any premium or the interest or any Additional Amounts thereon
is payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof;
(2) amend, change or modify the obligation of the Company
to make and consummate an Offer with respect to any Asset Sale or Asset Sales
in accordance with Section 1016 or the obligation of the Company to make and
consummate a Change of Control Offer in the event of a Change of Control in
accordance with Section 1010, including amending, changing or modifying any
definitions with respect thereto;
(3) reduce the percentage in principal amount of
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver;
(4) modify any of the provisions of this Section or Section
513, except to increase the percentage of Outstanding Securities required for
such actions or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Security affected thereby;
55
(5) except as otherwise permitted under Article Eight
consent to the assignment or transfer by the Company or any Guarantor of any
of its rights and obligations under this Indenture; or
(6) amend or modify any of the provisions of Article
Fourteen or Article Fifteen in any manner adverse to the Holders of the
Securities.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted
by this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental Indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental Indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES. Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities so modified as to conform, in the opinion
of the Trustee and the Company, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES. Promptly
after the execution by the Company and the Trustee of any supplemental
indenture pursuant to the provisions of Section 902, the Company shall give
notice thereof to the Holders of each Outstanding Security affected, in the
manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
56
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY,
INTEREST AND ADDITIONAL AMOUNTS, IF ANY. The Company covenants and agrees
for the benefit of the Holders that it will duly and punctually pay the
principal of (and premium, if any, on), interest and Additional Amounts, if
any, on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. The Company
will maintain an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities and this Indenture may be served. The Corporate
Trust Office of the Trustee shall be such office or agency of the Company,
unless the Company shall designate and maintain some other office or agency
for one or more of such purposes. The Company will give prompt written notice
to the Trustee of any change in the location of any such office or agency. If
at any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from time to time rescind the above
designation and designate one or more other offices or agencies where the
Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind any such subsequent designation; PROVIDED,
HOWEVER, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such
other office or agency.
SECTION 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN
TRUST. If the Company shall at any time act as its own Paying Agent, it
will, on or before each due day of the principal of (and premium, if any,
on), interest or Additional Amounts, if any, on any of the Securities,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal (and premium, if any), interest or
Additional Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Securities, it will, on or before each due date of the principal of (and
premium, if any, on), interest or Additional Amounts, if any, on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any), interest or Additional Amounts, if any, so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium, interest or Additional Amounts and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
57
The Company will cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any, on), interest or Additional Amounts, if
any, on Securities in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any payment of
principal (and premium, if any), interest or Additional Amounts, if any; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of thc principal of (and
premium, if any, on), interest or Additional Amounts, if any, on any Security
and remaining unclaimed for two years after such principal (and premium, if
any), interest or Additional Amounts, if any, has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York,
reasonable notice under the circumstances that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. CORPORATE EXISTENCE. Subject to Article Eight,
and as long as any Securities remain Outstanding, each of United and the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect the corporate existence, rights (charter and
statutory) and franchises of the Company and each Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the
58
business of the Company and its Subsidiaries as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. PAYMENT OF TAXES AND OTHER CLAIMS. Each of
United and the Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all taxes,
assessments and governmental charges levied or imposed upon United, the
Company or any Subsidiary or upon the income, profits or property of United,
the Company or any Subsidiary and (b) all lawful claims for labor, materials
and supplies, which, if unpaid, might by law become a lien upon the property
of United, the Company or any Subsidiary; PROVIDED, HOWEVER, that United or
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (1) the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings or (2) the nonpayment or delayed payment of which
would not have a material adverse effect on Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES. Each of United and
the Company will cause all material properties owned by United, the Company
or any Subsidiary or used or held for use in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, betterments
and improvements thereof, all as in the judgment of United or the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent United or the Company (i) from
discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of United or the Company, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders or (ii) selling any
properties or taking any action in accordance with Article Eight or Section
1016.
SECTION 1007. INSURANCE. Each of United and the Company will
at all times keep all of its and its Subsidiaries' properties which are of an
insurable nature insured with insurers, believed by United and the Company to
be responsible, against loss or damage to the extent that property of similar
character is usually so insured by corporations similarly situated and owning
like properties.
SECTION 1008. STATEMENT BY OFFICERS AS TO DEFAULT. (a) The
Company will deliver to the Trustee, within 45 days after the end of each
fiscal quarter (or 90 days, in the case of the last fiscal quarter of each
fiscal year), a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture. Such certificate shall state that such officer has reviewed
this Indenture and believes that either (a) the Company and Guarantors are in
compliance with terms thereof or (b) the Company and Guarantors are not in
compliance with terms thereof. For purposes of this Section 1008(a), such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under
this Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company, any
59
Guarantor or any Subsidiary gives any notice or takes any other action with
respect to a claimed default (other than with respect to Indebtedness in the
principal amount of less than $1,000,000), the Company shall deliver to the
Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
(c) The Company shall deliver to the Trustee, within 90
days after the end of each of the Company's fiscal years, a certificate
signed by the Company's independent certified public accountants stating (i)
that their audit examination has included a review of the terms of this
Indenture and the Securities as they relate to accounting matters, (ii) that
they have read the most recent Officers' Certificate delivered to the Trustee
pursuant to paragraph (a) of this Section 1008 and (iii) whether, in
connection with their audit examination, anything came to their attention
that caused them to believe that the Company was not in compliance with any
of the terms, covenants, provisions or conditions of Article Ten and Section
8.01 of this Indenture as they pertain to accounting matters and, if any
Default or Event of Default has come to their attention, specifying the
nature and period of existence thereof; PROVIDED that such independent
certified public accountants shall not be liable in respect of such statement
by reason of any failure to obtain knowledge of any such Default or Event of
Default that would not be disclosed in the course of an audit examination
conducted in accordance with generally accepted auditing standards in effect
at the date of such examination.
SECTION 1009. PROVISION OF FINANCIAL STATEMENTS. Whether or
not United or the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, United and the Company will, to the extent permitted under the
Exchange Act, deliver to the Commission for filing the annual reports,
quarterly reports and other documents which United and the Company would have
been required to file with the Commission pursuant to such Section 13(a) or
15(d) if United and the Company were so subject, such documents to be filed
with the Commission on or prior to the respective dates (the "REQUIRED FILING
DATES") by which United and the Company would have been required to so file
such documents if United and the Company, were so subject (subject to a five
day grace period). United and the Company will also in any event (x) within
15 days of each Required Filing Date (subject to a five day grace period) (i)
transmit by mail to all Holders, as their names and addresses appear in the
security register, without cost to such Holders and (ii) file with the
Trustee copies of the annual reports, quarterly reports and other documents
which United and the Company would have been required to file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act if United
and the Company were subject to such Sections and (y) if filing such
documents by United and the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request, supply copies of such
documents to any prospective Holder at United's and the Company's cost. The
Company and United will also provide the information required by Rule 144A to
any Holder or prospective Holder of Securities.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein
or determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
60
SECTION 1010. PURCHASE OF NOTES UPON CHANGE IN CONTROL. (a)
If a Change of Control shall occur at any time, then the Company shall be
obligated to make an offer to purchase all of the Outstanding Notes (a
"CHANGE OF CONTROL OFFER") and the Company shall purchase all of the then
Outstanding Notes validly tendered pursuant to such Change of Control Offer,
in whole or in part in integral multiples of $1,000, at a purchase price (the
"CHANGE OF CONTROL PURCHASE PRICE") in cash in an amount equal to 101% of the
principal amount of such Notes, plus accrued and unpaid interest and
Additional Amounts, if any, to the date of purchase (the "CHANGE OF CONTROL
PURCHASE DATE"), pursuant to the procedures set forth in paragraphs (b), (c)
and (d) of this Section.
(b) Within 30 days following the date upon which the
Company becomes aware that any Change of Control has occurred, the Company
shall notify the Trustee thereof and shall give to each Holder of the
Securities in the manner provided in Section 106, a notice stating:
(l) that a Change of Control has occurred and that such
Holder has the right to require the Company to repurchase such Holder's Notes
at the Change of Control Purchase Price;
(2) the Change of Control Purchase Price and the Change of
Control Purchase Date, which shall be a Business Day no earlier than 30 days
nor later than 60 days from the date such notice is mailed, or such later
date as is necessary to comply with requirements under the Exchange Act;
(3) that any Note not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date; and
(5) the procedures that a Holder must follow to accept a
Change of Control Offer or to withdraw such acceptance.
(c) Holders electing to have Notes purchased will be
required to surrender such Securities with the execution form provided for in
Exhibit A duly executed to the Company at the address specified in the notice
at least 10 Business Days prior to the Change of Control Purchase Date.
Holders will be entitled to withdraw their election if the Company receives,
not later than three Business Days prior to the Change of Control Purchase
Date, a facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Securities delivered for purchase by the
Holder as to which his election is to be withdrawn and a statement that such
Holder is withdrawing his election to have such Notes purchased. Holders
whose Notes are purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered.
(d) The Company will comply with any applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with a Change of Control Offer.
To the extent that the provisions of any securities laws or regulations
conflict with provisions of this Section, the Company shall
61
comply with the applicable securities laws and regulations and shall not be
deemed to have breached its obligations under this Section by virtue thereof.
(e) United will not, and will not permit any Subsidiary to,
create or permit to exist or become effective any restriction (other than
restrictions in effect on the Issue Date with respect to Indebtedness
outstanding on the Issue Date and refinancings thereof and customary default
provisions) that would materially impair the ability of the Company to make a
Change of Control Offer to purchase the Notes or, if such Change of Control
Offer is made, to pay for the Notes tendered for purchase.
SECTION 1011. LIMITATION ON INDEBTEDNESS. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, create,
issue, assume, incur, guarantee, or otherwise in any manner become directly
or indirectly liable for (collectively, "INCUR") any Indebtedness (including
any Acquired Indebtedness); PROVIDED that the Company may incur Indebtedness
(including any Acquired Indebtedness) (A) if the Consolidated Fixed Charge
Coverage Ratio of the Company for the four full fiscal quarters immediately
preceding the incurrence of such Indebtedness (and for which such financial
information is available) taken as one period is at least equal to 2.00:1.00
and (B) if such Indebtedness is Subordinated Indebtedness, such Indebtedness
shall have an Average Life to Stated Maturity longer than the Average Life to
Stated Maturity of the Notes and a final Stated Maturity of principal later
than the final Stated Maturity of principal of the Notes.
(b) The foregoing limitation will not apply to the
incurrence of any of the following (collectively, "PERMITTED INDEBTEDNESS"):
(i) Indebtedness of the Company incurred pursuant to
the Credit Facilities and any other agreements or indentures
governing Senior Indebtedness outstanding at any time in an
aggregate principal amount not to exceed the greater of (x) the
sum of (I) $500.00 million and (II) if and when the 1998
Receivables Securitization Program is terminated and the Company
and its Subsidiaries have no obligation to sell Receivables and
Related Assets to any unaffiliated third party, $175.0 million
less the Program Funded Amount at such time, and (y) $150.0
million plus the Borrowing Base;
(ii) subject to Section 1017, Guarantees by
Restricted Subsidiaries of Senior Indebtedness of the Company;
PROVIDED, that such Indebtedness of the Company is incurred in
compliance with the provisions of this Indenture;
(iii) Indebtedness of the Company pursuant to the
Initial Securities issued on the Issue Date and the Exchange
Securities and Private Exchange Securities and Indebtedness of
any Guarantor pursuant to its Guarantee of the Initial Securities
and the Exchange Securities and Private Exchange Securities;
(iv) Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date;
(v) Indebtedness of the Company owing to a
Restricted Wholly Owned Subsidiary, PROVIDED, that any such
Indebtedness (x) is made pursuant to an intercompany note in the
form attached to this Indenture as Exhibit D and (y) is
62
subordinated in right of payment to the prior payment and
performance of the Company's obligations under the Notes, if
applicable; PROVIDED FURTHER that (A) any disposition, pledge or
transfer of any such Indebtedness to a Person (other than a
disposition, pledge or transfer to a Restricted Wholly Owned
Subsidiary or a pledge to or for the benefit of any holder of
Senior Indebtedness) or (B) any transaction pursuant to which
such Restricted Wholly Owned Subsidiary ceases to be a Restricted
Wholly Owned Subsidiary shall be deemed to be an incurrence of
such Indebtedness by the Company not permitted by this clause (v);
(vi) Indebtedness of a Restricted Wholly Owned
Subsidiary owing to the Company or to a Restricted Wholly Owned
Subsidiary; PROVIDED, that, with respect to Indebtedness owing to
any Restricted Wholly Owned Subsidiary, (x) any such Indebtedness
is made pursuant to an intercompany note in the form attached to
this Indenture as Exhibit E and (y) any such Indebtedness shall
be subordinated in right of payment to the payment and
performance of such Subsidiary's obligations under its Guarantee
of the Notes, if applicable; PROVIDED FURTHER that (A) any
disposition, pledge or transfer of any such Indebtedness to a
Person (other than a disposition, pledge or transfer to the
Company or a Restricted Wholly Owned Subsidiary or a pledge to or
for the benefit of any holder of Senior Indebtedness) and (B) any
transaction pursuant to which any Restricted Wholly Owned
Subsidiary, which has Indebtedness owing to the Company or any
other Restricted Wholly Owned Subsidiary, ceases to be a
Restricted Wholly Owned Subsidiary shall be deemed to be an
incurrence of Indebtedness by the obligor that is not permitted
by this clause (vi);
(vii) any renewals, extensions, substitutions,
refundings, refinancings or replacements (collectively, a
"REFINANCING") of any Indebtedness described in clause (iv) of this
paragraph (b) (including any successive refinancings), so long as
the aggregate principal amount of Indebtedness represented thereby
is not increased by such refinancing, except by an amount equal to
the lesser of (x) the stated amount of any premium, interest or
other payment required to be paid in connection with such a
refinancing pursuant to the terms of the Indebtedness being
refinanced or (y) the amount of premium, interest or other payment
actually paid at such time to refinance the Indebtedness, plus, in
either case, the amount of expenses incurred in connection with such
refinancing; PROVIDED, that in the case of Pari Passu Indebtedness
or Subordinated Indebtedness, (A) such new Indebtedness does not
have a shorter Average Life to Stated Maturity or a final Stated
Maturity of principal earlier than the Indebtedness being
refinanced, (B) in the case of Pari Passu Indebtedness, such new
Indebtedness is PARI PASSU with, or subordinated to, the Notes and
(C) in thc case of Subordinated Indebtedness, such new Indebtedness
is subordinated to the Notes at least to the same extent as the
Indebtedness being refinanced; and PROVIDED FURTHER that in no event
may Indebtedness of the Company be refinanced with Indebtedness of
any Restricted Subsidiary pursuant to this clause (vii);
(viii) Indebtedness of the Company or any Restricted
Subsidiary consisting of Capitalized Lease Obligations, mortgage
financings or purchase money obligations in an aggregate
principal amount at any time outstanding not in excess of $50.0
million;
63
(ix) Indebtedness of the Company or any Restricted
Subsidiary (A) in respect of judgment, appeal, surety,
performance and other like bonds, bankers' acceptances and
letters of credit provided by the Company or any Restricted
Subsidiary in the ordinary course of its business and which do
not secure other Indebtedness and (B) consisting of bona fide
Interest Rate Agreements or currency swap agreements designed to
protect the Company and/or its Restricted Subsidiaries from, or
control the exposure of the Company and/or its Restricted
Subsidiaries to, fluctuations in interest rates or foreign
currency fluctuations in respect of Indebtedness;
(x) Indebtedness of the Company or any Restricted
Subsidiary consisting of guarantees, indemnities or obligations
in respect of customary closing purchase price or similar
adjustments, in connection with the acquisition or disposition of
any business, assets or Subsidiary of the Company permitted under
this Indenture;
(xi) Indebtedness of the Company and its Restricted
Subsidiaries, to the extent the proceeds thereof are immediately
used after the incurrence thereof to purchase Notes tendered in
an offer to purchase made as a result of a Change of Control;
(xii) Indebtedness of a Securitization Subsidiary
incurred in connection with a Permitted Receivables Securitization
Subsidiary Program; and
(xiii) Indebtedness of the Company or any Restricted
Subsidiary in an aggregate principal amount at any time outstanding
not in excess of $25.0 million.
(c) Notwithstanding any other provision of this Section 1011,
the maximum amount of Indebtedness that the Company or any Restricted
Subsidiary may incur pursuant to this Section 1011 shall be deemed not to be
exceeded due solely to the result of fluctuations in the exchange rates of
currencies.
(d) For purposes of determining any particular amount of
Indebtedness under this Section 1011, (1) Indebtedness incurred pursuant to
the Credit Facilities prior to or on the Issue Date shall be treated as
incurred pursuant to clause (i) of Section 101l(b), (2) guarantees of, or
obligations with respect to letters of credit supporting, Indebtedness
otherwise included in the determination of such particular amount shall not
be included and (3) any Liens granted pursuant to the equal and ratable
provisions referred to in the first paragraph of Section 1015 of this
Indenture shall not be treated as Indebtedness. For purposes of determining
compliance with this Section 1011, (x) in the event that an item of
Indebtedness meets the criteria of more than one of the types of Indebtedness
described in the above clauses, the Company, in its sole discretion, shall
classify such item of Indebtedness and only be required to include the amount
and type of such Indebtedness in one of such clauses, and (y) the amount of
Indebtedness issued at a price that is less than the principal amount thereof
shall be equal to the amount of the liability in respect thereof determined
in conformity with GAAP.
SECTION 1012. LIMITATION ON RESTRICTED PAYMENTS. (a) The
Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of its Capital Stock (other than
dividends or distributions payable solely in shares of its
64
Qualified Capital Stock or in options, warrants or other rights to acquire
such Qualified Capital Stock and other than dividends and distributions paid
to the Company or another Restricted Subsidiary (and, if such Restricted
Subsidiary has shareholders other than the Company or other Restricted
Subsidiaries, to its other shareholders on a pro rata basis or on a basis
that results in the receipt by the Company or a Restricted Subsidiary of
dividends or distributions of equal or greater value));
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any shares of the Capital Stock of
United, the Company or any Restricted Subsidiary (other than any Restricted
Wholly Owned Subsidiary) or options, warrants or other rights to acquire such
Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease, retire or otherwise acquire for value, prior to the relevant
scheduled principal payment, sinking fund or maturity, any Subordinated
Indebtedness; or
(iv) make any Investment in any Person, including,
without limitation, any Unrestricted Subsidiary (other than any Permitted
Investments)
(the foregoing actions described in clauses (i) through (iv), collectively,
"RESTRICTED PAYMENTS") unless at the time the Company or such Restricted
Subsidiary makes such Restricted Payment (the amount of any such Restricted
Payment, if other than cash, as determined in good faith by the Board of
Directors of the Company, such determination to be conclusive and evidenced by a
Board Resolution), (A) no Default shall have occurred and be continuing (or
would result therefrom); (B) the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under Section 1011; and (C) the
aggregate amount of all such Restricted Payments declared or made after the
Issue Date (including such Restricted Payment) does not exceed the sum of:
(I) 50% of the aggregate cumulative Consolidated Net
Income (or, if such aggregate cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of the Company
accrued on a cumulative basis during the period (taken as one
accounting period) beginning on January 1, 1998 and ending on the
last day of the Company's last fiscal quarter ending prior to the
date of the Restricted Payment for which such financial information
is available;
(II) the aggregate Net Cash Proceeds
received after the Issue Date by the Company from the issuance or
sale (other than to any of its Subsidiaries) of its shares of
Qualified Capital Stock or any options, warrants or rights to
purchase such shares of Qualified Capital Stock (less the value of
any equity security referred to (and determined in accordance with)
the parenthetical in clause (a)(i) of the definition of Consolidated
Interest Expense);
(III) the aggregate Net Cash Proceeds
received after the Issue Date by the Company (other than from any of
its Subsidiaries) upon the exercise of any options, warrants or
rights to purchase shares of Qualified Capital Stock of the Company;
65
(IV) the aggregate Net Cash Proceeds received after
the Issue Date by the Company from Indebtedness of the
Company or Redeemable Capital Stock of the Company that has been
converted into or exchanged for Qualified Capital Stock of the
Company (or options, warrants or rights to purchase such Qualified
Capital Stock), to the extent such Indebtedness of the Company or
Redeemable Capital Stock of the Company was originally incurred or
issued for cash, plus the aggregate Net Cash Proceeds received by
the Company at the time of such conversion or exchange;
(V) without duplication of any of the
foregoing, 100% of the aggregate Net Cash Proceeds received by the
Company as a capital contribution from United; and
(VI) to the extent not included in
Consolidated Net Income, the net reduction (received by the Company
or any Restricted Subsidiary in cash) in Investments (other than
Permitted Investments) (A) made by the Company and the Restricted
Subsidiaries since the Issue Date, and (B) as a result of the
redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, not to exceed the amount of Investments (other than
Permitted Investments) made by the Company and the Restricted
Subsidiaries in such Person or in such Unrestricted Subsidiary
since the Issue Date.
(b) Notwithstanding the foregoing, and in the case of clauses
(ii), (iii), (iv), (v), (vi), (vii), (viii) and (ix) below, so long as there
is no Default continuing, the foregoing provisions shall not prohibit the
following actions:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at such date of declaration such
payment would be permitted by the provisions of paragraph (a) of this Section
1012 (such payment shall be deemed to have been paid on such date of
declaration for purposes of the calculation required by paragraph (a) of this
Section 1012);
(ii) the repurchase, redemption, or other
acquisition or retirement of any shares of any class of Capital Stock of the
Company or United or warrants, options or other rights to acquire such stock
(x) in exchange for, or out of the Net Cash Proceeds of a substantially
concurrent issue and sale (other than to United or a Subsidiary) for cash of,
any Qualified Capital Stock of the Company or warrants, options or other
rights to acquire such stock or (y) in the case of Redeemable Capital Stock,
solely in exchange for, or through the application of the net proceeds of a
substantially concurrent sale for cash (other than to United or a Subsidiary)
of, Redeemable Capital Stock that has a redemption date no earlier than, and
requires the payment of current dividends or distributions in cash no earlier
than, in each case, the Redeemable Capital Stock being purchased, redeemed or
otherwise acquired or retired;
(iii) any repurchase, redemption, defeasance,
retirement, refinancing or acquisition for value or payment of principal of
any Subordinated Indebtedness in exchange for, or out of the net proceeds of
a substantially concurrent issuance and sale (other than to United or a
Subsidiary) for cash of, any Qualified Capital Stock of the Company or United
or warrants, options or other rights to acquire such stock or for shares of
Redeemable Capital Stock that have a redemption date no earlier than, and
require the payment of current dividends or distributions
66
in cash no earlier than, in each case, the maturity date and interest payment
dates, respectively, of the Indebtedness being repurchased, redeemed,
defeased, retired, refinanced or acquired;
(iv) the repurchase, redemption, defeasance,
retirement or other acquisition for value or payment of principal of any
Subordinated Indebtedness through the issuance of Indebtedness meeting the
requirements of clause (vii) of paragraph (b) of Section 1011;
(v) the repurchase, redemption, acquisition or
retirement of shares of Capital Stock of United or options, warrants or other
rights to purchase such shares held by officers or employees or former
officers or employees of United and the Subsidiaries (or their estates or
beneficiaries), upon death, disability, retirement or termination of
employment, pursuant to the terms of any employee stock option or stock
purchase plan or agreement under which such shares were acquired; PROVIDED
that the aggregate consideration paid for all such shares following the Issue
Date does not exceed $2.5 million in any fiscal year of the Company; and
PROVIDED FURTHER that the amount by which $2.5 million exceeds the amount so
used in any fiscal year of the Company shall be available to be so used in
subsequent fiscal years of the Company, notwithstanding the immediately
preceding proviso;
(vi) payments to United, to the extent used by
United to (x) pay its operating and administrative expenses including,
without limitation, directors' fees, legal and audit expenses, Commission
compliance expenses and corporate franchise and other taxes, not to exceed
$2.5 million any fiscal year of the Company, (y) make payments in respect to
its indemnification obligations owing to directors, officers or other Persons
under United's Charter or by-laws or pursuant to written agreements with any
such Person or (z) make payments in respect of indemnification obligations
and costs and expenses incurred by United in connection with any offering of
common stock of United;
(vii) payments to United, not to exceed $5.0
million in the aggregate after the Issue Date, to the extent used by United
to make cash payments to holders of its Capital Stock in lieu of the issuance
of fractional shares of Capital Stock and to redeem or repurchase stock
purchase or similar rights issued as a shareholder rights device and
repurchases of shares from holders of Common Stock who hold less than 100
shares in each instance;
(viii) upon the occurrence of a Change of Control
or an Asset Sale and within 60 days after the completion of the offer to
repurchase the Notes pursuant to Section 1010 or Section 1016 (including the
purchase of all Notes tendered), any purchase, defeasance, retirement,
redemption or other acquisition of Subordinated Indebtedness required
pursuant to the terms thereof as a result of such Change of Control or Asset
Sale;
(ix) advances to employees, agents and consultants
for expenses incurred or to be incurred in the ordinary course of business
consistent with past practice; and
(x) other Restricted Payments in an aggregate
amount since the Issue Date not to exceed $25.0 million.
The actions described in clauses (i) through (iii) and clauses
(v), (viii) and (x) of this paragraph (b) shall be Restricted Payments that
shall be permitted to be taken in accordance
67
with this paragraph (b) but shall reduce the amount that would otherwise be
available for Restricted Payments under clause (C) of paragraph (a) of this
Section 1012 (provided that any dividend paid pursuant to clause (i) of this
paragraph (b) shall reduce the amount that would otherwise be available under
clause (C) of paragraph (a) of this Section 1012 when declared, but not also
when paid pursuant to such clause (i)) and the actions described in clauses
(iv), (vi), (vii) and (ix) of this paragraph (b) shall be permitted to be
taken in accordance with this paragraph and shall not reduce the amount that
would otherwise be available for Restricted Payments under clause (C) of
paragraph (a).
SECTION 1013. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
(a) The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets or property or the rendering
of any services) with any Affiliate of the Company (other than a Restricted
Wholly Owned Subsidiary of the Company) unless (i) such transaction or series
of transactions is in writing on terms that are no less favorable to the
Company or such Restricted Subsidiary, as the case may be, than would be
available in a comparable transaction in arm's-length dealings with an
unrelated third party, (ii) with respect to any such transaction or series of
transactions involving aggregate payments in excess of $10.0 million, the
Company delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (i) above
and such transaction or series of related transactions has been approved by
the Board of Directors of the Company, and (iii) with respect to a
transaction or series of related transactions involving aggregate value in
excess of $25.0 million, the Company delivers to the Trustee an opinion of an
independent investment banking firm of national standing stating that the
transaction or series of transactions is fair to the Company or such
Restricted Subsidiary from a financial point of view.
(b) The provisions of the foregoing paragraph (a) shall not
prohibit (i) any Restricted Payment or Permitted Investment permitted to be
made pursuant to Section 1012, (ii) fees, compensation or employee benefit
arrangements paid to, and any indemnity provided for the benefit of,
directors, officers, employees, consultants or agents in the ordinary course
of business or any Indebtedness permitted to be incurred pursuant to clause
(xiii) of paragraph (b) of Section 1011 or any payments in respect thereof,
(iii) any issuance of securities, or other payments, awards or grants in
cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans approved by the Board
of Directors, (iv) transactions pursuant to agreements entered into or in
effect on the Issue Date, including amendments thereto entered into after the
Issue Date, PROVIDED that the terms of any such amendment are not, in the
aggregate, less favorable to the Company or such Restricted Subsidiary than
the terms of such agreement prior to such amendment, (v) advances to
employees, agents and consultants for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business and consistent with past practices, (vi) any transaction between or
among United, the Company and/or one or more Restricted Subsidiaries (so long
as the other stockholder of any participating Restricted Subsidiaries which
are not Wholly Owned Subsidiaries are not themselves Affiliates of the
Company), or (vii) the entering into by the Company, United and one or more
of its Restricted Subsidiaries of a tax sharing agreement or similar
arrangement.
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SECTION 1014. LIMITATION ON SENIOR SUBORDINATED INDEBTEDNESS.
The Company and each Guarantor will not, directly or indirectly, incur or
otherwise permit to exist any Indebtedness that is subordinate in right of
payment to any indebtedness of the Company or such Guarantor, as the case may
be, unless such Indebtedness is also PARI PASSU with the Notes or the
Guarantee of the Notes by such Guarantor, as the case may be, or subordinate
in right of payment to the Notes or such Guarantee of the Notes, as the case
may be, to at least the same extent as the Notes or such Guarantee are
subordinate in right of payment to Senior Indebtedness or Senior Guarantor
Indebtedness, as the case may be, as set forth in Article Fourteen or Article
Fifteen, as the case may be.
SECTION 1015. LIMITATION ON LIENS. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, incur,
assume or suffer to exist any Lien of any kind upon any of its property or
assets (including any shares of Capital Stock or Indebtedness of any
Restricted Subsidiary), owned on the Issue Date or acquired after the Issue
Date, or any income or profits therefrom, except if the Notes (or the
Guarantee of the Notes, in the case of Liens on properties or assets of a
Restricted Subsidiary that is a Guarantor) and all other amounts due under
this Indenture are directly secured equally and ratably with (or prior to in
the case of Liens with respect to Subordinated Indebtedness) the obligation
or liability secured by such Lien, excluding, however, from the operation of
the foregoing any of the following:
(a) any Lien existing or provided for under written
arrangements existing as of the Issue Date;
(b) any Lien arising by reason of (i) any judgment, decree or
order of any court, so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for the
review of such judgment, decree or order shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired; (ii) taxes, assessments or other governmental charges not
yet delinquent or which are being contested in good faith; (iii) security for
payment of workers' compensation or other insurance; (iv) good faith deposits
in connection with tenders, leases or contracts (other than contracts for the
payment of money); (v) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers, restrictions on the
use of property or minor irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner of the leased property, with or without consent of
the lessee), none of which materially impairs the use of any property or
assets material to the operation of the business of the Company or any
Restricted Subsidiary or the value of such property or assets for the purpose
of such business; (vi) deposits to secure public or statutory obligations, or
in lieu of surety or appeal bonds with respect to matters not yet finally
determined and being contested in good faith by negotiations or by
appropriate proceedings which suspend thc collection thereof; or (vii)
operation of law in favor of mechanics, materialmen, laborers, employees or
suppliers, incurred in the ordinary course of business for sums which are not
yet delinquent or are being contested in good faith by negotiations or by
appropriate proceedings which suspend the collection thereof;
69
(c) any Lien now or hereafter existing on property of the
Company or any Guarantor securing Senior Indebtedness or Senior Guarantor
Indebtedness, as the case may be, of such Person;
(d) any Lien securing Acquired indebtedness created prior to
(and not created in connection with, or in contemplation of) the incurrence
of such Indebtedness by the Company, which Indebtedness is permitted under
Section 1011; PROVIDED that any such Lien only extends to the assets that
were subject to such Lien securing such Acquired indebtedness prior to the
related acquisition;
(e) any Lien now or hereafter existing on Receivables and
Related Assets in connection with a Permitted Receivables Securitization
Program;
(f) any Lien on property, assets or shares of Capital Stock of
a Person at the time such Person becomes a Subsidiary; PROVIDED, HOWEVER,
such Lien is not created, incurred or assumed by such Person in connection
with, or in contemplation of, such other Person becoming such a Subsidiary;
provided further, however, that such Lien may not extend to any other
property owned by the Company or any Restricted Subsidiary;
(g) any Lien on property or assets at the time the Company or
a Restricted Subsidiary acquired the property or assets, including any
acquisition by means of a merger or consolidation with or into the Company or
a Restricted Subsidiary; PROVIDED, HOWEVER, that such Lien is not created in
connection with, or in contemplation of, such acquisition; PROVIDED FURTHER,
HOWEVER, that the Lien may not extend to any other property owned by the
Company or any Restricted Subsidiary;
(h) Liens related to Capitalized Lease Obligations, mortgage
financings or purchase money obligations (including refinancings thereof), in
each case incurred in accordance with Section 1011 and for the purpose of
financing all or any part of the purchase price or costs of construction or
improvement of property, plant or equipment used in the business of the
Company or any Restricted Subsidiary, provided that any such Lien encumbers
only the asset or assets so financed, purchased, constructed or improved;
(i) any Lien on Capital Stock or other securities of an
Unrestricted Subsidiary; and
(j) any extension renewal, refinancing or replacement, in
whole or in part, of any Lien described in the foregoing clauses (a) through
(i) so long as the amount of property or assets subject to such Lien is not
increased to any amount greater than the sum of (i) the outstanding principal
amount or, if greater, committed amount of the Indebtedness described under
such clauses (a) through (i) at the time the original Lien became a Lien
permitted hereunder and (ii) an amount necessary to pay any fees and
expenses, including premiums, related to such extension, renewal, refinancing
or replacement.
SECTION 1016. LIMITATION ON SALE OF ASSETS. (a) The Company
will not, and will not permit any of its Restricted Subsidiaries to, directly
or indirectly, consummate an Asset Sale unless (i) at least 75% of the
proceeds from such Asset Sale are received in cash and (ii) the
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Company or such Restricted Subsidiary receives consideration at the time of
such Asset Sale at least equal to the Fair Market Value of the shares or
assets sold.
(b) If all or a portion of the Net Cash Proceeds of any Asset
Sale is not applied to repay permanently any Senior Indebtedness or Senior
Guarantor Indebtedness then outstanding as required by the terms thereof, and
the Company determines not to apply such Net Cash Proceeds to the prepayment
of such Senior Indebtedness or Senior Guarantor Indebtedness or if no such
Senior Indebtedness or Senior Guarantor Indebtedness is then outstanding,
then the Company may, within 12 months of the Asset Sale, invest (or enter
into a written, legally binding commitment to invest, PROVIDED that the
investment provided for in such commitment is actually made within 24 months
of the Asset Sale) the Net Cash Proceeds in other properties and assets that
will be used in the businesses of the Company and its Restricted Subsidiaries
or in any company having such properties and assets. The amount of such Net
Cash Proceeds neither used to permanently repay or prepay Senior Indebtedness
or Senior Guarantor Indebtedness nor used or invested as set forth in this
paragraph (b) constitutes "EXCESS PROCEEDS."
(c) When the aggregate amount of Excess Proceeds equals $10.0
million or more, the Company shall, within 15 Business Days in accordance
with the procedures set forth in this Indenture: (i) make an offer (an
"OFFER") to purchase, for cash, at 100% of the principal amount thereof, plus
accrued and unpaid interest to the repurchase date (the "REPURCHASE DATE"),
the maximum principal amount (expressed as a multiple of $1,000) of Notes
that may be purchased out of an amount (the "NOTE AMOUNT") equal to the
product of such Excess Proceeds multiplied by a fraction, the numerator of
which is the outstanding principal amount of the Notes, and the denominator
of which is the sum of the outstanding principal amount of the Notes and any
Pari Passu Indebtedness that is required to be repurchased under the
instrument governing such Pari Passu Indebtedness and (ii) to the extent
required by such Pari Passu Indebtedness, the Company shall make an offer to
purchase or, if required by the terms of such Pari Passu Indebtedness,
otherwise repurchase or redeem Pari Passu Indebtedness (a "PARI PASSU
REPAYMENT") in an amount (the "PARI PASSU DEBT AMOUNT") equal to the excess
of the Excess Proceeds over the Note Amount; PROVIDED that in no event shall
the Pari Passu Debt Amount exceed the principal amount of such Pari Passu
Indebtedness plus the amount of any premium, if any, and accrued and unpaid
interest required to be paid to repurchase such Pari Passu Indebtedness. To
the extent that the aggregate principal amount of and accrued but unpaid
interest with respect to the Notes tendered pursuant to the Offer is less
than the Note Amount relating thereto or the aggregate amount of Pari Passu
indebtedness that is purchased is less than the Pari Passu Debt Amount, the
Company may use such amounts not necessary to purchase the tendered Notes and
the Pari Passu Indebtedness required to be purchased for any purpose not
prohibited by this Indenture. Upon completion of the purchase of all the
Notes tendered pursuant to an Offer and the purchase of the Pari Passu
Indebtedness pursuant to a Pari Passu Repayment, the amount of Excess
Proceeds, if any, shall be reset at zero.
(d) Within the period required by the first sentence of
paragraph (c) above, the Company shall notify the Trustee thereof and shall
give to each Holder of the Securities in the manner provided in Section 106,
a notice stating:
(1) that an Offer is being made and that such Holder has
the right to require the Company to repurchase such Holder's
Securities on a pro rata basis;
71
(2) the purchase price and the Repurchase Date, which
shall be a Business Day no earlier than 30 days nor later than 60
days from the date such notice is mailed, or such later date as may
be necessary to comply with requirements under the Exchange Act;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in the payment of
the purchase price, any Notes accepted for payment pursuant to the
Offer shall cease to accrue interest after the Repurchase Date; and
(5) the procedures that a Holder must follow to accept an Offer
or to withdraw such acceptance.
(e) Holders electing to have Notes purchased will be required
to surrender such Notes with the execution form provided for in Exhibit A
duly executed to the Company at the address specified in the notice at least
10 Business Days prior to the Change of Control Repurchase Date. Holders will
be entitled to withdraw their election if the Company receives, not later
than three Business Days prior to the Change of Control Purchase Date, a
facsimile transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for purchase by the Holder as to
which his election is to be withdrawn and a statement that such Holder is
withdrawing his election to have such Notes purchased. Holders whose Notes
are purchased only in part will be issued new Notes equal in principal amount
to the unpurchased portion of the Notes surrendered.
On the Repurchase Date, the Company shall repurchase Notes on
the pro rata basis set forth in paragraph (c) above.
(f) The Company will comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws and regulations in connection with an Offer.
SECTION 1017. LIMITATION ON ISSUANCES OF GUARANTEES OF
INDEBTEDNESS. (a) The Company will not permit any Restricted Subsidiary to
incur any Guaranteed Debt, other than Guaranteed Debt in respect of Senior
Indebtedness of the Company; PROVIDED that, concurrently with the incurrence
of such Guaranteed Debt by any Restricted Subsidiary, the Restricted
Subsidiary incurring such Guaranteed Debt (if it is not a Guarantor) shall
execute a supplemental indenture setting forth such Restricted Subsidiary's
senior subordinated guarantee of the Notes, such guarantee to be on the same
terms as each Guarantor's Guarantee of the Notes. Neither the Company nor any
Guarantor shall be required to make a notation on the Notes or the Guarantees
to reflect such Guarantee. In connection with such Guarantee of the Notes,
such Restricted Subsidiary shall waive, and agree that it will not in any
manner whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Company or any Guarantor as a result of any payment by such Restricted
Subsidiary with respect to such Guaranteed Debt.
(b) United will not incur any Guaranteed Debt with respect to
any Pari Passu indebtedness or Subordinated Indebtedness unless such
Guaranteed Debt is subordinated (at least
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to the extent that Notes are subordinated in right of payment to Senior
Indebtedness) in right of payment to (or, in the case of Guaranteed Debt with
respect to Pari Passu Indebtedness, is PARI PASSU in right of payment with)
United's Guarantee of the Notes.
(c) The Company will cause each of its domestic
Restricted Subsidiaries which incurs any Indebtedness, other than the Joint
Venture and any Securitization Subsidiary that has entered into or established a
Permitted Receivables Securitization Program, simultaneously with the first
incurrence of any Indebtedness, to execute a supplemental indenture providing
for a Guarantee of the Notes on the same terms as each Guarantor's Guarantee of
the Notes, including, without limitation, the waiver and agreement referred to
in the last sentence of paragraph (a) above. Neither the Company nor any
Guarantor shall be required to make a notation on the Notes or the Guarantees to
reflect such Guarantee.
SECTION 1018. LIMITATION ON SUBSIDIARY CAPITAL STOCK. The
Company will not transfer, and will not permit the transfer or issuance of,
any Capital Stock of any Restricted Subsidiary (including options, warrants
or other rights to purchase shares of such Capital Stock) except for (i)
Capital Stock issued to and held by the Company or a Restricted Wholly Owned
Subsidiary, (ii) Capital Stock issued by a Person prior to the time (A) such
Person becomes a Restricted Subsidiary, (B) such Person merges with or into a
Restricted Subsidiary or (C) a Restricted Subsidiary merges with or into such
Person; PROVIDED that such Capital Stock was not issued or incurred by such
Person in anticipation of the type of transaction contemplated by subclause
(A), (B) or (C), (iii) the transfer of all of the Capital Stock of a
Restricted Subsidiary or (iv) the issuance or transfer of directors'
qualifying shares or a DE MINIMS number of shares required to be held by
foreign nationals, in each case to the extent required by applicable law. The
foregoing shall not prohibit the pledge of any shares of Capital Stock
permitted under Section 1015.
SECTION 1019. LIMITATION ON DIVIDENDS AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, create
or otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Restricted Subsidiary to (i) pay dividends,
in cash or otherwise, or make any other distribution on or in respect of its
Capital Stock, (ii) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary, (iii) make any loans or advances to, or Investments
in, the Company or any other Restricted Subsidiary or (iv) transfer any of
its properties or assets to the Company or any other Restricted Subsidiary,
except in any such case (1) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the Issue Date; (2) any encumbrance
or restriction, with respect to a Person that becomes a Restricted Subsidiary
after the Issue Date, in existence at the time such Person becomes a
Restricted Subsidiary and not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary (other than as
consideration in, in contemplation of, or to provide all or any portion of
the funds or credit support utilized to consummate, the transaction or series
of related transactions pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was otherwise acquired by the Company or another
Restricted Subsidiary); (3) any encumbrance or restriction existing under any
agreement that extends, renews, refinances or replaces the agreements
containing the encumbrances or restrictions in the foregoing clauses (1) and
(2), or in this clause (3), PROVIDED that the terms and conditions of any
such encumbrances or restrictions are (A) not materially less favorable to the
73
Holders of the Securities than those under or pursuant to the agreement so
extended, renewed, refinanced or replaced (as determined in good faith by the
Company) and (B) with respect to any instrument relating to any Indebtedness,
no more restrictive in any material respect than the encumbrances and
restrictions contained in the Credit Facilities as in effect on the Issue
Date (as determined in good faith by the Company); (4) any encumbrance or
restriction created pursuant to an asset sale agreement, stock sale agreement
or similar instrument pursuant to which a bona-fide Asset Sale, the proceeds
of which are applied as provided in this Indenture, is to be consummated, so
long as such restriction or encumbrance shall apply only to the assets
subject to such Asset Sale and shall be effective only for a period from the
execution and delivery of such agreement or instrument through the earlier of
the consummation of such Asset Sale or the termination of such agreement or
instrument; (5) customary nonassignment provisions of any lease governing any
leasehold interest of the Company or any Restricted Subsidiaries; (6) to the
extent required by this Indenture; (7) any encumbrance or restriction
existing under or by reason of applicable law; (8) with respect to a
Restricted Subsidiary, any encumbrance or restriction imposed pursuant to an
agreement that has been entered into for the sale of all or substantially all
of the Capital Stock of such Restricted Subsidiary; and (9) purchase money
obligations for property acquired in the ordinary course of business that
impose restrictions of the type referred to in clause (iv) above.
SECTION 1020. WAIVER OF CERTAIN COVENANTS. The Company may
omit in any particular instance to comply with any term, provision or
condition set forth in Sections 1008 through 1019, inclusive, if before or
after the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities, by Act of such Holders, waive
such compliance in such instance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 1021. TRUSTEE'S APPLICATION FOR INSTRUCTIONS FROM THE
COMPANY.
Any application by the Trustee for written instructions from
the Company may, at the option of the Trustee, set forth in writing any
action proposed to be taken or omitted by the Trustee under this Indenture
and the date on and/or after which such action shall be taken or such
omission shall be effective. The Trustee shall not be liable for any action
taken by or omission of, the Trustee in accordance with a proposal included
in such application on or after the date specified in such application (which
date shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall
have consented in writing to any earlier date) unless prior to taking any
such action (or the effective date in the case of an omission), the Trustee
shall have received written instructions in response to such application
specifying the action to be taken or omitted.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. RIGHT OF REDEMPTION. (a) The Securities will
be subject to redemption at any time on or after April 15, 2003, at the
option of the Company, in whole or in part, on not less than 30 nor more than
60 days' prior notice in amounts of $1,000 or an integral multiple thereof at
the following redemption prices (expressed as percentages of the principal
amount), if redeemed during the 12-month period beginning April 15 of the
years indicated below:
REDEMPTION
YEAR PRICE
---- -----
2003........................................104.188%
2004........................................102.792%
2005........................................101.396%
2006........................................100.000%
and thereafter at 100% of the principal amount, in each case together with
accrued and unpaid interest and Additional Amounts, if any, to the redemption
date (subject to the right of holders of record on Regular Record Dates to
receive interest due on relevant Interest Payment Dates).
(b) In addition, at any time and from time to time prior to
April 15 , 2001, the Company may redeem up to 35% of the aggregate principal
amount of the Notes (calculated giving effect to any issuance of Additional
Securities) within 180 days following one or more Public Equity Offerings
with the net proceeds of such offerings at redemption price equal to 108.375%
of the principal amount thereof, together with accrued and unpaid interest
and Additional Amounts, if any, to the date of redemption (subject to the
right of holders of record on Regular Record Dates to receive interest due on
relevant Interest Payment Dates); PROVIDED that immediately after giving
effect to each such redemption, at least 65% of the aggregate principal
amount of the Notes (as so calculated) remain outstanding after giving effect
to each such redemption.
SECTION 1102. APPLICABILITY OF ARTICLE. Redemption of
Securities at the election of the Company or otherwise, as permitted or
required by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities pursuant to Section 1101
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities to be redeemed and shall deliver to the
Trustee such documentation and records as shall enable the Trustee to select
the Securities to be redeemed pursuant to Section 1104.
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SECTION 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all of the Securities are to be redeemed at any time,
selection of Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities
exchange, if any, on which the Securities are listed or, in the absence of
such requirements or if the Securities are not so listed, the Trustee shall
select the Securities or portions thereof to be redeemed pro rata, lot or by
any other method the Trustee shall deem fair and reasonable, PROVIDED that no
such Securities of $1,000 or less in principal amount shall be redeemed in
part.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 1105. NOTICE OF REDEMPTION. Notice of redemption
shall be given in the manner provided for in Section 106 not less than 30 nor
more than 60 days, prior to the Redemption Date, to each Holder of Securities
to be redeemed.
All notices of redemption shall identify the Securities
to be redeemed (including CUSIP or CINS number) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price
(together with accrued interest, if any, to the Redemption Date payable as
provided in Section 1107) will become due and payable upon each such
Security, or the portion thereof, to be redeemed, and that interest thereon
will cease to accrue on and after said date, and
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 1106. DEPOSIT OF REDEMPTION PRICE. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 1003) an amount of
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money sufficient to pay the Redemption Price of, and accrued interest on, all
the Securities which are to be redeemed on that date.
SECTION 1107. SECURITIES PAYABLE ON REDEMPTION DATE. Notice
of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any,
to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest)
such Securities shall cease to bear interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued
interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 309.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne
by the Securities.
SECTION 1108. SECURITIES REDEEMED IN PART. Any Security
which is to be redeemed only in part shall be surrendered at the office or
agency of the Company maintained for such purpose pursuant to Section 1002
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Company shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE. The Company may, at its option and at any time, elect
to have either Section 1202 or Section 1203 be applied to all Outstanding
Securities upon compliance with the conditions set forth below in this
Article Twelve.
SECTION 1202. DEFEASANCE AND DISCHARGE. Upon the passage of
123 days after the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company and the Guarantors shall be
deemed to have been discharged from their respective obligations with respect
to all thc Outstanding Securities on the date the conditions set forth in
Section 1204 are satisfied (hereinafter, "DEFEASANCE"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by Outstanding Securities
except for (i) the rights of Holders of Outstanding Securities to receive
payments in respect of the principal of, premium, if any, interest and
Additional Amounts, if any, on such Securities when such payments are due,
(ii) the Company's
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obligations with respect to the Securities concerning issuing temporary
Securities, registration of Securities, mutilated, destroyed, lost or stolen
Securities, and the maintenance of an office or agency for payment and money
for security payments held in trust, (iii) the rights, powers, trusts, duties
and immunities of the Trustee, and (iv) this Article Twelve.
SECTION 1203. COVENANT DEFEASANCE. Upon the passage of 123
days after the Company's exercise under Section 1201 of the option applicable
to this Section 1203, the Company and the Guarantors shall be released from
their respective obligations under any covenant in Section 801 and in
Sections 1003 and 1008 through 1019 with respect to the Outstanding
Securities on and after the date the conditions set forth below are satisfied
(hereinafter, "COVENANT DEFEASANCE"), and the Securities shall thereafter be
deemed not to be "Outstanding" for the purposes of any direction, waiver,
consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities,
the Company and the Guarantors may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any
covenant referred to in the first sentence of this Section 1203, whether
directly or indirectly, by reason of any reference elsewhere herein to any
such covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document and such omission to comply shall
not constitute a Default or an Event of Default under Section 501(3) or
Section 501(5), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE. The following shall be the conditions to application of either
Section 1202 or Section 1203 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this Article
Twelve applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A) cash in United
States dollars in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, the principal of (and
premium, if any, on), interest and Additional Amounts, if any, on the
Outstanding Securities on the Stated Maturity (or Redemption Date, if
applicable) of such principal (and premium, if any), interest or Additional
Amounts, if any (or if specified by the Company in an Officers' Certificate
delivered to the Trustee at the time of such deposit, any date upon which the
Company would be entitled to redeem all Securities Outstanding (such date
being referred to as the "DEFEASANCE REDEMPTION DATE")); PROVIDED that the
Trustee shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Governmental Obligations to said payments with respect
to the Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 1103 hereof, a notice of its election to
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redeem all of the Outstanding Securities at a future date in accordance with
Article Eleven hereof, which notice shall be irrevocable. Such irrevocable
redemption notice, if given, shall be given effect in applying the foregoing.
For this purpose, "U.S. GOVERNMENT OBLIGATIONS" means securities that are (x)
direct obligations of the United States of America for the timely payment of
which its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the timely payment of which is unconditionally
guaranteed as a full faith and credit obligation by e United States of
America, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depository receipt issued by
a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended), as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, PROVIDED that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2) No Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or, with respect to
Section 501(7) or Section 501(8), at any time during the period ending on the
123rd day after the date of deposit.
(3) Such defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest with respect to any securities of
the Company or any Guarantor.
(4) Such 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 Company or any
Guarantor is a party or by which it is bound.
(5) In the case of an election under Section 1202, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States to the effect that since the date of this Indenture (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) 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 in the United States shall confirm that, the Holders
of the Outstanding Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had
not occurred.
(6) In the case of an election under Section 1203, thc
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States to the effect that the Holders of the Outstanding Securities
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.
79
(7) The Company shall have delivered to the Trustee an
Opinion of Counsel (which may be delivered on such 123rd day) to the effect
that (A) the trust funds will not be subject to any rights of holders of
Senior Indebtedness or Senior Guarantor Indebtedness, including, without
limitation, those arising under this Indenture and (B) after the 123rd day
following the deposit, the trust funds will not be subject to avoidance under
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of the Securities or any Guarantee
over the other creditors of the Company or any Guarantor with the intent of
defeating, hindering, delaying or defrauding creditors of the Company, any
Guarantor or others.
(9) No event or condition shall exist that would prevent the
Company from making payments of principal of, premium, if any, interest and
Additional Amounts, if any, on the Securities on the date of such deposit or
at any time ending on the 123rd day after the date of such deposit.
(10) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 1202 or the covenant defeasance under Section 1203 (as the case may
be) have been complied with.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to section 1202 or Section 1203 or the
principal and interest received in respect thereof other than any such tax,
fee or other charge which by law is for the account of the Holders of
Outstanding Securities.
ARTICLE THIRTEEN
GUARANTEE OF SECURITIES
SECTION 1301. GUARANTEE. Subject to the provisions of this
Article Thirteen, the Guarantors hereby, fully, unconditionally and
irrevocably guarantee to each Holder and to the Trustee on behalf of the
Holders: (i) the due and punctual payment of the principal of, premium, if
any, interest and Additional Amounts, if any, on each Security, when and as
the same shall become due and payable, whether at maturity, by acceleration
or otherwise, the due and punctual payment of interest on the overdue
principal of and interest, if any, on the Securities, to the extent lawful,
and the due and punctual performance of all other obligations of the Company
to the Holders or the Trustee, all in accordance with the terms of such
Security and this Indenture and (ii) in the case of any extension of time of
payment or renewal of any Securities or any of such other obligations, that
the same will be promptly paid in full when due or performed in accordance
with the terms of the extension or renewal, at Stated Maturity, by
acceleration or otherwise, PROVIDED that this Guarantee shall not be
enforceable against the Guarantors in an amount in excess of the respective
net worth of each Guarantor at the time that determination of such net worth
is, under applicable law, relevant to the enforceability of such
80
Guarantee. Such net worth shall include any claim of any Guarantor against
the Company for reimbursement and any claim against any other Guarantor for
contribution. The Guarantors hereby waive diligence, presentment, demand of
payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company,
the benefit of discussion, protest or notice with respect to any such
Security or the debt evidenced thereby and all demands whatsoever (except as
specified above), and covenants that this Guarantee will not be discharged as
to any such Security except by payment in full of the principal thereof and
interest thereon and as provided in Section 401 and Section 1202 or in the
event of a transaction in compliance with Section 801(b). The maturity of the
obligations guaranteed hereby may be accelerated as provided in Article Five
for the purposes of this Article Thirteen. In the event of any declaration of
acceleration of such obligations as provided in Article Five, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Article Thirteen. In
addition, without limiting the foregoing provisions, upon the effectiveness
of an acceleration under Article Five, the Trustee shall promptly make a
demand for payment on the Securities under the Guarantee provided for in this
Article Thirteen.
If the Trustee or the Holder of any Security is required by
any court or otherwise to return to the Company or any Guarantor, or any
custodian, receiver, liquidator, trustee, sequestrator or other similar
official acting in relation to the Company or such Guarantor, any amount paid
to the Trustee or such Holder in respect of a Security, this Guarantee, to
the extent theretofore discharged, shall be reinstated in full force and
effect. Each of the Guarantors further agrees, to the fullest extent that it
may lawfully do so, that, as between it, on the one hand, and the Holders and
the Trustee, on the other hand, the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Five hereof for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
Each of the Guarantors hereby irrevocably waives any claim or
other rights which it may now or hereafter acquire against the Company or any
other Guarantor that arise from the existence, payment, performance or
enforcement of its obligations under this Guarantee and this Indenture,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, any right to participate in any
claim or remedy of the Holders against the Company or any Guarantor or any
collateral which any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in
equity, or under contract, statute or common law, including. without
limitation, the right to take or receive from the Company or a Guarantor,
directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to a Guarantor in violation of the preceding
sentence and the principal of, premium, if any, and accrued interest on the
Securities shall not have been paid in full, such amount shall be deemed to
have been paid to such Guarantor for the benefit of, and held in trust for
the benefit of, the Holders, and shall forthwith be paid to the Trustee for
the benefit of the Holders to be credited and applied upon the principal of,
premium, if any, and accrued interest on the Securities. Each of the
Guarantors acknowledges that it will receive direct and indirect benefits
from the issuance of the Securities pursuant to this Indenture and that the
waivers set forth in this Section 1301 are knowingly made in contemplation of
such benefits.
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The Guarantees set forth in this Section 1301 shall not be
valid or become obligatory for any purpose with respect to a Security until
the certificate of authentication on such Security shall have been signed by
or on behalf of the Trustee.
SECTION 1302. OBLIGATIONS UNCONDITIONAL. Except as provided
in Section 1301, nothing contained in this Article Thirteen or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among
each of the Guarantors and the holders of the Securities, the obligations of
each of the Guarantors, which are absolute and unconditional, upon failure by
the Company, to pay to the holders of the Securities the principal of,
premium, if any, interest and Additional Amounts, if any, on the Securities
as and when the same shall become due and payable in accordance with their
terms, or is intended to or shall affect the relative rights of the holders
of the Securities and creditors of each of the Guarantors, nor shall anything
herein or therein prevent the holder of any Security or the Trustee on their
behalf from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture.
Without limiting the foregoing, nothing contained in this
Article Thirteen will restrict the right of the Trustee or the holders of the
Securities to take any action to declare the Guarantee provided for herein to
be due and payable prior to thc Stated Maturity of the Securities pursuant to
Section 502 or to pursue any rights or remedies hereunder.
SECTION 1303. NOTICE TO TRUSTEE. Each of the Guarantors
shall give prompt written notice to the Trustee of any fact known to any one
of the Guarantors which prohibits the making of any payment to or by the
Trustee in respect of the Guarantees pursuant to the provisions of this
Article Thirteen other than any agreement in effect on the date hereof.
SECTION 1304. THIS ARTICLE NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of, premium, if any,
interest or Additional Amounts, if any, on the Securities by reason of any
provision of this Article will not be construed as preventing the occurrence
of an Event of Default.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 1401. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company, the Guarantors and the Trustee each covenants and agrees and
each Holder, by its acceptance of a Security, likewise covenants and agrees
that all Securities shall be issued subject to the provisions of this Article
Fourteen; and each Person holding any Security, whether upon original issue
or upon transfer, assignment or exchange thereof, accepts and agrees that
Senior Subordinated Obligations shall, to the extent and in the manner set
forth in this Article Fourteen, be subordinated in right of payment to the
prior payment in full, in cash or cash equivalents, of all amounts payable
under Senior Indebtedness, including, without limitation, the Company's
obligations under the Credit Facilities (including any interest accruing
subsequent to an event specified in Sections 501(7) and 501(8) of this
Indenture, whether or not such interest is an allowed claim enforceable
against the debtor under the United States Bankruptcy Code).
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SECTION 1402. NO PAYMENT ON SECURITIES IN CERTAIN
CIRCUMSTANCES. (a) During the continuance of any default in the payment of
any Senior Indebtedness beyond any applicable grace period, no payment (other
than payments previously made pursuant to Article Twelve) or distribution of
any assets of the Company of any kind or character shall be made by the
Company on account of Senior Subordinated Obligations (other than such
payments or distributions as may be agreed to by the lenders under the
Designated Senior Indebtedness in accordance with the terms of the Designated
Senior Indebtedness) unless and until such default shall have been cured or
waived or shall have ceased to exist or the Senior Indebtedness with respect
to which such payment default shall have occurred shall have been discharged
or paid in full in cash or in any other form acceptable to the holders of
such Senior Indebtedness (or such payment shall be duly provided for to the
satisfaction of the holders of such Senior Indebtedness), after which the
Company shall resume making any and all required payments in respect of
Senior Subordinated Obligations, including any missed payments.
(b) During the continuance of any non-payment event of
default with respect to any Designated Senior Indebtedness (as such event of
default is defined in the instrument creating or evidencing such Designated
Senior Indebtedness) pursuant to which the maturity thereof may be
accelerated (a "NON-PAYMENT DEFAULT") and after receipt by the Trustee and
the Company from a representative of the holders of such Designated Senior
Indebtedness of written notice of such event of default, no payment (other
than payments previously made pursuant to Article Twelve) or distribution of
any assets of the Company of any kind or character (other than such payments
or distributions as may be agreed to by the holders of such Designated Senior
Indebtedness in accordance with the terms of the agreement governing such
Designated Senior Indebtedness and, only to the extent acceptable to holders
of the Securities, payment (i) in Qualified Capital Stock issued by the
Company to pay interest on the Securities or issued in exchange for the
Securities, (ii) in securities substantially identical to the Securities
issued by the Company in payment of interest accrued thereon or (iii) in
securities issued by the Company which are subordinated to the Senior
Indebtedness at least to the same extent as the Securities and do not provide
for the payment of principal or mandatory redemption or repurchase prior to
the final maturity of such Designated Senior Indebtedness) shall be made by
the Company on account of Senior Subordinated Obligations for the period
specified below (the "PAYMENT BLOCKAGE PERIOD").
The Payment Blockage Period shall commence upon the receipt of
notice of the Non-payment Default by the Trustee from a Representative of the
holders of any Designated Senior Indebtedness and shall end on the earliest
of (i) the first date on which 179 days shall have elapsed since the receipt
of such written notice, (ii) the date on which such Non-payment Default is
cured, waived or ceases to exist or on which such Designated Senior
Indebtedness is discharged or paid in full in cash or in any other manner
acceptable to the holders of Designated Senior Indebtedness (as determined in
accordance with the terms of the agreement governing such Designated Senior
Indebtedness) (or the date on which payment shall be duly provided for to the
satisfaction of the holders of such Designated Senior Indebtedness) or (iii)
the date on which such Payment Blockage Period shall have been terminated by
written notice to the Company or the Trustee from the Representative of, or
the holders of at least a majority in principal amount of, the Designated
Senior Indebtedness initiating such Payment Blockage Period, after which, in
the case of clause (i), (ii) and (iii), the Company shall resume making any
and all required payments in respect of Senior Subordinated Obligations,
including any missed
83
payments. In no event will a Payment Blockage Period extend beyond 179 days
from the date of the receipt by the Company or the Trustee of the notice
initiating such Payment Blockage Period (such 179-day period referred to as
the "INITIAL PERIOD"). Any number of notices of Non-payment Defaults may be
given during the Initial Period; PROVIDED that during any 365 consecutive day
period, only one such period during which payment of principal of, or
interest or Additional Amounts, if any, on, the Securities may not be made
may be commenced, and the duration of such period may not exceed 179 days. No
Non-payment Default with respect to Designated Senior Indebtedness which
existed or was continuing on the date of the commencement of any Payment
Blockage Period will be, or can be, made the basis for the commencement of a
second Payment Blockage Period, whether or not within a period of 365
consecutive days, unless such event of default has been cured or waived for a
period of not less than 90 consecutive days.
(c) In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee or any Holder when such payment is
prohibited by Section 1402(a) or 1402(b) of this Indenture, the Trustee shall
promptly notify the holders of Senior Indebtedness of such prohibited payment
and such payment shall be held in trust for the benefit of, and shall be paid
over or delivered to, the holders of Senior Indebtedness or their respective
Representatives, or to the trustee or trustees under any indenture pursuant
to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, but only to the extent that, upon notice
from the Trustee to the holders of Senior Indebtedness that such prohibited
payment has been made, the holders of the Senior Indebtedness (or their
Representative or Representatives or a trustee) within 30 days of receipt of
such notice from the Trustee notify the Trustee of the amounts then due and
owing on the Senior Indebtedness, if any, and only the amounts specified in
such notice to the Trustee shall be paid to the holders of Senior
Indebtedness and any excess above such amounts due and owing on Senior
Indebtedness shall be paid to the Company.
SECTION 1403. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION.
ETC. (a) Upon any payment or distribution of assets or securities of the
Company, of any kind or character, whether in cash, property or securities,
upon any dissolution or winding up or total or partial liquidation or
reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or
to become due upon all Senior Indebtedness (including any interest accruing
subsequent to an event specified in Sections 501(7) and 501(8) of this
Indenture, whether or not such interest is an allowed claim enforceable
against the debtor under the United States Bankruptcy Code) shall first be
paid in full, in cash or cash equivalents, before the Holders or the Trustee
on behalf of the Holders shall be entitled to receive any payment by the
Company on account of Senior Subordinated Obligations, or any payment to
acquire any of the Securities for cash, property or securities, or any
distribution with respect to the Securities of any cash, property or
securities. Before any payment may be made by the Company of any Senior
Subordinated Obligations upon any such dissolution, winding up, liquidation
or reorganization, any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders or the Trustee on behalf of the Holders would be entitled,
but for the provisions of this Article Fourteen, shall be made by the Company
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person making such payment or distribution, or by the Holders
or the Trustee if received by them or it, directly to the holders of Senior
Indebtedness (PRO RATA to such holders on the basis of the respective amounts
of Senior Indebtedness held by such holders)
84
or their Representatives, or to any trustee or trustees under any other
indenture pursuant to which any such Senior Indebtedness may have been
issued, as their respective interests appear, to the extent necessary to pay
all such Senior Indebtedness in full, in cash or cash equivalents after
giving effect to any concurrent payment, distribution or provision therefor
to or for the holders of such Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether
by the Company, as proceeds of security or enforcement of any right of setoff
or otherwise) is declared to be fraudulent or preferential, set aside, or
required to be paid to any receiver, trustee in bankruptcy, liquidating
trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then if such payment is
recovered by, or paid over to, such receiver, taste in bankruptcy,
liquidating trustee, agent or other similar Person, the Senior Indebtedness
or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred. To the extent
the obligation to repay any Senior Indebtedness is declared to be fraudulent,
invalid or otherwise set aside under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then the obligation so
declared fraudulent, invalid or otherwise set aside (and all other amounts
that would come due with respect thereto had such obligation not been so
affected) shall be deemed to be reinstated and outstanding as Senior
Indebtedness for all purposes hereof as if such declaration, invalidity or
setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of the Company of any kind or character, whether in
cash, property or securities, shall be received by the Trustee or any Holder
at a time when such payment or distribution is prohibited by Section 1403(a)
of this Indenture and before all obligations in respect of Senior
Indebtedness are paid in full, in cash or cash equivalents, such payment or
distribution shall be received and held in trust for the benefit of, and
shall be paid over or delivered to, the holders of Senior Indebtedness (pro
rata to such holders on the basis of the respective amount of Senior
Indebtedness held by such holders) or their Representatives or to the trustee
or trustees under any other indenture pursuant to which any such Senior
Indebtedness may have been issued, as their respective interests appear, for
application to the payment of Senior Indebtedness remaining unpaid until all
such Senior Indebtedness has been paid in full, in cash or cash equivalents,
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Indebtedness.
(d) For purposes of this Section 1403, the words "cash,
property or securities" shall not be deemed to include (so long as the effect
of this clause is not to cause the Securities to be treated in any case or
proceeding or similar event described in this Section 1403 as part of the
same class of claims as the Senior Indebtedness or any class of claims pari
passu with, or senior to, the Senior Indebtedness for any payment or
distribution), securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment that are subordinated, at
least to the extent that the Securities are subordinated, to the payment of
all Senior Indebtedness then outstanding; provided that (1) if a new
corporation results from such reorganization or readjustment, such
corporation assumes the Senior Indebtedness and (2) the rights of the holders
of the Senior Indebtedness are not, without the consent of such holders,
altered by such reorganization or readjustment. The consolidation of the
Company with, or the
85
merger of the Company with or into, another corporation or the liquidation or
dissolution of the Company following the sale, conveyance, transfer, lease or
other disposition of all or substantially all of its property and assets to
another corporation upon the terms and conditions provided in Article Eight
of this Indenture shall not be deemed a dissolution, winding up, liquidation
or reorganization for the purposes of this Section 1403 if such other
corporation shall, as a part of such consolidation, merger, sale, conveyance,
transfer, lease or other disposition, comply with the conditions stated in
Article Eight of this Indenture.
SECTION 1404. SUBROGATION. (a) Upon the payment in full of
all Senior Indebtedness in cash or cash equivalents, the Holders shall be
subrogated to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company made
on such Senior Indebtedness until the principal of, premium, if any, interest
and Additional Amounts, if any, on the Securities shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to
which the Holders or the Trustee on their behalf would be entitled except for
the provisions of this Article Fourteen, and no payment pursuant to the
provisions of this Article Fourteen to the holders of Senior Indebtedness by
Holders or the Trust on their behalf shall, as between the Company, their
creditors other than holders of Senior Indebtedness, and the Holders, be
deemed to be a payment by the Company to or on account of the Senior
Indebtedness. It is understood that the provisions of this Article Fourteen
are intended solely for the purpose of defining the relative rights of the
Holders, on the one hand, and the holders of the Senior Indebtedness, on the
other hand.
(b) If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Fourteen
shall have been applied, pursuant to the provisions of this Article Fourteen,
to the payment of all amounts payable under Senior Indebtedness, then, and in
such case, the Holders shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full,
in cash or cash equivalents, of such Senior Indebtedness of such holders.
SECTION 1405. OBLIGATIONS OF COMPANY UNCONDITIONAL. (a)
Nothing contained in this Article Fourteen or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company and
the Holders, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any,
interest and Additional Amounts, if any, on the Securities as and when the
same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Holders or the Trustee on their behalf
from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this
Article Fourteen of the holders of the Senior Indebtedness.
(b) Without limiting the generality of the foregoing, nothing
contained in this Article Fourteen will restrict the right of the Trustee or
the Holders to take any action to declare the Securities to be due and
payable prior to their Stated Maturity pursuant to Section 502 of this
Indenture or to pursue any rights or remedies hereunder; PROVIDED, HOWEVER,
that all Senior Indebtedness then due and payable or thereafter declared to
be due and payable shall first be paid
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in full, in cash or cash equivalents, before the Holders or the Trustee are
entitled to receive any direct or indirect payment from the Company of Senior
Subordinated Obligations.
SECTION 1406. NOTICE TO TRUSTEE. (a) The Company shall give
prompt written notice to the Trustee of any fact known to the Company that
would prohibit the making of any payment to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article Fourteen. The
Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Indebtedness or of any other
facts that would prohibit the making of any payment to or by the Trustee
unless and until the Trustee shall have received notice in writing at its
Corporate Trust Office to that effect signed by an Officer of the Company, or
by a holder of Senior Indebtedness, or trustee or agent therefor; and prior
to the receipt of any such written notice, the Trustee shall, subject to
Article Six, be entitled to assume that no such facts exist; PROVIDED that,
if the Trustee shall not have received the notice provided for in this
Section 1406 at least two Business Days prior to the date upon which, by the
terms of this Indenture, any monies shall become payable for any purpose
(including, without limitation, the payment of the principal of, premium, if
any, interest or Additional Amounts, if any, on any Security), then,
notwithstanding anything herein to the contrary, the Trustee shall have full
power and authority to receive any monies from the Company and to apply the
same to the purpose for which they were received, and shall not be affected
by any notice to the contrary that may be received by it on or after such
prior date except for an acceleration of the Securities prior to such
application. Nothing contained in this Section 1406 shall limit the right of
the holders of Senior Indebtedness to recover payments as contemplated by
this Article Fourteen. The foregoing shall not apply if the Paying Agent is
the Company. The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself or itself to be a holder of
any Senior Indebtedness (or a Trustee on behalf of, or other Representative
of, such holder) to establish that such notice has been given by a holder of
such Senior Indebtedness or a trustee or Representative on behalf of any such
holder.
(b) In the event that the Trustee determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article Fourteen, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the
amount of Senior Indebtedness held by such Person, the extent to which such
Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article
Fourteen and, if such evidence is not furnished to the Trustee, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 1407. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets or securities
referred to in this Article Fourteen, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding up, liquidation or
reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person making such payment or distribution, delivered to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness and
other
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Indebtedness of the Company, the amount hereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article Fourteen.
SECTION 1408. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. (a)
The Trustee and any Paying Agent shall be entitled to all the rights set
forth in this Article Fourteen with respect to any Senior Indebtedness that
may at any time be held by it in its individual or any other capacity to the
sane extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee or any Paying Agent of any of its rights
as such holder.
(b) With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Fourteen, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Indenture against the Trustee. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior indebtedness (except as provided in Sections 1402(c) and 1403(c) of
this Indenture) and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property, or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article Fourteen or otherwise.
SECTION 1409. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS. No right of any
present or future holders of any Senior Indebtedness to enforce subordination
as provided in this Article Fourteen will at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof that any such holder may have or
otherwise be charged with. The provisions of this Article Fourteen are
intended to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
SECTION 1410. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF SECURITIES. Each Holder by his acceptance of any Securities
authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Fourteen, and appoints the Trustee his
attorney-in-fact for such purposes, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency, receivership. reorganization or similar
proceedings or upon an assignment for the benefit of creditors or otherwise)
tending towards liquidation of the property and assets of the Company, the
filing of a claim for the unpaid balance of its Securities in the form
required in those proceedings. If the Trustee does not file a proper claim or
proof of indebtedness in the form required in such proceeding at least 5 days
before the expiration of the time to file such claim or claims, each holder
of Senior Indebtedness is hereby authorized to file an appropriate claim for
and on behalf of the Holders.
SECTION 1411. NOT TO PREVENT EVENTS OF DEFAULT. The failure
to make a payment on account of principal of, premium, if any, or interest on
the Securities by reason of any provision of this Article Fourteen will not
be construed as preventing the occurrence of an Event of Default.
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SECTION 1412. TRUSTEE'S COMPENSATION NOT PREJUDICED. Nothing
in this Article Fourteen will apply to amounts due to the Trustee pursuant to
other sections of this Indenture.
SECTION 1413. NO WAIVER OF SUBORDINATION PROVISIONS. Without
in any way limiting the generality of Section 1409 of this Indenture, the
holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing
the subordination provided in this Article Fourteen or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness or any
instrument evidencing the same or any agreement under which Senior
Indebtedness is outstanding or secured; (b) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (c) release any Person liable in any manner for the
collection of Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1414. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Fourteen or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in
Section 1402 or 1403 of this Indenture, from making payments of principal of,
premium, if any, interest and Additional Amounts, if any, on the Securities,
or from depositing with the Trustee any money for such payments, or (ii) the
application by the Trustee of any money deposited with it for the purpose of
making such payments of principal of, premium, if any, interest and
Additional Amounts, if any, on the Securities to the holders entitled thereto
unless, at least two Business Days prior to the date upon which such payment
becomes due and payable, the Trustee shall have received the written notice
provided for in Section 1402(b) of this Indenture (or there shall have been
an acceleration of the Securities prior to such application) or in Section
1406 of this Indenture. The Company shall give prompt written notice to the
Trustee of any dissolution, winding up, liquidation or reorganization of the
Company.
ARTICLE FIFTEEN
SUBORDINATION OF GUARANTEES
SECTION 1501. GUARANTEES SUBORDINATED TO SENIOR GUARANTOR
INDEBTEDNESS. The Company, the Guarantors and the Trustee each covenants and
agrees and each Holder, by its acceptance of a Security, likewise covenants
and agrees that the Guarantees shall be issued subject to the provisions of
this Article Fifteen; and each Person holding any Security, whether upon
original issue or upon transfer, assignment or exchange thereof, accepts and
agrees that Senior Subordinated Guarantor Obligations shall, to the extent
and in the manner set forth in this Article Fifteen, be subordinated in right
of payment to the prior payment in full, in cash or cash equivalents, of all
amounts payable under Senior Guarantor Indebtedness, including, without
limitation, the obligations of the Guarantors under the Credit Facilities
(including any interest accruing subsequent to an event specified in Sections
501(7) and 501(8) of this Indenture, whether or not such interest is an
allowed claim enforceable against the debtor under the United States
Bankruptcy Code).
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SECTION 1502. NO PAYMENT ON GUARANTEES OF SECURITIES IN
CERTAIN CIRCUMSTANCES. (a) During the continuance of any default in the
payment of any Senior Guarantor Indebtedness beyond any applicable grace
period, no payment (other than payments previously made pursuant to Article
Twelve) or distribution of any assets of any Guarantor of any kind or
character shall be made by the Guarantors on account of Senior Subordinated
Guarantor Obligations (other than such payments or distributions as may be
agreed to by the lenders under the Credit Facilities in accordance with the
terms of the Credit Facilities) unless and until such default shall have been
cured or waived or shall have ceased to exist or the Senior Guarantor
Indebtedness with respect to which such payment default shall have occurred
shall have been discharged or paid in full in cash or in any other form
acceptable to the holders of such Senior Guarantor Indebtedness (or such
payment shall be duly provided for to the satisfaction of the holders of the
Senior Guarantor indebtedness), after which the Guarantors shall resume
making any and all required payments in respect of Senior Subordinated
Guarantor Obligations, including any missed payments.
(b) During the continuance of any non-payment event of default
with respect to any Designated Senior Guarantor Indebtedness (as such event
of default is defined in the instrument creating or evidencing such
Designated Senior Guarantor Indebtedness) pursuant to which the maturity
thereof may be accelerated (a "NON-PAYMENT DEFAULT") and after receipt by the
Trustee and the Guarantors from a representative of the holders of such
Designated Senior Guarantor indebtedness of written notice of such event of
default, no payment (other than payments previously made pursuant to Article
Twelve) or distribution of any assets of any Guarantor of any kind or
character (other than such payments or distributions as may be agreed to by
the holders of such Designated Senior Guarantor Indebtedness in accordance
with the terms of the agreement governing such Designated Senior Guarantor
indebtedness) shall be made by the Guarantors on account of Senior
Subordinated Guarantor Obligations for the period specified below (the
"PAYMENT BLOCKAGE PERIOD.").
The Payment Blockage Period shall commence upon the receipt of
notice of the Non-payment Default by the Trustee from a Representative of the
holder of any Designated Senior Guarantor Indebtedness and shall end on the
earliest of (i) the first date on which 179 days shall have elapsed since the
receipt of such written notice, (ii) the date on which such Non-payment
Default is cured, waived or ceases to exist or on which such Designated
Senior Guarantor Indebtedness is discharged or paid in full in cash or in any
other manner acceptable to the holders of Designated Senior Guarantor
Indebtedness (as determined in accordance with the terms of the agreement
governing such Designated Senior Guarantor indebtedness) (or the date on
which payment shall be duly provided for to the satisfaction of the holders
of such Designated Senior Guarantor Indebtedness) or (iii) the date on which
such Payment Blockage Period shall have been terminated by written notice to
the Guarantors or the Trustee from the Representative of, or the holders of
at least a majority in principal amount of, the Designated Senior Guarantor
Indebtedness initiating such Payment Blockage Period, after which, in the
case of clause (i), (ii) and (iii), the Guarantors shall resume making any
and all required payments in respect of Senior Subordinated Guarantor
Obligations, including any missed payments. In no event will a Payment
Blockage Period extend beyond 179 days from the date of the receipt by the
Guarantors or the Trustee of the notice initiating such Payment Blockage
Period (such 179-day period referred to as the "INITIAL PERIOD"). Any number
of notices of Non-payment Defaults may be given during the Initial Period;
PROVIDED that during any 365 consecutive day period, only one
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such period during which payment of principal of, or interest on, the Notes
may not be made may be commenced, and the duration of such period may not
exceed 179 days. No Non-payment Default with respect to Designated Senior
Guarantor Indebtedness which existed or was continuing on the date of the
commencement of any Payment Blockage Period will be, or can be, made the
basis for the commencement of a second Payment Blockage Period, whether or
not within a period of 365 consecutive days, unless such event of default has
been cured or waived for a period of not less than 90 consecutive days.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is
prohibited by Section 1502(a) or 1502(b) of this Indenture, the Trustee shall
promptly notify the holders of Senior Guarantor Indebtedness of such
prohibited payment and such payment shall be held in trust for the benefit
of, and shall be paid over or delivered to, the holders of Senior Guarantor
Indebtedness or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Guarantor
Indebtedness may have been issued, as their respective interest may appear,
but only to the extent that, upon notice from the Trustee to the holders of
Senior Guarantor Indebtedness that such prohibited payment has been made, the
holders of the Senior Guarantor Indebtedness (or their Representative or
Representatives or a trustee) within 30 days of receipt of such notice from
the Trustee notify the Trustee of the amounts then due and owing on the
Senior Guarantor Indebtedness, if any, and only the amounts specified in such
notice to the Trustee shall be paid to the holders of Senior Guarantor
Indebtedness and any excess above such amounts due and owing on Senior
Guarantor Indebtedness shall be paid to United.
SECTION 1503. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
(a) Upon any payment or distribution of assets or securities of any of the
Guarantors, of any kind or character, whether in cash, property or
securities, upon any dissolution or winding up or total or partial
liquidation or reorganization of any of the Guarantors, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due or to become due upon all Senior Guarantor Indebtedness
(including any interest accruing subsequent to an event specified in Sections
501(7) and 501(8) of this Indenture, whether or not such interest is an
allowed claim enforceable against the debtor under the United States
Bankruptcy Code) shall first be paid in full, in cash or cash equivalents,
before the Holders or the Trustee on behalf of the Holders shall be entitled
to receive any payment by such Guarantor on account of Senior Subordinated
Guarantor Obligations, or any payment to acquire any of the Securities for
cash, property or securities, or any distribution with respect to the
Securities of any cash, property or securities. Before any payment may be
made by the Guarantors of any Senior Subordinated Guarantor Obligations upon
any such dissolution, winding up, liquidation or reorganization, any payment
or distribution of assets or securities of any of the Guarantors of any kind
or character, whether in cash, property or securities, to which the Holders
or the Trustee on behalf of the Holders would be entitled, but for the
provisions of this Article Fifteen, shall be made by any Guarantor or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person making such payment or distribution, or by the Holders or the Trustee
if received by them or it, directly to the holders of Senior Guarantor
Indebtedness (PRO RATA to such holders on the basis of the respective amounts
of Senior Guarantor Indebtedness held by such holders) or their
Representatives, or to any trustee or trustees under any other indenture
pursuant to which any such Senior Guarantor Indebtedness may have been
issued, as their respective interests appear, to the extent necessary to pay
all such Senior Guarantor Indebtedness in full, in cash or cash
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equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Guarantor
Indebtedness.
(b) To the extent any payment of Senior Guarantor Indebtedness
(whether by a Guarantor, as proceeds of security or enforcement of any right
of setoff or otherwise) is declared to be fraudulent or preferential, set
aside, or required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar Person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then if such
payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person, the Senior
Guarantor Indebtedness or part thereof originally intended to be satisfied
shall be deemed to be reinstated and outstanding as if such payment had not
occurred. To the extent the obligation to repay any Senior Guarantor
Indebtedness is declared to be fraudulent, invalid, or otherwise set aside
under any bankruptcy, insolvency, receivership, fraudulent conveyance or
similar law, then the obligation so declared fraudulent, invalid or otherwise
set aside (and all other amounts that would come due with respect thereto had
such obligation not been so affected) shall be deemed to be reinstated and
outstanding as Senior Guarantor Indebtedness for all purposes hereof as if
such declaration, invalidity or setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of any of the Guarantors of any kind or character,
whether in cash, property or securities, shall be received by the Trustee or
any Holder at a time when such payment or distribution is prohibited by
Section 1503(a) of this Indenture and before all obligations in respect of
Senior Guarantor Indebtedness are paid in full, in cash or cash equivalents,
such payment or distribution shall he received and held in trust for the
benefit of, and shall be paid over or delivered to the holders of Senior
Guarantor Indebtedness (PRO RATA to such holders on the basis of the
respective amount of Senior Guarantor Indebtedness held by such holders) or
their Representatives or to the trustee or trustees under any other indenture
pursuant to which any such Senior Guarantor Indebtedness may have been
issued, as their respective interests appear, for application to the payment
of Senior Guarantor Indebtedness remaining unpaid until all such Senior
Guarantor Indebtedness has been paid in full, in cash or cash equivalents,
after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Guarantor Indebtedness.
For purposes of this Section 1503, the words "cash, property
or securities" shall not be deemed to include (so long as the effect of this
clause is not to cause the Securities to be treated in any case or proceeding
or similar event described in this Section 1503 as part of thc same class of
claims as the Senior Guarantor Indebtedness or any class of claims PARI PASSU
with, or senior to, the Senior Guarantor Indebtedness for any payment or
distribution), securities of any of the Guarantors or any other corporation
provided for by a plan of reorganization or readjustment that are
subordinated, at least to the extent that the Securities are subordinated, to
the payment of all Senior Guarantor Indebtedness then outstanding; PROVIDED
that (1) if a new corporation results from such reorganization or
readjustment, such corporation assumes the Senior Guarantor Indebtedness and
(2) the rights of the holders of the Senior Guarantor Indebtedness are not,
without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of any of the Guarantors with, or the merger
of any of the Guarantors with or into, another corporation or the liquidation
or dissolution of any of the
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Guarantors following the sale, conveyance, transfer, lease or other
disposition of all or substantially all of its property and assets to another
corporation upon the terms and conditions provided in Article Eight of this
Indenture shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section 1503 if such other
corporation shall, as a part of such consolidation, merger, sale, conveyance,
transfer, lease or other disposition, comply with the conditions stated in
Article Eight of this Indenture.
SECTION 1504. SUBROGATION. (a) Upon the payment in full of
all Senior Guarantor Indebtedness in cash or cash equivalents, the Holders
shall be subrogated to the rights of the holders of Senior Guarantor
Indebtedness to receive payments or distributions of cash, property or
securities of United made on such Senior Guarantor Indebtedness until the
principal of, premium, if any, and interest on the Securities shall be paid
in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Guarantor Indebtedness of any
cash, property or securities to which the Holders or the Trustee on their
behalf would be entitled except for the provisions of this Article Fifteen,
and no payment pursuant to the provisions of this Article Fifteen to the
holders of Senior Guarantor Indebtedness by Holders or the Trust on their
behalf shall, as between any of the Guarantors, their creditors other than
holders of Senior Guarantor Indebtedness, and the Holders, be deemed to be a
payment by any of the Guarantors to or on account of the Senior Guarantor
Indebtedness. It is understood that the provisions of this Article Fifteen
are intended solely for the purpose of defining the relative rights of the
Holders, on-the one hand, and the holders of the Senior Guarantor
Indebtedness, on the other hand.
(b) If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Fifteen
shall have been applied, pursuant to the provisions of this Article Fifteen,
to the payment of all amounts payable under Senior Guarantor Indebtedness,
then, and in such case, the Holders shall be entitled to receive from the
holders of such Senior Guarantor Indebtedness any payments or distributions
received by such holders of Senior Guarantor Indebtedness in excess of the
amount required to make payment in full, in cash or cash equivalents, of such
Senior Guarantor Indebtedness of such holders.
SECTION 1505. OBLIGATIONS OF COMPANY UNCONDITIONAL. (a)
Nothing contained in this Article Fifteen or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Guarantors and
the Holders, the obligation of any of the Guarantors, which is absolute and
unconditional, to pay to the Holders the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable
in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of any of the Guarantors other
than the holders of the Senior Guarantor Indebtedness, nor shall anything
herein or therein prevent the Holders or the Trustee on their behalf from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article
Fifteen of the holders of the Senior Guarantor Indebtedness.
(b) Without limiting the generality of the foregoing, nothing
contained in this Article Fifteen will restrict the right of the Trustee or
the Holders to take any action to declare the Securities to be due and
payable prior to their Stated Maturity pursuant to Section 502 of this
Indenture or to pursue any rights or remedies hereunder; PROVIDED, HOWEVER,
that all Senior Guarantor Indebtedness then due and payable or thereafter
declared to be due and payable shall
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first be paid in full, in cash or cash equivalents, before the Holders or the
Trustee are entitled to receive any direct or indirect payment from the
Guarantors of Senior Subordinated Guarantor Obligations.
SECTION 1506. NOTICE TO TRUSTEE. (a) Each Guarantor shall
give prompt written notice to the Trustee of any fact known to such Guarantor
that would prohibit the making of any payment to or by the Trustee in respect
of the Securities pursuant to the provisions of this Article Fifteen. The
Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Guarantor Indebtedness or of
any other facts that would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall have received notice in writing at
its Corporate Trust Office to that effect signed by an Officer of such
Guarantor, or by a holder of Senior Guarantor Indebtedness, or trustee or
agent therefor; and prior to the receipt of any such written notice, the
Trustee shall, subject to Article Six, be entitled to assume that no such
facts exist; PROVIDED that, if the Trustee shall not have received the notice
provided for in this Section 1506 at least two Business Days prior to the
date upon which, by the terms of this Indenture, any monies shall become
payable for any purpose (including, without limitation, the payment of the
principal of, premium, if any, or interest on any Security), then,
notwithstanding anything herein to the contrary, the Trustee shall have full
power and authority to receive any monies from such Guarantor and to apply
the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary that may be received by it on or after
such prior date except for an acceleration of the Securities prior to such
application. Nothing contained in this Section 1506 shall limit the right of
the holders of Senior Guarantor Indebtedness to recover payments as
contemplated by this Article Fifteen. The foregoing shall not apply if the
Paying Agent is such Guarantor. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself or itself
to be a holder of any Senior Guarantor Indebtedness (or a trustee on behalf
of, or other Representative of, such holder) to establish that such notice
has been given by a holder of such Senior Guarantor Indebtedness or a trustee
or Representative on behalf of any such holder.
(b) In the event that the Trustee determines in good faith
that any evidence is required with respect to the right of any Person as a
holder of Senior Guarantor Indebtedness to participate in any payment or
distribution pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Guarantor Indebtedness held by such Person, the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article Fifteen and, if such evidence is not furnished to the Trustee,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 1507. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets or securities
referred to in this Article Fifteen, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding up, liquidation or
reorganization proceedings are pending, or upon a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other similar
Person making such payment or distribution, delivered to the Trustee or to
the Holders for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Guarantor
Indebtedness and
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other Indebtedness of any of the Guarantors, the amount hereof or payable
thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Fifteen.
SECTION 1508. TRUSTEE'S RELATION TO SENIOR GUARANTOR
INDEBTEDNESS. (a) The Trustee and any Paying Agent shall be entitled to all
the rights set forth in this Article Fifteen with respect to any Senior
Guarantor Indebtedness that may at any time be held by it in its individual
or any other capacity to the same extent as any other holder of Senior
Guarantor Indebtedness and nothing in this Indenture shall deprive the
Trustee or any Paying Agent of any of its rights as such holder.
(b) With respect to the holders of Senior Guarantor
Indebtedness, thc Trustee undertakes to perform or to observe only such of
its covenants and obligations as are specifically set forth in this Article
Fifteen, and no implied covenants or obligations with respect to thc holders
of Senior Guarantor Indebtedness shall be read into this Indenture against
the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Guarantor Indebtedness (except as provided in Sections
1502(c) and 1503(c) of this Indenture) and shall not be liable to any such
holders if the Trustee shall in good faith mistakenly pay over or distribute
to Holders of Securities or to the Guarantors or to any other person cash,
property or securities to which any holders of Senior Guarantor Indebtedness
shall be entitled by virtue of this Article Fifteen or otherwise.
SECTION 1509. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR
OMISSIONS OF THE GUARANTORS OR HOLDERS OF SENIOR GUARANTOR Indebtedness. No
right of any present or future holders of any Senior Guarantor Indebtedness
to enforce subordination as provided in this Article Fifteen will at any time
in any way be prejudiced or impaired by any act or failure to act on the part
of any of the Guarantors or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by any of the Guarantors with the
terms of this Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with. The provisions of this Article
Fifteen are intended to be for the benefit of, and shall be enforceable
directly by, the holders of Senior Guarantor Indebtedness.
SECTION 1510. HOLDERS AUTHORIZE TRUSTEE TO EFFECTUATE
SUBORDINATION OF GUARANTEE OF SECURITIES. Each Holder by his acceptance of
any Securities authorizes and expressly directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article Fifteen, and appoints the Trustee his
attorney-in-fact for such purposes, including, in the event of any
dissolution, winding up, liquidation or reorganization of any of the
Guarantors (whether in bankruptcy, insolvency, receivership, reorganization
or similar proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the property and assets of any of
the Guarantors, the filing of a claim for the unpaid balance of its
Securities in the form required in those proceedings. If the Trustee does not
file a proper claim or proof of indebtedness in the form required in such
proceeding at least 5 days before the expiration of the time to file such
claim or claims, each holder of Senior Guarantor Indebtedness is hereby
authorized to file an appropriate claim for and on behalf of the Holders.
95
SECTION 1511. NOT TO PREVENT EVENTS OF DEFAULT. The failure
to make a payment on account of principal of, premium, if any, or interest on
the Securities by reason of any provision of this Article Fifteen will not be
construed as preventing the occurrence of an Event of Default.
SECTION 1512. TRUSTEE'S COMPENSATION NOT PREJUDICED. Nothing
in this Article Fifteen will apply to amounts due to the Trustee pursuant to
other sections of this Indenture.
SECTION 1513. NO WAIVER OF SUBORDINATION PROVISIONS. Without
in any way limiting the generality of Section 1509 of this Indenture, the
holders of Senior Guarantor Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing
the subordination provided in this Article Fifteen or the obligations
hereunder of the Holders to the holders of Senior Guarantor Indebtedness, do
any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Guarantor
Indebtedness or any instrument evidencing the same or any agreement under
which Senior Guarantor Indebtedness is outstanding or secured; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Guarantor Indebtedness; (c) release any Person
liable in any manner for the collection of Senior Guarantor Indebtedness; and
(d) exercise or refrain from exercising any rights against the Guarantors and
any other Person.
SECTION 1514. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION.
Nothing contained in this Article Fifteen or elsewhere in this Indenture
shall prevent (i) the Guarantors, except under the conditions described in
Section 1502 or 1503 of this Indenture, from making payments of principal of,
premium, if any, and interest on the Securities, or from depositing with the
Trustee any money for such payments, or (ii) the application by the Trustee
of any money deposited with it for the purpose of making such payments of
principal of, premium, if any, and interest on the Securities pursuant to the
Guarantees thereof to the holders entitled thereto unless, at least two
Business Days prior to the date upon which such payment becomes due and
payable, the Trustee shall have received the written notice provided for in
Section 1502(b) of this Indenture (or there shall have been an acceleration
of the Securities prior to such application) or in Section 1506 of this
Indenture. Each Guarantor shall give prompt written notice to the Trustee of
any dissolution, winding up, liquidation or reorganization of such Guarantor.
96
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UNITED STATIONERS SUPPLY CO.,
as issuer of the Notes
By:
--------------------------
Title:
Attest:
--------------------------
Title:
UNITED STATIONERS INC.,
as a Guarantor
By:
--------------------------
Title:
Attest:
--------------------------
Title:
LAGASSE BROS., INC.,
as a Guarantor
By:
--------------------------
Title:
Attest:
--------------------------
Title:
97
AZERTY INCORPORATED,
as a Guarantor
By:
--------------------------
Title:
Attest:
--------------------------
Title:
POSITIVE ID WHOLESALE INC.,
as a Guarantor
By:
--------------------------
Title:
Attest:
--------------------------
Title:
AP SUPPORT SERVICES INCORPORATED,
as a Guarantor
By:
--------------------------
Title:
Attest:
--------------------------
Title:
THE BANK OF NEW YORK,
as the Trustee
By:
--------------------------
Title:
EXHIBIT A
[FACE OF SECURITY]
UNITED STATIONERS SUPPLY CO.
____% Senior Subordinated Note due 2008
CUSIP
No. ___________ $______________________
UNITED STATIONERS SUPPLY CO., an Illinois corporation (the
"Company," which term includes any successor under the Indenture hereinafter
referred to), for value received, promises to pay to _______, or its
registered assigns, the principal sum of ______________, on _____________, 2008.
Interest Rate: ____% per annum.
Interest Payment Dates: __________ and __________ of each
year commencing __________, 1998.
Regular Record Dates: _________ and _________ of each year.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
2
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its duly authorized officers.
Date: UNITED STATIONERS SUPPLY CO.
---------------------------
By:
---------------------------
Title:
Attest:
---------------------------
Title:
3
(Form of Trustee's Certificate of Authentication)
Dated:
-----------------
This is one of the ____% Senior Subordinated Notes due 2008
described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------
Authorized Signatory
4
[REVERSE SIDE OF SECURITY]
UNITED STATIONERS SUPPLY CO.
____% Senior Subordinated Note due 2008
1. PRINCIPAL AND INTEREST.
The Company will pay the principal of this Security on
________, 2008.
The Company promises to pay interest on the principal amount
of this Security on each Interest Payment Date, as set forth below, at the
rate of ____% per annum.
Interest will be payable semiannually (to the holders of
record of the Securities at the close of business on the __________ or
__________ immediately preceding the Interest Payment Date) on each Interest
Payment Date, commencing __________, 1998.
[The Holder of this Security is entitled to the benefits of the
Exchange and Registration Rights Agreement, dated as of __________, 1998,
among the Company, the Guarantors named therein and the Initial Purchasers
named therein (the "Registration Rights Agreement"). In the event that
certain events have not occurred by certain dates the Holder will be entitled
to receive Additional Amounts (as defined in the Registration Rights
Agreement) with respect to this Security.]*
Interest on this Security will accrue from the most recent
date to which interest has been paid [on this Security or the Security
surrendered in exchange herefor]** or, if no interest has been paid, from
__________, 1998; PROVIDED that, if there is no existing default in the
payment of interest and if this Security is authenticated between a Regular
Record Date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such Interest Payment Date. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and
premium, if any, and interest on overdue installments of interest, to the
extent lawful, at a rate per annum equal to the rate of interest applicable
to the Securities.
- --------------------
* Include only for Initial Securities and Private Exchange
Securities.
** Include only for Exchange Securities and Private Exchange
Securities.
5
2. METHOD OF PAYMENT.
The Company will pay interest (except defaulted interest) on
the outstanding principal amount of the Securities on each __________ and
__________ to the persons who are holders thereof (as reflected in the
Security Register at the close of business on the __________ and __________
immediately preceding the Interest Payment Date), in each case, even if the
Security is cancelled on registration of transfer or registration of exchange
after such record date; PROVIDED that, with respect to the payment of
principal, the Company will make payment to the Holder that surrenders this
Security to any Paying Agent on or after __________, 2008.
The Company will pay principal, premium, if any, interest and
Additional Amounts, if any, in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may pay principal, premium, if any, interest and Additional Amounts,
if any, by its check payable in such money. The Company may (i) mail an
interest check to a Holder's registered address (as reflected in the Security
Register) or (ii) wire transfer the interest payment to an account located in
the United States maintained by the payee. If a payment date is a date other
than a Business Day at a place of payment, payment may be made at that place
on the next succeeding day that is a Business Day and no interest shall
accrue for the intervening period.
3. PAYING AGENT AND REGISTRAR.
Initially, the Trustee will act as Paying Agent and Registrar.
The Company may change any Paying Agent or Registrar upon written notice
thereto. The Company, United, any Subsidiary or any Affiliate of any of them
may act as Paying Agent, Registrar and/or co-registrar.
4. INDENTURE; LIMITATIONS.
The Company issued the Securities under an Indenture dated as
of April __, 1998 (the "Indenture"), among the Company, the Guarantors named
therein and The Bank of New York, as trustee (the "Trustee"). Capitalized
terms herein are used as defined in the Indenture unless otherwise indicated.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act. The
Securities are subject to all such terms, and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of all such terms. To
the extent permitted by applicable law, in the event of any inconsistency
between the terms of this Security and the terms of the Indenture, the terms
of the Indenture shall control.
The Securities are general unsecured obligations of the
Company limited to $100,000,000 aggregate principal amount at maturity,
except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities pursuant to
Section 303, 304, 305, 306, 906, 1010, 1016 or 1108, and, subject to
compliance with the covenants contained in the Indenture, up to $100,000,000
aggregate principal amount of Additional Securities having substantially
identical terms and conditions as the Initial Securities.
6
This Security is one of the [Initial]* [Additional]**Securities referred to
in the Indenture. The Securities include the Initial Securities, the
Additional Securities and any Exchange Securities or Private Exchange
Securities issued in exchange for the Initial Securities or Additional
Securities pursuant to the Indenture. The Initial Securities, the Additional
Securities, the Exchange Securities and the Private Exchange Securities are
treated as a single class of securities under the Indenture.
5. GUARANTEE.
The payment of principal and interest on the Notes is
guaranteed on a senior subordinated basis by the Guarantors pursuant to
Article Thirteen of the Indenture.
6. REDEMPTION.
OPTIONAL REDEMPTION.
The Securities will be subject to redemption at any time on or
after ________, 2003, at the option of the Company, in whole or in part, on
not less than 30 nor more than 60 days' prior notice in amounts of $1,000 or
an integral multiple thereof at the following redemption prices (expressed as
percentages of the principal amount), if redeemed during the 12-month period
beginning ________ of the years indicated below:
Year Redemption Price
---- ----------------
2003...........................................______%
2004...........................................______%
2005...........................................______%
2006...........................................______%
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest and Additional Amounts, if any, to the redemption
date (subject to the right of holders of record on Regular Record Dates to
receive interest due on relevant Interest Payment Dates).
OPTIONAL REDEMPTION UPON A PUBLIC OFFERING.
In addition, at any time and from time to time on or prior to
___________, 2001, the Company may redeem up to 35% of the original principal
amount of the Securities (calculated giving effect to any issuance of
Additional Securities) within 180 days following one or more Public Equity
Offerings with the net proceeds of such offerings, at a redemption price
- -----------------------
* Include only for the Initial Securities.
** Include only for the Additional Securities.
7
equal to ___% of the principal amount thereof, together with accrued and
unpaid interest and Additional Amounts, if any, to the date of redemption
(subject to the right of Holders of record on Regular Record Dates to receive
interest due on relevant Interest Payment Dates); PROVIDED, that immediately
after giving effect to each such redemption at least 65% of the aggregate
principal amount of the Securities (as so calculated) remain outstanding
after giving effect to each such redemption. On and after the redemption
date, interest ceases to accrue on Securities or portions of Securities
called for redemption, unless the Company defaults in the payment of the
Redemption Price.
7. REPURCHASE UPON A CHANGE IN CONTROL AND ASSET SALES.
Upon the occurrence of a Change of Control, the Company is
obligated to make an offer to purchase all Outstanding Securities at a
redemption price of 101% of the principal amount thereof, plus accrued and
unpaid interest and Additional Amounts, if any, to the date of purchase. Upon
the consummation of an Asset Sale, the Company may, under certain
circumstances, be obligated to make an offer to purchase Securities with a
portion of the Net Cash Proceeds of such Asset Sale at a redemption price of
100% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of purchase.
8. DENOMINATIONS; TRANSFER; EXCHANGE.
The Securities are in registered form without coupons, in
denominations of $1,000 and integral multiples of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Securities in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture. The Registrar need
not register the transfer or exchange of any Securities selected for
redemption (except the unredeemed portion of any Security being redeemed in
part). Also, the Registrar need not register the transfer or exchange of any
Securities for a period of 15 days before a selection of Securities to be
redeemed is made.
9. PERSONS DEEMED OWNERS.
A Holder may be treated as the owner of a Security for all
purposes.
10. UNCLAIMED MONEY.
If money for the payment of principal, premium, if any, or
interest remains unclaimed for two years, the Trustee and the Paying Agent
will pay the money back to the Company at its request. After that, Holders
entitled to the money must look to the Company for payment, unless an
abandoned property law designates another Person, and all liability of the
Trustee and such Paying Agent with respect to such money shall cease.
11. DISCHARGE PRIOR TO REDEMPTION OR MATURITY.
If the Company irrevocably deposits, or causes to be
deposited, with the Trustee money or U.S. Government Obligations sufficient
to pay the then outstanding principal of,
8
premium, if any, and accrued interest on the Securities (a) to redemption or
maturity, the Company and any Guarantor will be discharged from the Indenture
and the Securities, except in certain circumstances for certain sections
thereof, and (b) to the Stated Maturity, the Company and any Guarantor will
be discharged from certain covenants set forth in the Indenture.
12. AMENDMENT; SUPPLEMENT; WAIVER.
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding,
and any existing default or compliance with any provision may be waived with
the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or the consent of any Holder,
the parties thereto may amend or supplement the Indenture or the Securities
to, among other things, cure any ambiguity, defect or inconsistency.
13. RESTRICTIVE COVENANTS.
The Indenture contains certain covenants, including, without
limitation, covenants with respect to the following matters: (i)
Indebtedness; (ii) Restricted Payments; (iii) issuances and sales of
Subsidiary stock; (iv) transactions with Affiliates; (v) Liens; (vi)
guarantees of Indebtedness by Restricted Subsidiaries; (vii) disposition of
proceeds of Asset Sales; (viii) dividends and other payment restrictions
affecting Restricted Subsidiaries; (ix) mergers and certain transfers of
assets; and (x) Senior Subordinated Indebtedness. Within 90 days after the
end of each fiscal year and within 90 days after each fiscal quarter, the
Company must report to the Trustee on compliance with such limitations.
14. SUCCESSOR PERSONS.
When a successor person or other entity assumes all the
obligations of its predecessor under the Securities and the Indenture, the
predecessor person will be released from those obligations.
15. REMEDIES FOR EVENTS OF DEFAULT.
If an Event of Default, as defined in the indenture, occurs
and is continuing, the Trustee or the Holders of not less than 25% in
principal amount of the Securities then outstanding may declare all the
Securities to be immediately due and payable. If a bankruptcy or insolvency
default with respect to United, the Company or any Significant Subsidiary
occurs and is continuing, the Securities automatically become immediately due
and payable. Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may require indemnity satisfactory
to it before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of at least a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any
trust or power.
9
16. SUBORDINATION.
The payment of the Securities will, to the extent set forth in
the Indenture, be subordinated in right of payment to the prior payment in
full, in cash, of all Senior Indebtedness.
17. TRUSTEE DEALINGS WITH COMPANY.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may make
loans to, accept deposits from, perform services for, and otherwise deal
with, the Company, the Guarantors and their Affiliates as if it were not the
Trustee.
18. AUTHENTICATION.
This Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Security.
19. CUSIP NUMBERS.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities and have directed the Trustee to 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 Securities or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
20. GOVERNING LAW.
This Security shall be governed by the laws of the State of
New York applicable to contracts to be performed entirely within that state.
21. 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).
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to United
Stationers Supply Co., 2200 East Golf Road, Des Plaines, Illinois 60016,
Attention: Secretary.
10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint such as agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
- ------------------------------------------------------------------------------
Date: Your Signature:
----------------------- --------------------------------
Signature Guarantee:
---------------------------------------------------------
(Signature must be guaranteed)
- ------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the
Registrar in addition to or substitution for, STAMP), pursuant to S.E.C. Rule
17Ad-15.
[In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Issuers or any Affiliate of the
Issuers, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
1/ / acquired for the undersigned's own account, without transfer; or
2/ / transferred to the Company; or
3/ / transferred pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
4/ / transferred pursuant to an effective registration statement under
the Securities Act; or
5/ / transferred pursuant to and in compliance with Regulation S under
the Securities Act of 1933; or
11
6/ / transferred to an institutional "accredited investor" (as defined in
Rule 501 (a)(1), (2), (3) or (7) under the Securities Act of 1933),
that has furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter appears as
Exhibit B of the Indenture); or
7/ / transferred pursuant to another available exemption from the
registration requirements of the Securities Act of 1933.
Unless one of the boxes is checked, the Trustee may refuse to register any of
the Securities evidenced by this certificate in the name of any person other
than the registered holder thereof; PROVIDED, HOWEVER, that if box (5), (6)
or (7) is checked, the Trustee or the Company may require, prior to
registering any such transfer of the Securities, in their sole discretion,
such legal opinions, certifications and other information as the Trustee or
the Company may reasonably request to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as the
exemption provided by Rule 144 under such Act.
-----------------------------
Signature
Signature Guarantee:
- -------------------------------
(Signature must be guaranteed)
- -------------------------------
Signature
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in the Securities Transfer Agents Medallion Program ("STAMP") or
such other signature guarantee medallion program as may be approved by the
Registrar in addition to or substitution for STAMP, pursuant to S.E.C. Rule
17Ad-15.]
12
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Date of Amount of Decrease Amount of Increase Principal Amount Signature of Authorized
Exchange in Principal Amount in Principal Amount of this Global Signatory of Trustee or
of this Global of this Global Security Following Custodian
Security Security Such Decrease
or Increase
13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 1010 or 1016 of the Indenture, check the box:
/ /
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 1010 or 1016 of the Indenture,
state the amount in principal amount (must be integral multiple of $1,000):
$_______________.
Date: Your Signature
------------ ------------------------------------------
(Sign exactly as your name appears on the
other side of the Security)
Signature Guarantee:
-----------------------------------------------
(Signature must be guaranteed)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions) with membership in the Securities Transfer Agents Medallion Program
("STAMP") or such other signature guarantee medallion program as may be
approved by the Registrar in addition to or substitution for STAMP, pursuant
to S.E.C. Rule 17Ad-15.
14
[THE FOLLOWING PROVISION TO BE INCLUDED ON ALL 144A CERTIFICATES]
In connection with any transfer of this Security occurring
prior to the date that is the earlier of the date of an effective
Registration Statement or _________________, the undersigned confirms that
without utilizing any general solicitation or general advertising that:
[CHECK ONE]
[ ] (a) this Security is being transferred in compliance with the
exemption from registration under the Securities Act of 1933, as
amended, provided by Rule 144A thereunder.
OR
[ ] (b) this Security is being transferred other than in accordance
with (a) above and documents are being furnished that comply with
the conditions of transfer set forth in this Security and the
Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Security in the name of any Person
other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in the Indenture shall have
been satisfied.
Date:
----------------------- -----------------------------------------------
NOTICE: The signature must correspond with the name as written upon the face
of the within-mentioned instrument in every particular, without alteration or
any change whatsoever.
Signature Guarantee:
------------------------------------
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act of 1933, as amended, and is aware that the sale to it is being
made in reliance on Rule 144A and acknowledges that it has received such
information regarding the Company and the Guarantors as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date:
---------------------------- ---------------------------------------
NOTICE: To be executed by an executive
officer.
EXHIBIT B
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
[date]
UNITED STATIONERS SUPPLY CO.
c/o The Bank of New York, as Trustee
101 Barclay Street, 21st Floor
New York, New York 10286
Attention: Corporate Trust Administration
Ladies and Gentlemen:
This certificate is delivered to request a transfer of
$_______ principal amount of the [ ]% Senior Subordinated Notes due 2008
(together with the guarantees thereon, the "SECURITIES") of United Stationers
Supply Co. (the "COMPANY").
Upon transfer, the Securities would be registered in the name
of the new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
(1) We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended (the "SECURITIES ACT")), purchasing for our own account or for the
account of an institutional "accredited investor" at least $250,000 principal
amount of the Securities, and we are acquiring the Securities not with a view
to, or for offer or sale in connection with, any distribution in violation of
the Securities Act. We have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Securities and invest in or purchase securities similar to
the Securities in the normal course of our business. We and any accounts for
which we are acting are each able to bear the economic risk of our or its
investment.
(2) We understand that the Securities have not been registered
under the Securities Act and, unless so registered, may not be sold except as
permitted in the following sentence. We agree on our own behalf and on behalf
of any investor account for which we are purchasing Securities to offer, sell
or otherwise transfer such Securities prior to the date which is two years
after the later of the date of original issue and the last date on which the
Company or any affiliate of the Company was the owner of such Notes (or any
predecessor thereto) (the "RESALE RESTRICTION TERMINATION DATE") only (a) to
the Company, (b) pursuant to a registration statement that has been declared
effective under the Securities Act, (c) in a transaction complying with the
requirements of Rule 144A under the Securities Act ("RULE 144A"), to a person
we reasonably believe is a "qualified institutional buyer" under Rule 144A (a
"QIB") that purchases for its own account or for the account of a QIB and to
whom notice is given that the transfer is being made in reliance on Rule
144A, (d) pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act, (e) to an
institutional
2
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is purchasing for its own account or for the
account of such an institutional "accredited investor", in each case in a
minimum principal amount of Securities of $250,000 or (f) pursuant to any
other available exemption from the registration requirements of the
Securities Act, subject in each of the foregoing cases to any requirement of
law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing
restrictions on resale will not apply subsequent to the Resale Restriction
Termination Date. If any resale or other transfer of the Securities is
proposed to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the
transferee substantially in the form of this letter to the Company and the
Trustee, which shall provide, among other things, that the transferee is an
institutional "accredited investor" within the meaning of Rule 501 (a)(1),
(2), (3) or (7) under the Securities Act and that it is acquiring such
Securities for investment purposes and not for distribution in violation of
the Securities Act. Each purchaser acknowledges that the Company and the
Trustee reserve the right prior to any offer, sale or other transfer prior to
the Resale Restriction Termination Date of the Securities pursuant to clause
(d), (e) or (f) above to require the delivery of an opinion of counsel,
certifications and/or other information satisfactory to the Company and the
Trustee.
TRANSFEREE:
-----------------------
BY:
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Signature Medallion Guaranteed
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION
WITH TRANSFERS PURSUANT TO REGULATION S
[date]
The Bank of New York, as Trustee
101 Barclay Street, 21st Floor
New York, New York 10286
Attention: Corporate Trust Administration
Re: United Stationers Supply Co. (the "Company")
[ ]% Senior Subordinated Notes due 2008
(TOGETHER WITH THE GUARANTEES THEREON, THE
"SECURITIES")
Ladies and Gentlemen:
In connection with our proposed sale of $__________ aggregate
principal amount of the Securities, we confirm that such sale has been
effected pursuant to and in accordance with Regulation S under the United
States Securities Act of 1933, as amended (the "SECURITIES ACT"), and,
accordingly, we represent that:
(a) the offer of the Securities was not made to a person in
the United States;
(b) either (i) at the time the buy order was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United States
or (ii) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting
on our behalf knows that the transaction has been pre-arranged with a buyer
in the United States;
(c) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act.
In addition, if the sale is made during a restricted period
and the provisions of Rule 903(c)(3) or Rule 904(c)(1) of Regulation S are
applicable thereto, we confirm that such sale has been made in accordance
with the applicable provisions of Rule 903(c)(3) or Rule 904(c)(1), as the
case may be.
You, the Company and the Guarantors are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceedings or
official inquiry with respect to the matters covered hereby. Terms used in
this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------- ------------------------------
Authorized Signature Signature Medallion Guaranteed
EXHIBIT D
UNITED STATIONERS SUPPLY CO.
___% Senior Subordinated Note
UNITED STATIONERS SUPPLY CO., an Illinois corporation (the
"Company"), for value received, promises to pay to [Restricted Subsidiary],
or its registered assigns, the principal sum of ___________ ($____________)
on ______________________.
Interest Rate:___% per annum.
Interest Payment Dates:_____________ and ___________,
commencing _______________.
Reference is hereby made to the further provisions of this
Note set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually by its duly authorized officers.
Date: UNITED STATIONERS SUPPLY CO.
-------------------------
By:
-------------------------
Title:
By:
-------------------------
Title:
D-2
UNITED STATIONERS SUPPLY CO.
____ % Subordinated Note due ___________
1. PRINCIPAL AND INTEREST.
The Company promises to pay interest on the principal amount
of this Note on each Interest Payment Date, as set forth below, at the rate
of __% per annum.
Interest will be payable [semiannually] on each Interest
Payment Date, commencing _____ .
Interest on the Note 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. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. SUBORDINATION.
The Note will be subordinated indebtedness of the Company.
Payment of the Subordinated Obligations (as defined below) will be
subordinated in right of payment to the prior payment in full, in cash or
cash equivalents, of all Senior Indebtedness, including, without limitation,
the Company's obligations under the ______% Senior Subordinated Notes due
2008.
"Subordinated Obligations" means any principal of, premium, if
any, or interest on the Note payable pursuant to the terms of the Note or
upon acceleration, including any amounts received upon the exercise of rights
of rescission or other rights of action (including claims for damages) or
otherwise, to the extent relating to the purchase price of the Note or
amounts corresponding to such principal, premium, if any, or interest on the
Note.
Upon any payment or distribution of assets or securities of
the Company, of any kind or character, whether in cash, property or
securities, in connection with any dissolution or winding up or total or
partial liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings,
all amounts due or to become due upon all Senior Indebtedness (including any
interest accruing subsequent to an event of bankruptcy, whether or not such
interest is an allowed claim enforceable against the debtor under the United
States Bankruptcy Code) shall first be paid in full, in cash or cash
equivalents, before the holders shall be entitled to receive any payment by
the Company on account of Subordinated Obligations, or any payment to acquire
the Note for cash, property or securities, or any distribution with respect
to the Note of any cash, property or securities. Before any payment may be
made by, or on behalf of, the Company on any Subordinated Obligations in
connection with any such dissolution, winding up, liquidation or
reorganization, any payment or distribution of assets or securities of the
Company of any kind or character, whether in cash, property or securities, to
which the holders would be entitled, but for the subordination provisions of
the Note, shall be made by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar person making such
payment or distribution or by the holders if received by them, directly to
the holders of the Senior indebtedness (PRO RATA to such holders on the basis
of the respective amounts of Senior Indebtedness held by such holders) or
their representatives or to any trustee or trustees under any indenture
pursuant to which any such
D-3
Senior indebtedness may have been issued, as their respective interests
appear, to the extent necessary to pay all such Senior Indebtedness in full,
in cash or cash equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
No direct or indirect payment by or on behalf of the Company
of Subordinated Obligations, whether pursuant to the terms of the Note or
upon acceleration or otherwise, shall be made if, at the time of such
payment, there exists an event of default, or a default (it being understood
that as used in that sentence a "default" with respect to any Senior
Indebtedness shall mean the happening of any event or the existence of any
condition which, after the giving of notice or the passage of time or both,
would constitute an event of default under such Senior Indebtedness) with
respect to any portion of the obligations on any Senior Indebtedness, and
such default shall not have been cured or waived or the benefits of this
sentence waived by or on behalf of the holders of such Senior indebtedness.
"Senior Indebtedness" means the following obligations of the
Company: (i) any obligation with respect to the _____% Senior Subordinated
Notes due 2008 of the Company; and (ii) all other indebtedness of the
Company, including principal, premium and interest on such indebtedness,
unless such indebtedness, by its terms or by the terms of any agreement or
instrument pursuant to which such indebtedness is outstanding, is expressly
subordinated in right of payment to any other indebtedness of the Company.
To the extent any payment of Senior Indebtedness (whether by
or on behalf of the Company, as proceeds of security or enforcement of any
right of setoff or otherwise) is declared to be fraudulent or preferential,
set aside or required to be paid to any receiver, trustee in bankruptcy,
liquidating trustee, agent or other similar person under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then if such
payment is recovered by, or paid over to, such receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar person, the Senior
Indebtedness or part thereof originally intended to be satisfied shall be
deemed to bc reinstated and outstanding as if such payment had not occurred.
To the extent the obligation to repay any Senior Indebtedness is declared to
be fraudulent, invalid, or otherwise set aside under any bankruptcy,
insolvency, receivership, fraudulent conveyance or similar law, then the
obligation so declared fraudulent, invalid or otherwise set aside (and all
other amounts that would come due with respect thereto had such obligation
not been affected) shall be deemed to be reinstated and outstanding as Senior
Indebtedness for all purposes hereof as if such declaration invalidity or
setting aside had not occurred.
EXHIBIT E
[RESTRICTED SUBSIDIARY]
____ % Senior Note due ________
$
--------------------
[RESTRICTED SUBSIDIARY], a ______________ corporation, for
value received, promises to pay to United Stationers Supply Co., the
principal sum of __________________ ($______________) on____________________.
Interest Rate: % per annum, in cash.
Interest Payment Dates: _______________ and _________________,
commencing _______________.
This Note is an unsubordinated, senior obligation of
[Restricted Subsidiary].
IN WITNESS WHEREOF, [Restricted Subsidiary] has caused
this Note to be signed manually by its duly authorized officers.
Date: [RESTRICTED SUBSIDIARY]
By:
-----------------------------
Title:
By:
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Title: