GREAT LAKES ACQUISITION CORP.
AS ISSUER
13-1/8% SENIOR DISCOUNT DEBENTURES DUE 2009
_____________
INDENTURE
DATED AS OF MAY 22, 1998
_____________
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.
TRUSTEE
TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . .25
Section 1.03. Incorporation by Reference of Trust
Indenture Act. . . . . . . . . . . . . . . . . . . . . . .25
Section 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . .26
ARTICLE 2. THE DEBENTURES
Section 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . .26
Section 2.02. Execution and Authentication. . . . . . . . . . . . . . . .27
Section 2.03. Registrar and Paying Agent. . . . . . . . . . . . . . . . .28
Section 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . .28
Section 2.05. Holder Lists. . . . . . . . . . . . . . . . . . . . . . . .29
Section 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . .29
Section 2.07. Replacement Debentures. . . . . . . . . . . . . . . . . . .42
Section 2.08. Outstanding Debentures. . . . . . . . . . . . . . . . . . .43
Section 2.09. Treasury Debentures. . . . . . . . . . . . . . . . . . . .43
Section 2.10. Temporary Debentures . . . . . . . . . . . . . . . . . . .43
Section 2.11. Cancellation. . . . . . . . . . . . . . . . . . . . . . . .44
Section 2.12. Defaulted Interest. . . . . . . . . . . . . . . . . . . . .44
ARTICLE 3. REDEMPTION
Section 3.01. Notices to Trustee. . . . . . . . . . . . . . . . . . . . .45
Section 3.02. Selection of Debentures to Be Redeemed. . . . . . . . . . .45
Section 3.03. Notice of Redemption. . . . . . . . . . . . . . . . . . . .45
Section 3.04. Effect of Notice of Redemption. . . . . . . . . . . . . . .46
Section 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . .47
Section 3.06. Debentures Redeemed in Part . . . . . . . . . . . . . . . .47
Section 3.07. Optional Redemption . . . . . . . . . . . . . . . . . . . .47
Section 3.08. No Mandatory Redemption . . . . . . . . . . . . . . . . . .48
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ARTICLE 4. COVENANTS
Section 4.01. Payment of Debentures . . . . . . . . . . . . . . . . . . .48
Section 4.02. Maintenance of Office or Agency . . . . . . . . . . . . . .49
Section 4.03. SEC Reports and Reports to Holders. . . . . . . . . . . . .49
Section 4.04. Compliance Certificate. . . . . . . . . . . . . . . . . . .50
Section 4.05. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . .50
Section 4.06. Stay, Extension and Usury Laws. . . . . . . . . . . . . . .50
Section 4.07. Limitation on Indebtedness and Issuance of
Disqualified Stock . . . . . . . . . . . . . . . . . . . .51
Section 4.08. Limitation on Liens . . . . . . . . . . . . . . . . . . . .54
Section 4.09. Limitation on Restricted Payments . . . . . . . . . . . . .54
Section 4.10. Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries. . . . . . . . . . . .58
Section 4.11. Limitation on Lines of Business . . . . . . . . . . . . . .59
Section 4.12. Limitation on Transactions with Affiliates. . . . . . . . .60
Section 4.13. Limitation on Asset Sales . . . . . . . . . . . . . . . . .60
Section 4.14. Repurchase of Debentures upon a Change of Control . . . . .64
ARTICLE 5. SUCCESSORS
Section 5.01. Merger, Consolidation or Sale of Assets . . . . . . . . . .64
Section 5.02. Successor Corporation Substituted . . . . . . . . . . . . .65
ARTICLE 6. DEFAULTS AND REMEDIES
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . .65
Section 6.02. Acceleration. . . . . . . . . . . . . . . . . . . . . . . .67
Section 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . .67
Section 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . .68
Section 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . .68
Section 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . .68
Section 6.07. Rights of Holders of Debentures to
Receive Payment. . . . . . . . . . . . . . . . . . . . . .69
Section 6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . . .69
Section 6.09. Trustee May File Proofs of Claim. . . . . . . . . . . . . .70
Section 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . .70
Section 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . .71
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ARTICLE 7. TRUSTEE
Section 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . .71
Section 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . .72
Section 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . .74
Section 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . .74
Section 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . . .74
Section 7.06. Reports by Trustee to Holders of the Debentures . . . . . .74
Section 7.07. Compensation and Indemnity. . . . . . . . . . . . . . . . .75
Section 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . .76
Section 7.09. Successor Trustee by Merger, etc. . . . . . . . . . . . . .77
Section 7.10. Eligibility; Disqualification . . . . . . . . . . . . . . .77
Section 7.11. Preferential Collection of Claims
Against Company. . . . . . . . . . . . . . . . . . . . . .77
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . . . . .78
Section 8.02. Legal Defeasance and Discharge. . . . . . . . . . . . . . .78
Section 8.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . .78
Section 8.04. Conditions to Legal or Covenant Defeasance. . . . . . . . .79
Section 8.05. Deposited Money and Government Securities to be
Held in Trust; Other Miscellaneous Provisions. . . . . . .80
Section 8.06. Repayment to Company. . . . . . . . . . . . . . . . . . . .81
Section 8.07. Reinstatement . . . . . . . . . . . . . . . . . . . . . . .81
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Debentures. . . . . . . . . .82
Section 9.02. With Consent of Holders of Debentures . . . . . . . . . . .83
Section 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . .85
Section 9.04. Revocation and Effect of Consents . . . . . . . . . . . . .85
Section 9.05. Notation on or Exchange of Debentures . . . . . . . . . . .85
Section 9.06. Trustee to Sign Amendments, etc.. . . . . . . . . . . . . .85
ARTICLE 10. MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls . . . . . . . . . . . . . . .86
Section 10.02. Notices. . . . . . . . . . . . . . . . . . . . . . . . . .86
Section 10.03. Communication by Holders of Debentures with Other
Holders of Debentures . . . . . . . . . . . . . . . . . .87
Section 10.04. Certificate and Opinion as to Conditions Precedent . . . .87
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Section 10.05. Statements Required in Certificate or Opinion. . . . . . .88
Section 10.06. Rules by Trustee and Agents. . . . . . . . . . . . . . . .88
Section 10.07. No Personal Liability of Directors, Officers,
Employees and Stockholders. . . . . . . . . . . . . . . .88
Section 10.08. Governing Law. . . . . . . . . . . . . . . . . . . . . . .89
Section 10.09. No Adverse Interpretation of Other Agreements. . . . . . .89
Section 10.10. Successors . . . . . . . . . . . . . . . . . . . . . . . .89
Section 10.11. Severability . . . . . . . . . . . . . . . . . . . . . . .89
Section 10.12. Counterpart Originals. . . . . . . . . . . . . . . . . . .89
Section 10.13. Table of Contents, Headings, Etc.. . . . . . . . . . . . .89
EXHIBITS
EXHIBIT A FORM OF DEBENTURE
EXHIBIT B FORM OF CERTIFICATE OF TRANSFER
EXHIBIT C FORM OF CERTIFICATE OF EXCHANGE
EXHIBIT D FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
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INDENTURE, dated as of May 22, 1998, among Great Lakes Acquisition
Corp., a Delaware corporation (the "Company"), and State Street Bank and Trust
Company of California, N.A., as trustee (the "Trustee").
Each party agrees as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the 13-1/8% Series A Senior Discount
Debentures due 2009 (the "Series A Debentures") and the 13-1/8% Series B Senior
Discount Debentures due 2009 (the "Series B Debentures" and, together with the
Series A Debentures, the "Debentures"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
SECTION 1.01. DEFINITIONS
"144A GLOBAL DEBENTURE" means a global debenture in the form of
Exhibit A hereto bearing the Global Debenture Legend and the Private Placement
Legend and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Debentures sold in reliance on Rule 144A.
"ACCRETED VALUE" means, as of any date of determination prior to May
15, 2003, with respect to any Debenture, the sum of (a) the initial offering
price (which shall be calculated by discounting the aggregate principal amount
at maturity of such Debenture at a rate of 13-1/8% per annum, compounded
semi-annually on each May 15 and November 15, from May 15, 2003 to the date of
issuance) of such Debenture and (b) the portion of the excess of the principal
amount at maturity of such Debenture over such initial offering price which
shall have been accreted thereon through such date, such amount to be so
accreted on a daily basis at a rate of 13-1/8% per annum of the initial
offering price of such Debenture, compounded semi-annually on each May 15 and
November 15, from the date of issuance of the Debentures through the date of
determination, computed on the basis of a 360-day year of twelve 30-day months.
The Accreted Value on and after May 15, 2003 shall cease to accrue and shall
constitute 100% of the principal amount at maturity thereof.
"ACCRUED BANKRUPTCY INTEREST" means, with respect to any Indebtedness,
all interest accruing thereon after the filing of a petition by or against the
Company or any of its Subsidiaries under any Bankruptcy Law, in accordance with
and at the rate (including any rate applicable upon any default or event of
default, to the extent lawful) specified in the documents evidencing or
governing such Indebtedness, whether or not the claim for such interest is
allowed as a claim after such filing in any proceeding under such Bankruptcy
Law.
"ACQUIRED INDEBTEDNESS" means, with respect to any specified Person,
(i) Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Subsidiary of such specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"ACQUISITION TRANSACTIONS" means the transactions contemplated by (i)
the Merger Agreement, (ii) GLC's Offer to Purchase and Consent Solicitation
Statement dated April 24, 1998 with respect to GLC's offer to purchase any and
all of its outstanding 10% Senior Secured Notes due 2006, (iii) the execution
of, and initial borrowings under, the New Credit Agreement, (iv) the execution
of this Indenture and the issuance of the Series A Debentures hereunder on the
Issue Date, and (v) the execution of the Note Indenture and the issuance of
Senior Subordinated Notes thereunder on the Issue Date.
"AFFILIATE" means, with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control with"), as used with
respect to any Person, will mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by agreement or
otherwise; PROVIDED that beneficial ownership of 10% or more of the voting
securities of a Person will be deemed to be control. Notwithstanding the
foregoing, (a) the limited partners of AIP Capital Funds will not be deemed to
be Affiliates of AIP Capital Funds or AIP solely by reason of their investment
in AIP Capital Funds and (b) no Person (other than the Company or any Subsidiary
of the Company) in whom a Receivables Subsidiary makes an Investment in
connection with a Qualified Receivables Transaction will be deemed to be an
Affiliate of the Company or any of its Subsidiaries solely by reason of such
Investment.
"AGENT" means any Registrar, Paying Agent or co-registrar.
"AIP" means American Industrial Partners, a Delaware general
partnership.
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"AIP CAPITAL FUNDS" means American Industrial Partners Capital Fund,
L.P., a Delaware limited partnership, and American Industrial Partners Capital
Fund II, L.P., a Delaware limited partnership.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Debenture, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"ASSET SALE" means (i) the sale, lease, conveyance or other
disposition that does not constitute a Restricted Payment or an Investment by
such Person of any of its non-cash assets (including, without limitation, by
way of a sale and leaseback and including the issuance, sale or other
transfer of any of the Capital Stock of any Subsidiary of such Person) other
than to the Company or to any of its Subsidiaries; and (ii) the issuance of
Equity Interests in any Subsidiaries or the sale of any Equity Interests in
any Subsidiaries, in each case, in one or a series of related transactions,
PROVIDED, that notwithstanding the foregoing, the term "Asset Sale" will not
include: (a) the sale, lease, conveyance, disposition or other transfer of
all or substantially all of the assets of the Company, as permitted pursuant
to Section 5.01; (b) the sale or lease of equipment, inventory, accounts
receivable or other assets in the ordinary course of business and to the
extent that such sales or leases are not part of a sale of the business
(unless such sale of such business would not be an Asset Sale) in which such
equipment was used or in which such inventory or accounts receivable arose;
(c) a transfer of assets by the Company to a Subsidiary of the Company or by
a Subsidiary of the Company to the Company or another Subsidiary of the
Company; (d) an issuance of Equity Interests by a Subsidiary of the Company
to the Company or to another Subsidiary of the Company; (e) the surrender or
waiver of contract rights or the settlement, release or surrender of
contract, tort or other claims of any kind; (f) the grant in the ordinary
course of business of any license of patents, trademarks, registrations
therefor and other similar intellectual property; (g) Permitted Investments
or Permitted Liens; (h) sales of accounts receivable and related assets of
the type specified in the definition of "Qualified Receivables Transaction"
to a Receivables Subsidiary for the fair market value thereof, including cash
in an amount at least equal to 75% of the book value thereof as determined in
accordance with GAAP; (i) transfers of accounts receivable and related assets
of the type specified in the definition of "Qualified Receivables
Transaction" (or a fractional undivided interest therein) by a Receivables
Subsidiary in a Qualified Receivables Transaction; and (j) the sale or
disposal of damaged, worn out or other obsolete personal property, inventory
or equipment in the ordinary course of business so long as such property is
no longer necessary for the proper conduct of the business of the Company or
such Subsidiary, as applicable. For the purposes of clause (h), notes
received in exchange for the transfer of accounts receivable and related
assets will be deemed cash if the Receivables Subsidiary or other payor is
required to repay said notes as soon as
3
practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual agreements with entities that
are not Affiliates of the Company entered into as part of a Qualified
Receivables Transaction.
"BOARD OF DIRECTORS" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors.
"BORROWING BASE" means, as of any date, an amount equal to the sum of
(a) 75% of the face amount of all accounts receivable owned by the Company and
its Subsidiaries as of such date that are not more than 90 days past due, and
(b) 50% of the book value of all inventory owned by the Company and its
Subsidiaries as of such date, minus (c) the aggregate amount of trade payables
of the Company and its Subsidiaries outstanding 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 or trade payables as of a specific date, the Company may utilize the
most recent available information for purposes of calculating the Borrowing
Base.
"BROKER-DEALER" means any broker-dealer that receives Exchange
Debentures for its own account in the Exchange Offer in exchange for Debentures
that were acquired by such broker-dealer as a result of market-making or other
trading activities.
"BUSINESS DAY" means any day other than a Legal Holiday.
"CAPITAL LEASE OBLIGATION" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on a balance sheet in
accordance with GAAP.
"CAPITAL STOCK" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"CASH EQUIVALENTS" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities not more than
twelve months from the date of acquisition,
4
(b) U.S. dollar denominated (or foreign currency fully hedged) time deposits,
certificates of deposit, Eurodollar time deposits or Eurodollar certificates
of deposit of (i) any domestic commercial bank of recognized standing having
capital and surplus in excess of $100,000,000 or (ii) any bank whose
short-term commercial paper rating from S&P is at least A-1 or the equivalent
thereof or from Moody's is at least P-1 or the equivalent thereof (any such
bank being an "Approved Lender"), in each case with maturities of not more
than twelve months from the date of acquisition, (c) commercial paper and
variable or fixed rate notes issued by any Approved Lender (or by the parent
company thereof) or any variable rate notes issued by, or guaranteed by, any
domestic corporation rated A-2 (or the equivalent thereof) or better by S&P
or P-2 (or the equivalent thereof) or better by Moody's and maturing within
twelve months of the date of acquisition, (d) repurchase agreements with a
bank or trust company or recognized securities dealer having capital and
surplus in excess of $100,000,000 for direct obligations issued by or fully
guaranteed by the United States of America in which the Company will have a
perfected first priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value of at least 100%
of the amount of repurchase obligations, (e) interests in money market mutual
funds which invest solely in assets or securities of the type described in
subparagraphs (a), (b), (c) or (d) hereof and (f) in the case of any Foreign
Subsidiary: (i) direct obligations of the sovereign nation (or any agency
thereof) in which such Foreign Subsidiary is organized and is conducting
business or in obligations fully and unconditionally guaranteed by such
sovereign nation (or any agency thereof), (ii) investments of the type and
maturity described in clauses (a) through (e) above of foreign obligors,
which investments or obligors (or the direct or indirect parents of such
obligors) have ratings described in such clauses or equivalent ratings from
comparable foreign rating agencies or (iii) investments of the type and
maturity described in clauses (a) through (e) above of foreign obligors (or
the direct or indirect parents of such obligors), which investments or
obligors (or the direct or indirect parents of such obligors) are not rated
as provided in such clauses or in clause (ii) above but which are, in the
reasonable judgment of the Company, comparable in investment quality to such
investments and obligors (or the direct or indirect parent of such obligors).
"CEDEL" means Cedel Bank, S.A., or its successors.
"CHANGE OF CONTROL" means such time as (i) prior to the initial public
offering by the Company or any direct or indirect parent of the Company of its
common stock (other than a public offering pursuant to a registration statement
on Form S-8), AIP, AIP Capital Funds or any of their respective Affiliates
(collectively, the "Initial Investors") cease to be, directly or indirectly, the
beneficial owners, in the aggregate, of a majority of the voting power of the
voting Capital Stock of the Company or (ii) after the initial public offering by
the Company or any direct or indirect parent of the Company of its common stock
(other than a public offering pursuant to a registration
5
statement on Form S-8), (A) any Schedule 13D, Form 13F or Schedule 13G under
the Exchange Act, or any amendment to such Schedule or Form, is received by
the Company which indicates that, or the Company otherwise becomes aware
that, a "person" or "group" (within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act) other than the Initial Investors or their
Related Parties (as defined below) has become, directly or indirectly, the
"beneficial owner," by way of merger, consolidation or otherwise, of 35% or
more of the voting power of the voting Capital Stock of the Company and (B)
such person or group has become, directly or indirectly, the beneficial owner
of a greater percentage of the voting Capital Stock of the Company than
beneficially owned by the Initial Investors or their Related Parties, or
(iii) the sale, lease or transfer of all or substantially all of the assets
of the Company to any person or group (other than to GLC or a Subsidiary of
GLC or to the Initial Investors or their Related Parties), or (iv) during any
period of two consecutive calendar years, individuals who at the beginning of
such period constituted the Board of Directors of the Company (together with
any new directors whose election by the Board of Directors of the Company or
whose nomination for election by the stockholders of the Company was approved
by a vote of a majority of the directors then still in office who either were
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 the directors of the Company, then in office. "Related Party"
with respect to any Initial Investor means (A) any controlling stockholder,
80% (or more) owned Subsidiary, or spouse, or immediate family member (in the
case of any individual) of such Initial Investor or (B) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or persons beneficially holding an 80% or more controlling
interest of which consist of such Initial Investor and/or such other persons
referred to in the immediately preceding clause (A).
"CONSOLIDATED EBITDA" means, with respect to the Company and its
Subsidiaries for any period, the sum of, without duplication, (i) the
Consolidated Net Income for such period, plus (ii) the Fixed Charges for such
period, plus (iii) provision for taxes based on income or profits for such
period (to the extent such income or profits were included in computing
Consolidated Net Income for such period), plus (iv) consolidated depreciation,
amortization and other non-cash charges of the Company and its Subsidiaries
required to be reflected as expenses on the books and records of the Company,
minus (v) cash payments with respect to any non-recurring, non-cash charges
previously added back pursuant to clause (iv), and (vi) excluding the impact of
foreign currency translations. Notwithstanding the foregoing, the provision for
taxes based on the income or profits of, and the depreciation and amortization
and other non-cash charges of, a Subsidiary of a Person will be added to
Consolidated Net Income to compute Consolidated EBITDA only to the extent (and
in the same proportion) that the Net Income of such Subsidiary was included in
calculating the Consolidated Net Income of such Person.
6
"CONSOLIDATED NET INCOME" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Subsidiaries for
such period, on a consolidated basis, determined in accordance with GAAP;
PROVIDED that (i) the Net Income (but not loss) of any Person that is not a
Subsidiary or that is accounted for by the equity method of accounting will be
included only to the extent of the amount of dividends or distributions paid in
cash to the referent Person or a Subsidiary, (ii) the Net Income of any Person
acquired in a pooling of interests transaction for any period prior to the date
of such acquisition will be excluded, (iii) the cumulative effect of a change in
accounting principles will be excluded, (iv) the Net Income of, or any dividends
or other distributions from, any Unrestricted Subsidiary, to the extent
otherwise included, shall be excluded, except to the extent cash or Cash
Equivalents are distributed to the Company or one of its Subsidiaries in a
transaction that does not relate to the liquidation of such Unrestricted
Subsidiary and (v) all other extraordinary gains and extraordinary losses will
be excluded.
"COPETRO CREDIT AGREEMENT" means the credit agreement, dated as of
February 4, 1997, between Copetro S.A., Banca Nazionale del Lavoro S.A. and the
other lenders party thereto, as amended, restated, supplemented or otherwise
modified from time to time.
"CORPORATE TRUST OFFICE" shall be at the address of the Trustee
specified in Section 10.02 hereof or such other address as to which the Trustee
may give notice to the Company.
"DEBENTURES CUSTODIAN" means the Trustee, as custodian with respect to
the Debentures in global form, or any successor entity thereto.
"DEFAULT" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"DEFINITIVE DEBENTURE" means a certificated Debenture registered in
the name of the Holder thereof and issued in accordance with Section 2.06
hereof, in the form of Exhibit A hereto except that such Debenture shall not
bear the Global Debenture Legend and shall not have the "Schedule of Exchanges
of Interests in the Global Debenture" attached thereto.
"DEPOSITARY" means, with respect to the Debentures issuable or issued
in whole or in part in global form, the Person specified in Section 2.03 hereof
as the Depositary with respect to the Debentures, until a successor will have
been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" will mean or include such successor.
7
"DISQUALIFIED STOCK" means any Capital Stock that, by its terms (or by
the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event (other than customary change
of control or asset sale provisions), matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is redeemable at the
option of the Holder thereof, in whole or in part, prior to the final stated
maturity of the Debentures.
"EQUITY INTERESTS" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"EQUITY OFFERING" means an underwritten public offering pursuant to a
registration statement filed with the SEC in accordance with the Securities Act
of (i) Equity Interests (other than Disqualified Stock) of the Company or
(ii) Equity Interests (other than Disqualified Stock) of the Company's parent or
indirect parent to the extent that the cash proceeds therefrom are contributed
to the equity capital of the Company or are used to purchase Equity Interests
(other than Disqualified Stock) of the Company.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE DEBENTURES" means Series B Debentures issued pursuant to an
Exchange Offer.
"EXCHANGE OFFER" means an offer that may be made by the Company
pursuant to the Registration Rights Agreement to exchange Exchange Debentures
for Series A Debentures.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in the Registration Rights Agreement.
"EXISTING INDEBTEDNESS" means the Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the New Credit Agreement) in
existence on the Issue Date, or incurred subsequent to the Issue Date pursuant
to commitments under the Copetro Credit Agreement in effect on the Issue Date,
until such amounts are repaid.
"FAIR MARKET VALUE" means the price that would be paid in an
arm's-length transaction between an informed and willing seller under no
compulsion to sell
8
and an informed and willing buyer under no compulsion to buy, as determined
in good faith by the Company.
"FINANCE SUBSIDIARY" means any Subsidiary of the Company (other than a
Subsidiary Guarantor or a Foreign Subsidiary) organized for the sole purpose of
issuing Capital Stock or other securities and loaning the proceeds thereof to
the Company or a Subsidiary Guarantor and which engages in no other transactions
except those incidental thereto.
"FINANCE SUBSIDIARY INDEBTEDNESS" means Indebtedness of, or
Disqualified Stock issued by, a Finance Subsidiary which Indebtedness or
Disqualified Stock does not have a final stated maturity and is not mandatorily
redeemable or redeemable at the option of the holder thereof, in whole or in
part, (other than pursuant to customary change of control or asset sale
provisions) prior to the final stated maturity of the Senior Subordinated Notes.
"FIXED CHARGES" means, with respect to any Person for any period, the
sum, without duplication, of (i) the consolidated interest expense of such
Person and its Subsidiaries for such period, whether paid or accrued (including,
without limitation, amortization of original issue discount, non-cash interest
payments, the interest component of any deferred payment obligations, the
interest component of all payments associated with Capital Lease Obligations,
commissions, discounts and other fees and charges incurred in respect of letter
of credit or bankers' acceptance financings, and net payments (if any) pursuant
to Hedging Obligations), and (ii) the consolidated interest expense of such
Person and its Subsidiaries that was capitalized during such period, and
(iii) any interest expense on Indebtedness of another Person that is Guaranteed
by such Person or one of its Subsidiaries or secured by a Lien on assets of such
Person or one of its Subsidiaries (whether or not such Guarantee or Lien is
called upon), and (iv) all cash dividend payments on any series of preferred
stock of such Person payable to a party other than the Company or a Subsidiary
of the Company.
"FIXED CHARGE COVERAGE RATIO" means with respect to any Person for any
period, the ratio of the Consolidated EBITDA of such Person and its Subsidiaries
for such period to the Fixed Charges of such Person and its Subsidiaries for
such period. In the event that the Company or any of its Subsidiaries incurs,
issues, assumes, retires, Guarantees, defeases or redeems any Indebtedness
(other than revolving credit borrowings) or preferred stock subsequent to the
commencement of the four-quarter reference period for which the Fixed Charge
Coverage Ratio is being calculated but on or prior to the date on which the
event for which the calculation of the Fixed Charge Coverage Ratio is made (the
"Calculation Date"), then the Fixed Charge Coverage Ratio will be calculated
giving pro forma effect to such incurrence, issuance, assumption, retirement,
Guarantee, defeasance or redemption of Indebtedness or preferred stock, as if
9
the same had occurred at the beginning of the applicable four-quarter reference
period. For purposes of making the computation referred to above,
(i) acquisitions that have been made by the Company or any of its Subsidiaries,
including through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date will be deemed to have
occurred on the first day of the four-quarter reference period, and (ii) the
Consolidated EBITDA attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of on or prior to
the Calculation Date, will be excluded, and (iii) the Fixed Charges attributable
to discontinued operations, as determined in accordance with GAAP, and
operations or businesses disposed of on or prior to the Calculation Date, will
be excluded, but only to the extent that the obligations giving rise to such
Fixed Charges will not be obligations of the referent Person or any of its
Subsidiaries following the Calculation Date.
"FOREIGN SUBSIDIARIES" means (i) Copetro S.A., an Argentine
corporation, and Great Lakes International Sales Corp., a Barbados corporation,
and (ii) any Subsidiary organized and incorporated in a jurisdiction outside of
the United States.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect on the Issue Date. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP applied on a consistent basis, except that calculations made for purposes
of determining compliance with the terms of the covenants and with other
provisions of this Indenture shall be made without giving effect to
depreciation, amortization or other expenses recorded as a result of the
application of purchase accounting in accordance with Accounting Principles
Board Opinion Nos. 16 and 17.
"GLC" means Great Lakes Carbon Corporation, a Delaware corporation.
"GLOBAL DEBENTURES" means, individually and collectively, each of the
Restricted Global Debentures and the Unrestricted Global Debentures, in the form
of Exhibit A hereto issued in accordance with Section 2.01, 2.06(b)(iv),
2.06(d)(ii) or 2.06(f) hereof.
10
"GLOBAL DEBENTURE LEGEND" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Debentures issued
under this Indenture.
"GOVERNMENT SECURITIES" means direct obligations of, or obligations
fully guaranteed by, the United States of America for the payment of which
guarantee or obligations the full faith and credit of the United States of
America is pledged.
"GUARANTEE" means a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct or
indirect, in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"HEDGING OBLIGATIONS" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates and (ii) currency swap or protection agreements and other agreements or
arrangements designed to protect such Person against fluctuations in currency
exchange rates.
"HOLDER" means a Person in whose name a Debenture is registered on the
Registrar's books.
"INCUR" means, with respect to any Indebtedness, to incur, create,
issue, assume, Guarantee or otherwise become liable for or with respect to, or
become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an "Incurrence" of Acquired Indebtedness; PROVIDED that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness.
"INDEBTEDNESS" means, with respect to any Person, any indebtedness
of such Person, whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments or letters of
credit (or reimbursement agreements in respect thereof) or banker's
acceptances or representing Capital Lease Obligations or the balance deferred
and unpaid of the purchase price of any property or representing any Hedging
Obligations, except any such balance that constitutes an accrued expense or
trade payable, if and to the extent any of the foregoing indebtedness (other
than letters of credit and Hedging Obligations) would appear as a liability
upon a balance sheet of such Person prepared in accordance with GAAP, as well
as all indebtedness of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the
extent not otherwise included, the Guarantee by such Person of any such
Indebtedness of any other Person; PROVIDED
11
that any indebtedness which has been defeased in accordance with GAAP or
defeased pursuant to the deposit of cash or Government Securities (in an
amount sufficient to satisfy all such indebtedness obligations at maturity or
redemption, as applicable, and all payments of interest and premium, if any,
thereon) in a trust or account created or pledged for the sole benefit of the
holders of such indebtedness, and subject to no other Liens, and the other
applicable terms of the instrument governing such indebtedness, shall not
constitute "Indebtedness."
"INDENTURE" means this Indenture, as amended or supplemented from time
to time.
"INITIAL PURCHASERS" mean the initial purchasers of the Series A
Debentures under the Purchase Agreement, dated May 18, 1998, with respect to the
Series A Debentures.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"INVESTMENT" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of direct or
indirect loans (including guarantees of Indebtedness or other obligations but
excluding guarantees of Indebtedness of the Company or any of its Subsidiaries),
advances or capital contributions (excluding commission, travel and similar
advances to officers and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of Indebtedness, Equity
Interests or other securities and all other items that are or would be
classified as investments on a balance sheet prepared in accordance with GAAP;
PROVIDED that an acquisition of assets, Equity Interests or other securities by
the Company or GLC for consideration consisting of common equity securities of
the Company or GLC or any direct or indirect parent of the Company will not be
deemed to be an Investment.
"ISSUE DATE" means the date of first issuance of Debentures under this
Indenture.
"JOINT VENTURES" means joint ventures entered into by the Company or
any of its Subsidiaries for the primary purpose of operating a Related Business.
"LEGAL HOLIDAY" means a Saturday, a Sunday or a day on which
banking institutions in the City of New York, or the city in which the
principal corporate trust office of the Trustee is located, or at a place of
payment are authorized by law, regulation or executive order to remain
closed. If a payment date is a Legal Holiday at a place of
12
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Debentures for use by such Holders
in connection with the Exchange Offer.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature of a security agreement, any option or other agreement to grant or
give a security interest in and, except in connection with any Qualified
Receivables Transaction, any filing of or agreement to give any financing
statement under the Uniform Commercial Code (or equivalent statutes) of any
jurisdiction).
"LIQUIDATED DAMAGES" means all Liquidated Damages then owing pursuant
to the Registration Rights Agreement.
"MERGER AGREEMENT" means that certain Agreement and Plan of Merger
dated as of April 21, 1998 by and between the Company and GLC.
"MOODY'S" means Moody's Investors Service, Inc. and its successors.
"MORTGAGE FINANCINGS" means any mortgage, deed of trust or other
instrument creating a lien on an estate in fee simple or a leasehold estate in a
property, secured by a note or other evidence of an obligor's indebtedness under
such mortgage, deed of trust or other instrument.
"NET CASH PROCEEDS" means the aggregate amount of cash and Cash
Equivalents received by the Company or GLC, or any direct or indirect parent
of the Company, in the case of a sale or equity contribution in respect of
Equity Interests (other than Disqualified Stock) plus, in the case of an
issuance of Equity Interests (other than Disqualified Stock) upon any
exercise, exchange or conversion of securities (including options, warrants,
rights and convertible or exchangeable debt) of the Company or GLC or any
direct or indirect parent of the Company that were issued for cash after the
Issue Date, the amount of cash originally received by the Company or GLC or
any direct or indirect parent of the Company upon the issuance of such
securities (including options, warrants, rights and convertible or
exchangeable debt) less the sum of all payments, fees, commissions, and
customary and reasonable expenses (including, without limitation, the fees
and expenses of legal counsel and investment banking fees and expenses)
incurred
13
in connection with such sale or equity contribution in respect of Equity
Interests (other than Disqualified Stock).
"NET INCOME" means, with respect to any Person, the net income (loss)
of such Person, determined in accordance with GAAP and before any reduction in
respect of preferred stock dividends, excluding, however, (i) any gain (but not
loss), together with any related provision for taxes on such gain (but not
loss), realized in connection with (a) any Asset Sale (including, without
limitation, dispositions pursuant to sale and leaseback transactions) or (b) the
disposition of any securities by such Person or any of its Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of its Subsidiaries and
(ii) any extraordinary or nonrecurring gain (but not loss), together with any
related provision for taxes on such extraordinary or nonrecurring gain (but not
loss).
"NET PROCEEDS" means the aggregate cash proceeds and Cash Equivalents
received by the Company or any of its Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any Asset Sale), net of
the direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and any
relocation expenses incurred as a result thereof, taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts required to be applied to
the repayment of Indebtedness (other than the Debentures or Indebtedness under
the New Credit Agreement) secured by a Lien on the asset or assets that were the
subject of such Asset Sale, any reserve for adjustment in respect of the sale
price of such asset or assets or liabilities associated with such Asset Sale and
retained by the Company or such Subsidiary established in accordance with GAAP,
all distributions and other payments required to be made to minority interest
holders in Subsidiaries or other parties to any Joint Ventures as a result of
such Asset Sale and all Purchase Money Obligations (and Permitted Refinancing
Indebtedness thereof) assumed by the purchaser in connection with such Asset
Sale.
"NEW CREDIT AGREEMENT" means that certain Credit Agreement, dated as
of the Issue Date, by and among the Company, GLC, Bankers Trust Company, as
syndication and administrative agent, DLJ Capital Funding, Inc., as
documentation agent, Bank of America National Trust and Savings Association, as
co-agent, and the lenders parties thereto, including any related notes,
guarantees, collateral documents, instruments and agreements (including, without
limitation, agreements with respect to Hedging Obligations with lenders party to
the New Credit Agreement or their Affiliates) executed in connection therewith,
and in each case as amended, supplemented, modified, renewed, refunded,
replaced, restated or refinanced from time to time, including any agreement
14
restructuring or adding the Company or Subsidiaries of GLC as additional
borrowers or guarantors thereunder and whether by the same or any other agent,
lender or group of lenders.
"NON-RECOURSE INDEBTEDNESS" means Indebtedness (i) as to which neither
the Company nor any of its Subsidiaries (a) provides credit support of any kind
(including any undertaking, agreement or instrument that would constitute
Indebtedness), (b) is directly or indirectly liable (as a guarantor or
otherwise), or (c) constitutes the lender; and (ii) no default with respect to
which (including any rights that the holders thereof may have to take
enforcement action against an Unrestricted Subsidiary) would permit (upon
notice, lapse of time or both) any holder of any other Indebtedness of the
Company or any of its Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
its stated maturity.
"NOTE INDENTURE" means the indenture governing GLC's Senior
Subordinated Notes.
"OBLIGATIONS" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages or other liabilities payable under the
documentation governing any Indebtedness.
"OFFER TO PURCHASE" means an offer to purchase Debentures by the
Company from the Holders commenced by mailing a notice to the Trustee and
each Holder stating: (i) the Section of this Indenture pursuant to which the
offer is being made and that all Debentures validly tendered will be accepted
for payment on a PRO RATA basis; (ii) the purchase price and the date of
purchase (which shall be a Business Day no later than five Business Days
following the termination of the Offer to Purchase) (the "Payment Date");
(iii) that the Offer to Purchase shall remain open for a period not to exceed
60 days following its commencement, except to the extent a longer period is
required by applicable law, (iv) that any Debenture not tendered will
continue to accrue interest pursuant to its terms; (v) that, unless the
Company defaults in the payment of the purchase price, any Debenture accepted
for payment pursuant to the Offer to Purchase shall cease to accrue interest
and the Accreted Value thereof will cease to increase on and after the
Payment Date; (vi) that Holders electing to have a Debenture purchased
pursuant to the Offer to Purchase will be required to surrender the
Debenture, together with the form entitled "Option of the Holder to Elect
Purchase" on the reverse side of the Debenture completed, to the Paying Agent
at the address specified in the notice prior to the close of business on the
Business Day immediately preceding the Payment Date; (vii) that Holders will
be entitled to withdraw their election if the Paying Agent receives, not
later than the close of business on the third Business Day immediately
preceding the Payment Date, a telegram, facsimile transmission or letter
setting forth the name of such Holder, the principal amount of Debentures
delivered for purchase and a statement that
15
such Holder is withdrawing his election to have such Debentures purchased;
and (viii) that Holders whose Debentures are being purchased only in part
will be issued new Debentures equal in principal amount to the unpurchased
portion of the Debentures surrendered; PROVIDED that each Debenture purchased
and each new Debenture issued shall be in a principal amount of $1,000 or
integral multiples thereof. On the Payment Date, the Company shall (i)
accept for payment on a PRO RATA basis Debentures or portions thereof
tendered pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Debentures or portions
thereof so accepted; and (iii) deliver, or cause to be delivered, to the
Trustee all Debentures or portions thereof so accepted together with an
Officers' Certificate specifying the Debentures or portions thereof accepted
for payment by the Company. The Paying Agent shall promptly mail to the
Holders of Debentures so accepted payment in an amount equal to the purchase
price, and the Trustee shall promptly authenticate and mail to such Holders a
new Debenture equal in principal amount to any unpurchased portion of the
Debenture surrendered; PROVIDED that each Debenture purchased and each new
Debenture issued shall be in a principal amount of $1,000 or integral
multiples thereof. The Company will publicly announce the results of an Offer
to Purchase as soon as practicable after the Payment Date. The Trustee shall
act as the Paying Agent for an Offer to Purchase. The Company will comply
with Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are
applicable, in the event that the Company is required to repurchase
Debentures pursuant to an Offer to Purchase. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
for such Offer to Purchase, the Company will comply with the applicable
securities laws and regulations and will not be deemed to have breached its
obligations with respect to such Offer to Purchase by virtue thereof.
"OFFERING" means the offering of the Series A Debentures by the
Company.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President of such
Person.
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Sections 10.04 and 10.05 hereof.
"OPINION OF COUNSEL" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.04 and
16
10.05 hereof. The counsel may be an employee of or counsel to the Company or
any Subsidiary of the Company.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"PERMITTED INVESTMENTS" means (a) any Investments in the Company or in
a Subsidiary of the Company that is engaged in one or more Related Businesses;
(b) any Investment by the Company or a Subsidiary of the Company in a
Receivables Subsidiary or any Investment by a Receivables Subsidiary in any
other Person in connection with a Qualified Receivables Transaction PROVIDED,
that the foregoing Investment is in the form of a note or other instrument that
the Receivables Subsidiary or other Person is required to repay as soon as
practicable from available cash collections less amounts required to be
established as reserves pursuant to contractual agreements with entities that
are not Affiliates of the Company entered into as part of a Qualified
Receivables Transaction; (c) any Investments in Cash Equivalents;
(d) Investments by the Company or any Subsidiary of the Company in a Person if
as a result of such Investment (i) such Person becomes a Subsidiary of the
Company that is engaged in one or more Related Businesses or (ii) such Person is
merged, consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the Company or a
Subsidiary of the Company that is engaged in one or more Related Businesses;
(e) Investments made as a result of the receipt of non-cash consideration from
an Asset Sale that was made pursuant to and in compliance with Section 4.13;
(f) Investments outstanding as of the Issue Date; (g) Investments in the form of
promissory notes of members of the Company's or GLC's management in
consideration of the purchase by such members of Equity Interests (other than
Disqualified Stock) in the Company or GLC; (h) Investments which constitute
Existing Indebtedness of the Company of any of its Subsidiaries; (i) accounts
receivable, endorsements for collection or deposits arising in the ordinary
course of business; (j) other Investments in any Person that do not exceed
$10,000,000 at any time outstanding under and pursuant to this clause (j),
without giving effect to changes in the value of such Investment occurring after
the date of such Investment, but giving effect to all dividends, distributions,
principal, interest and other payments received in respect of such Investments
in cash or Cash Equivalents; (k) Investments in Foreign Subsidiaries or Joint
Ventures that do not exceed $35,000,000 in the aggregate at any time outstanding
under and pursuant to this clause (k), without giving effect to changes in the
value of such Investment occurring after the date of such Investment, but giving
effect to all dividends, distributions, principal, interest and other payments
received in respect of such Investments in cash or Cash Equivalents;
(l) Investments constituting Indebtedness owed by one Foreign Subsidiary to one
or more other Foreign Subsidiaries or Investments by a Foreign Subsidiary in one
17
or more other Foreign Subsidiaries; (m) Investments constituting Indebtedness
permitted under clause (vii) of Section 4.07; and (n) capital stock, obligations
or other securities received in settlement of debts created in the ordinary
course of business and owing to the Company or any of its Subsidiaries.
"PERMITTED LIENS" means (i) Liens securing the New Credit Agreement
and other Indebtedness of GLC or its Subsidiaries and Permitted Refinancing
Indebtedness related thereto; (ii) Liens in favor of the Company or any
Subsidiary of the Company; (iii) Liens on property of a Person existing at
the time such Person is merged into or consolidated with or acquired by the
Company or any Subsidiary of the Company in accordance with the provisions of
this Indenture; PROVIDED that such Liens were in existence prior to the
contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company;
(iv) Liens on property existing at the time of acquisition thereof by the
Company or any Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition; (v) Liens to secure
the performance of statutory obligations, surety or appeal bonds, performance
bonds or other obligations of a like nature incurred in the ordinary course
of business; (vi) Liens existing on the Issue Date and Liens securing any
Permitted Refinancing Indebtedness incurred to refinance any Indebtedness
secured by such Liens; (vii) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
concluded, provided that any reserve or other appropriate provision as will
be required in conformity with GAAP will have been made therefor; (viii)
Liens incurred in the ordinary course of business of the Company or any
Subsidiary of the Company with respect to obligations that do not exceed
$5,000,000 at any one time outstanding and that (a) are not incurred in
connection with the borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business) and (b) do not
in the aggregate materially detract from the value of the property or
materially impair the use thereof in the operation of business by the Company
or such Subsidiary; (ix) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (x) easements, rights-of-way,
restrictions, minor defects or irregularities in title and other similar
charges or encumbrances not interfering in any material respect with the
business of the Company or any of its Subsidiaries; (xi) Purchase Money Liens
(including extensions and renewals thereof and Liens securing any Permitted
Refinancing Indebtedness incurred in respect of the applicable Purchase Money
Obligations); (xii) Liens securing reimbursement obligations with respect to
letters of credit and bankers' acceptances which encumber only documents and
other property relating to such letters of credit and the products and
proceeds thereof; (xiii) judgment and attachment Liens not giving rise to an
Event of Default; (xiv) Liens encumbering deposits made to secure obligations
arising from
18
statutory, regulatory, contractual or warranty requirements; (xv) Liens
arising out of consignment or similar arrangements for the sale of goods;
(xvi) any interest or title of a lessor in property subject to any Capital Lease
Obligation or operating lease; (xvii) Liens arising from filing Uniform
Commercial Code financing statements regarding leases; (xviii) Liens on assets
of the Company or its Subsidiaries with respect to Acquired Indebtedness (and
Permitted Refinancing Indebtedness with respect thereto) provided that such
Liens were not created in contemplation of or in connection with such
acquisition; (xix) Liens on assets of the Company or a Receivables Subsidiary
incurred in connection with a Qualified Receivables Transaction; (xx) Liens
securing Indebtedness of any Foreign Subsidiary; (xxi) Liens securing the Senior
Subordinated Notes and any other obligations ranking PARI PASSU with the Senior
Subordinated Notes; (xxii) Liens securing the Debentures and any other
obligations ranking PARI PASSU with the Debentures, and (xxiii) Liens securing
Permitted Refinancing Indebtedness incurred to refinance any Indebtedness that
was previously secured by a Lien, in a manner no more adverse, taken as a whole,
to the Holders of the Debentures than the Liens securing such refinanced
Indebtedness.
"PERMITTED REFINANCING INDEBTEDNESS" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund, other
Indebtedness of the Company or any of its Subsidiaries; PROVIDED that: (i) the
principal amount (or accreted value, if issued with an original issue discount)
of such Permitted Refinancing Indebtedness does not exceed the principal amount
(or accreted value, if issued with an original issue discount) of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in connection therewith, the
accrued or unpaid interest thereon and any premium owed in connection
therewith); (ii) such Permitted Refinancing Indebtedness has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity
of the Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; (iii) if the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded is subordinated in right of payment to the
Debentures, such Permitted Refinancing Indebtedness is subordinated in right of
payment to, the Debentures on terms at least as favorable, taken as a whole, to
the Holders of Debentures as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
and the final maturity date of such Permitted Refinancing Indebtedness is later
than the final maturity date of the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded; and (iv) such Indebtedness is incurred
either by the Company or by the Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
19
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or agency or political subdivision
thereof (including any subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity, subdivision or business).
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether outstanding on the Issue Date or issued thereafter, including, without
limitation, all series and classes of such preferred or preference stock.
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(i) to be placed on all Debentures issued under this Indenture except
where otherwise permitted by the provisions of this Indenture.
"PURCHASE MONEY LIEN" means a Lien granted on an asset or property to
secure a Purchase Money Obligation permitted to be incurred under this Indenture
and incurred solely to finance the purchase (or lease), or the cost of
construction or improvement, of such asset or property; PROVIDED, HOWEVER, that
such Lien encumbers only such asset or property and is granted within 180 days
of such acquisition.
"PURCHASE MONEY OBLIGATIONS" of any Person means any obligations of
such Person to any seller or any other Person incurred or assumed to finance the
purchase (or lease), or the cost of construction or improvement, of real or
personal property to be used in the business of such Person or any of its
Subsidiaries in an amount that is not more than 100% of the cost, or fair market
value, as appropriate, of such property, and incurred within 180 days after the
date of such acquisition (excluding accounts payable to trade creditors incurred
in the ordinary course of business).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"QUALIFIED RECEIVABLES TRANSACTION" means any transaction or series of
transactions that may be entered into by the Company or any of its Subsidiaries
pursuant to which the Company or any of its Subsidiaries may sell, convey or
otherwise transfer to (i) a Receivables Subsidiary (in the case of a transfer by
the Company or any of its Subsidiaries) and (ii) any other Person (in the case
of a transfer by a Receivables Subsidiary), or may grant a security interest in,
any accounts receivable (whether now existing or arising in the future) of the
Company or any of its Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable, all
contracts and all guarantees or other obligations in respect of such accounts
receivable, proceeds of such accounts receivable and other assets which are
20
customarily transferred or in respect of which security interests are
customarily granted in connection with asset securitization transactions
involving accounts receivable.
"RECEIVABLES SUBSIDIARY" means a Subsidiary of the Company which
engages in no activities other than in connection with the financing of accounts
receivable and which is designated by the Board of Directors of the Company (as
provided below) as a Receivables Subsidiary (a) no portion of the Indebtedness
or any other Obligations (contingent or otherwise) of which (i) is guaranteed by
the Company or any Subsidiary of the Company (excluding guarantees of
Obligations (other than the principal of, and interest on, Indebtedness)
pursuant to representations, warranties, covenants and indemnities entered into
in the ordinary course of business in connection with a Qualified Receivables
Transaction), (ii) is recourse to or obligates the Company or any Subsidiary of
the Company in any way other than pursuant to representations, warranties,
covenants and indemnities entered into in the ordinary course of business in
connection with a Qualified Receivables Transaction or (iii) subjects any
property or asset of the Company or any Subsidiary of the Company (other than
accounts receivable), directly or indirectly, contingently or otherwise, to the
satisfaction thereof, other than pursuant to representations, warranties,
covenants and indemnities entered into in the ordinary course of business in
connection with a Qualified Receivables Transaction, (b) with which neither the
Company nor any Subsidiary of the Company has any material contract, agreement,
arrangement or understanding other than on terms no less favorable to the
Company or such Subsidiary than those that might be obtained at the time from
Persons who are not Affiliates of the Company, other than fees payable in the
ordinary course of business in connection with servicing accounts receivable and
(c) with which neither the Company nor any Subsidiary of the Company has any
obligation to maintain or preserve such Subsidiary's financial condition or
cause such Subsidiary to achieve certain levels of operating results. Any such
designation by the Board of Directors of the Company will be evidenced to the
Trustee by filing with the Trustee a certified copy of the resolution of the
Board of Directors of the Company giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the Initial
Purchasers, as such agreement may be amended, modified or supplemented from time
to time.
"REGULATION S" means Regulation S promulgated under the Securities
Act, as it may be amended from time to time, and any successor provision
thereto.
"REGULATION S GLOBAL DEBENTURE" means a permanent global Debenture in
the form of Exhibit A hereto bearing the Global Debenture Legend and the Private
21
Placement Legend and deposited with or on behalf of and registered in the name
of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Debentures initially sold in reliance on
Rule 903 of Regulation S.
"RELATED BUSINESS" means the business conducted by the Company and its
Subsidiaries as of the Issue Date and any and all businesses that in the good
faith judgment of the Board of Directors of the Company are related businesses,
including reasonable extensions or expansions thereof.
"RESTRICTED DEFINITIVE DEBENTURE" means a Definitive Debenture bearing
the Private Placement Legend.
"RESTRICTED GLOBAL DEBENTURE" means a Global Debenture bearing the
Private Placement Legend.
"RESTRICTED INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED PERIOD" means the 40-day restricted period as defined in
Regulation S.
"RULE 144A" means Rule 144A promulgated under the Securities Act, as
it may be amended from time to time, and any successor provision thereto.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SENIOR REVOLVING DEBT" means revolving Indebtedness under the New
Credit Agreement as such agreement may be restated, further amended,
supplemented or otherwise modified, renewed, refunded, replaced or refinanced,
in whole or in part, from time to time.
"SENIOR SUBORDINATED NOTES" means the 101/4% Senior Subordinated Notes
due 2008 of GLC.
"SENIOR TERM DEBT" means term Indebtedness under the New Credit
Agreement as such agreement may be restated, further amended, supplemented or
otherwise modified, renewed, refunded, replaced or refinanced, in whole or in
part, from time to time.
22
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in the
Registration Rights Agreement.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Exchange Act, as such Regulation is in effect on the
date hereof.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, and its successors.
"STATED MATURITY" means, (i) with respect to any debt security, the
date specified in such debt security as the fixed date on which the final
installment of principal of such debt security is due and payable and (ii) with
respect to any scheduled installment of principal of or interest on any debt
security, the date specified in such debt security as the fixed date on which
such installment is due and payable.
"SUBSIDIARY" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof). Unrestricted Subsidiaries will not be included in the definition of
Subsidiary for any purposes of this Indenture (except, as the context may
otherwise require, for purposes of the definition of "Unrestricted Subsidiary.")
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA.
"TRANSFER RESTRICTED DEBENTURES" means securities that bear, or that
are required to bear, the Private Placement Legend.
"TRUSTEE" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"UNRESTRICTED DEFINITIVE DEBENTURE" means one or more Definitive
Debentures that do not bear and are not required to bear the Private Placement
Legend.
"UNRESTRICTED GLOBAL DEBENTURE" means a permanent global Debenture
in the form of Exhibit A attached hereto that bears the Global Debenture
Legend and that has the "Schedule of Exchanges of Interests in the Global
Debenture" attached thereto,
23
and that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Debentures that do not bear the Private
Placement Legend.
"UNRESTRICTED SUBSIDIARY" means (i) any Subsidiary that is designated
by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a) has no Indebtedness
other than Non-Recourse Indebtedness; (b) is not party to any agreement,
contract, arrangement or understanding with the Company or any Subsidiary of the
Company unless the terms of any such agreement, contract, arrangement or
understanding are no less favorable to the Company or such Subsidiary than those
that might be obtained at the time from Persons who are not Affiliates of the
Company; (c) is a Person with respect to which neither the Company nor any of
its Subsidiaries has any obligation (x) to subscribe for additional Equity
Interests or (y) to maintain or preserve such Person's financial condition or to
cause such Person to achieve any specified levels of operating results; and
(d) has not guaranteed or otherwise directly or indirectly provided credit
support for any Indebtedness of the Company or any of its Subsidiaries. Any such
designation by the Board of Directors will be evidenced to the Trustee by filing
with the Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by Section 4.07 hereof.
If, at any time, any Unrestricted Subsidiary would fail to meet the foregoing
requirements as an Unrestricted Subsidiary, it will thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary will be deemed to be incurred by a Subsidiary of the Company as
of such date (and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.07 hereof, the Company will be in default of such
covenant). The Board of Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Subsidiary; PROVIDED that such designation will
be deemed to be an incurrence of Indebtedness by a Subsidiary of the Company of
any outstanding Indebtedness of such Unrestricted Subsidiary and such
designation will only be permitted if (i) such Indebtedness is permitted under
Section 4.07 hereof, and (ii) no Default or Event of Default would be in
existence following such designation.
"U.S. PERSON" means a U.S. person as defined in Rule 902(o) under the
Securities Act.
"WEIGHTED AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the
sum of the products obtained by multiplying (a) the amount of each then
remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect
thereof, by (b) the number of years (calculated to the nearest
24
one-twelfth) that will elapse between such date and the making of such
payment, by (ii) the then outstanding principal amount of such Indebtedness.
SECTION 1.02. OTHER DEFINITIONS
Defined in
Term Section
"Affiliate Transaction" 4.12
"Authentication Order" 2.02
"Bankruptcy Law" 6.01
"Company Obligations" 4.01
"Covenant Defeasance" 8.03
"Custodian" 6.01
"DTC" 2.03
"Legal Defeasance" 8.02
"Paying Agent" 2.03
"Payment Date" 1.01
"Registrar" 2.03
"Restricted Payments" 4.09
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"INDENTURE SECURITIES" means the Debentures;
"INDENTURE SECURITY HOLDER" means a Holder of a Debenture;
"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee;
"OBLIGOR" on the Debentures means the Company and any successor
obligor upon the Debentures.
25
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) references to sections of or rules under the Securities Act and
the Exchange Act shall be deemed to include substitute, replacement of
successor sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE DEBENTURES
SECTION 2.01. FORM AND DATING
(a) GENERAL. The Debentures and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A hereto. The
Debentures may have notations, legends or endorsements required by law, stock
exchange rule or usage. Each Debenture shall be dated the date of its
authentication. The Debentures shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Debentures shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company, the Subsidiary Guarantors and the Trustee, by their execution and
delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby. However, to the extent any
26
provision of any Debenture conflicts with the express provisions of this
Indenture, the provisions of this Indenture shall govern and be controlling.
(b) GLOBAL DEBENTURES. Debentures issued in global form shall be
substantially in the form of Exhibit A attached hereto (including the Global
Debenture Legend thereon and the "Schedule of Exchanges of Interests in the
Global Debenture" attached thereto). Debentures issued in definitive form shall
be substantially in the form of Exhibit A attached hereto (but without the
Global Debenture Legend thereon and without the "Schedule of Exchanges of
Interests in the Global Debenture" attached thereto). Each Global Debenture
shall represent such of the outstanding Debentures as shall be specified therein
and each shall provide that it shall represent the aggregate principal amount of
outstanding Debentures from time to time endorsed thereon and that the aggregate
principal amount of outstanding Debentures represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Debenture to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Debentures
represented thereby shall be made by the Trustee or the Debentures Custodian, at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
(c) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Global Debentures that are held by
Participants through Euroclear or Cedel Bank.
SECTION 2.02. EXECUTION AND AUTHENTICATION
An Officer shall sign the Debentures for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the
Debentures and may be in facsimile form. If an Officer whose signature is on
a Debenture no longer holds that office at the time a Debenture is
authenticated, the Debenture shall nevertheless be valid. A Debenture shall
not be valid until authenticated by the manual signature of the Trustee. The
signature shall be conclusive evidence that the Debenture has been
authenticated under this Indenture. The Trustee shall, upon a written order
of the Company signed by an Officer (an "Authentication Order"), authenticate
Debentures for original issue up to the aggregate principal amount at
maturity stated in such Authentication Order, which shall not exceed
$56,600,000. The aggregate principal amount of Debentures outstanding at any
time may not exceed such amount except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Debentures. An authenticating agent may
27
authenticate Debentures whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal
with Holders or an Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT
The Company shall maintain an office or agency where Debentures may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Debentures may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Debentures and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar. The Company
initially appoints The Depository Trust Company ("DTC") to act as Depositary
with respect to the Global Debentures. The Company initially appoints the
Trustee to act as the Registrar and Paying Agent and to act as Debentures
Custodian with respect to the Global Debentures.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Debentures,
and will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Debentures.
28
SECTION 2.05. HOLDER LISTS
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Debentures and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE
(a) TRANSFER AND EXCHANGE OF GLOBAL DEBENTURES. A Global Debenture
may not be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global
Debentures will be exchanged by the Company for Definitive Debentures if (i) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary, (ii) the Company in its sole discretion
determines that the Global Debentures (in whole but not in part) should be
exchanged for Definitive Debentures and delivers a written notice to such effect
to the Trustee or (iii) upon request of the Trustee or Holders of a majority of
the aggregate principal amount at maturity of outstanding Debentures if there
shall have occurred and be continuing a Default or Event of Default with respect
to the Debentures. Upon the occurrence of any of the preceding events in (i),
(ii) or (iii) above, Definitive Debentures shall be issued in such names as the
Depositary shall instruct the Trustee. Global Debentures also may be exchanged
or replaced, in whole or in part, as provided in Sections 2.07 and 2.10 hereof.
Every Debenture authenticated and delivered in exchange for, or in lieu of, a
Global Debenture or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Debenture. A Global Debenture may not be exchanged
for another Debenture other than as provided in this Section 2.06(a), however,
beneficial interests in a Global Debenture may be transferred and exchanged as
provided in Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
DEBENTURES. The transfer and exchange of beneficial interests in the Global
Debentures shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial
interests in the Restricted Global
29
Debentures shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Debentures also shall require compliance
with either subparagraph (i) or (ii) below, as applicable, as well as one or
more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL
DEBENTURE. Beneficial interests in any Restricted Global Debenture may be
transferred to Persons who take delivery thereof in the form of a beneficial
interest in the same Restricted Global Debenture in accordance with the transfer
restrictions set forth in the Private Placement Legend; PROVIDED, however, that
prior to the expiration of the Restricted Period, transfers of beneficial
interests in the Regulation S Global Debenture may not be made to a U.S. Person
or for the account or benefit of a U.S. Person (other than a Initial Purchaser).
Beneficial interests in any Unrestricted Global Debenture may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Debenture. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in
this Section 2.06(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN GLOBAL DEBENTURES. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above, the
transferor of such beneficial interest must deliver to the Registrar either (A)
(1) an order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global
Debenture in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) an order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Debenture
in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Debenture shall be registered
to effect the transfer or exchange referred to in (B)(1) above. Upon
consummation of an Exchange Offer by the Company in accordance with Section
2.06(f) hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions contained
in the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Debentures. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Debentures contained in this Indenture and the Debentures or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Debenture(s) pursuant to Section 2.06(h) hereof.
30
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL DEBENTURE. A beneficial interest in any Restricted Global Debenture may
be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Debenture if the transfer
complies with the requirements of Section 2.06(b)(ii) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form
of a beneficial interest in the 144A Global Debenture, then the transferor must
deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form
of a beneficial interest in the Regulation S Global Debenture, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including
the certifications in item (2) thereof.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED GLOBAL DEBENTURE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED GLOBAL
DEBENTURE. A beneficial interest in any Restricted Global Debenture may be
exchanged by any holder thereof for a beneficial interest in an Unrestricted
Global Debenture or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Debenture if the
exchange or transfer complies with the requirements of Section 2.06(b)(ii) above
and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement and the
holder of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in
the distribution of the Exchange Debentures or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if
the holder of such beneficial interest in a Restricted Global Debenture
proposes to exchange such beneficial interest for a beneficial interest in an
Unrestricted Global Debenture, a certificate from such holder in the form of
Exhibit C hereto, including the certifications
31
in item (1)(a) thereof; or (2) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to transfer such beneficial interest to
a Person who shall take delivery thereof in the form of a beneficial interest
in an Unrestricted Global Debenture, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), an Opinion of
Counsel in form reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with the Securities
Act and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with
the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Debenture has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Debentures in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above. Beneficial interests in an Unrestricted Global
Debenture cannot be exchanged for, or transferred to Persons who take delivery
thereof in the form of, a beneficial interest in a Restricted Global Debenture.
(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE
DEBENTURES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL DEBENTURES TO
RESTRICTED DEFINITIVE DEBENTURES. If any holder of a beneficial interest in a
Restricted Global Debenture proposes to exchange such beneficial interest for a
Restricted Definitive Debenture or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of a Restricted Definitive
Debenture, then, upon receipt by the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Debenture proposes to exchange such beneficial interest for a
Restricted Definitive Debenture, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred
to a QIB in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in item
(1) thereof;
(C) if such beneficial interest is being
transferred to a Non-U.S. Person in an offshore transaction in accordance
with Rule 903 or Rule 904
32
under the Securities Act, a certificate to the effect set forth in
Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred
to an Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth in
Exhibit B hereto, including the certifications, certificates and Opinion of
Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred
to the Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Debenture to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and, upon receipt of an
Authentication Order pursuant to Section 2.02, the Trustee shall authenticate
and deliver to the Person designated in the instructions a Restricted Definitive
Debenture in the appropriate principal amount. Any Restricted Definitive
Debenture issued in exchange for a beneficial interest in a Restricted Global
Debenture pursuant to this Section 2.06(c) shall be registered in such name or
names and in such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Restricted Definitive Debentures to the Persons in whose names such
Debentures are so registered. Any Restricted Definitive Debenture issued in
exchange for a beneficial interest in a Restricted Global Debenture pursuant to
this Section 2.06(c)(i) shall bear the Private Placement Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL DEBENTURES TO
UNRESTRICTED DEFINITIVE DEBENTURES. A holder of a beneficial interest in a
Restricted Global Debenture may exchange such beneficial interest for an
Unrestricted Definitive
33
Debenture or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Debenture only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a Broker-Dealer, (2) a Person participating in
the distribution of the Exchange Debentures or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the
holder of such beneficial interest in a Restricted Global Debenture proposes to
exchange such beneficial interest for a Definitive Debenture that does not bear
the Private Placement Legend, a certificate from such holder in the form of
Exhibit C hereto, including the certifications in item (1)(b) thereof; or (2) if
the holder of such beneficial interest in a Restricted Global Debenture proposes
to transfer such beneficial interest to a Person who shall take delivery thereof
in the form of a Definitive Debenture that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; and, in each such case set
forth in this subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act.
(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL DEBENTURES
TO UNRESTRICTED DEFINITIVE DEBENTURES. If any holder of a beneficial
interest in an Unrestricted Global Debenture proposes to exchange such
beneficial interest for an Unrestricted Definitive Debenture or to transfer
such beneficial interest to a Person who takes delivery thereof in the form
of an Unrestricted Definitive Debenture, then, upon satisfaction of the
conditions set forth in Section 2.06(b)(ii) hereof, the Trustee shall cause
the aggregate principal amount of the applicable Unrestricted Global
Debenture to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Company shall execute and, upon receipt of an Authentication Order
pursuant to Section 2.02, the Trustee shall authenticate and deliver to the
Person designated in the instructions an
34
Unrestricted Definitive Debenture in the appropriate principal amount. Any
Unrestricted Definitive Debenture issued in exchange for a beneficial
interest pursuant to this Section 2.06(c)(iii) shall be registered in such
name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant.
The Trustee shall deliver such Unrestricted Definitive Debentures to the
Persons in whose names such Debentures are so registered. Any Unrestricted
Definitive Debenture issued in exchange for a beneficial interest pursuant to
this Section 2.06(c)(iii) shall not bear the Private Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE DEBENTURES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE DEBENTURES TO BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL DEBENTURES. If any Holder of a Restricted Definitive
Debenture proposes to exchange such Debenture for a beneficial interest in a
Restricted Global Debenture or to transfer such Restricted Definitive Debentures
to a Person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Debenture, then, upon receipt by the Registrar of the
following documentation:
(A) if the Holder of such Restricted Definitive
Debenture proposes to exchange such Debenture for a beneficial interest in a
Restricted Global Debenture, a certificate from such Holder in the form of
Exhibit C hereto, including the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Debenture is being
transferred to a QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof; or
(C) if such Restricted Definitive Debenture is being
transferred to a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904 under the Securities Act, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2) thereof,
the Trustee shall cancel the Restricted Definitive Debenture, increase or cause
to be increased the aggregate principal amount of, in the case of clause (A)
above, the appropriate Restricted Global Debenture, in the case of clause (B)
above, the 144A Global Debenture, and in the case of clause (C) above, the
Regulation S Global Debenture.
35
(ii) RESTRICTED DEFINITIVE DEBENTURES TO BENEFICIAL INTERESTS
IN UNRESTRICTED GLOBAL DEBENTURES. A Holder of a Restricted Definitive
Debenture may exchange such Debenture for a beneficial interest in an
Unrestricted Global Debenture or transfer such Restricted Definitive Debenture
to a Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global Debenture only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Debentures or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the
Holder of such Restricted Definitive Debentures proposes to exchange such
Debentures for a beneficial interest in the Unrestricted Global Debenture, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(c) thereof; or (2) if the Holder of such Restricted
Definitive Debentures proposes to transfer such Debentures to a Person who shall
take delivery thereof in the form of a beneficial interest in the Unrestricted
Global Debenture, a certificate from such Holder in the form of Exhibit B
hereto, including the certifications in item (4) thereof; and, in each such case
set forth in this subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend are no longer
required in order to maintain compliance with the Securities Act. Upon
satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Restricted Definitive
Debentures so transferred or exchanged and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Debenture.
(iii) UNRESTRICTED DEFINITIVE DEBENTURES TO BENEFICIAL
INTERESTS IN UNRESTRICTED GLOBAL DEBENTURES. A Holder of an Unrestricted
Definitive Debenture may exchange such Debenture for a beneficial interest in
an Unrestricted Global Debenture or transfer such Definitive Debentures to a
Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Debenture at any
36
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Debenture and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Debentures. If any such exchange or transfer from a
Definitive Debenture to a beneficial interest is effected pursuant to
subparagraphs (ii)(B), (ii)(D) or (iii) above at a time when an Unrestricted
Global Debenture has not yet been issued, the Company shall issue and, upon
receipt of an Authentication Order in accordance with Section 2.02 hereof,
the Trustee shall authenticate one or more Unrestricted Global Debentures in
an aggregate principal amount equal to the principal amount of Definitive
Debentures so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE DEBENTURES FOR DEFINITIVE
DEBENTURES. Upon request by a Holder of Definitive Debentures and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Debentures. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Debentures duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such Holder or by its attorney, duly authorized in
writing. In addition, the requesting Holder shall provide any additional
certifications, documents and information, as applicable, required pursuant to
the following provisions of this Section 2.06(e).
(i) RESTRICTED DEFINITIVE DEBENTURES TO RESTRICTED DEFINITIVE
DEBENTURES. Any Restricted Definitive Debenture may be transferred to and
registered in the name of Persons who take delivery thereof in the form of a
Restricted Definitive Debenture if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A
under the Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including
the certifications, certificates and Opinion of Counsel required by item (3)
thereof, if applicable.
(ii) RESTRICTED DEFINITIVE DEBENTURES TO UNRESTRICTED
DEFINITIVE DEBENTURES. Any Restricted Definitive Debenture may be exchanged
by the
37
Holder thereof for an Unrestricted Definitive Debenture or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Debenture if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the Exchange
Debentures or (3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following: (1) if the
Holder of such Restricted Definitive Debentures proposes to exchange such
Debentures for an Unrestricted Definitive Debenture, a certificate from such
Holder in the form of Exhibit C hereto, including the certifications in item
(1)(d) thereof; or (2) if the Holder of such Restricted Definitive Debentures
proposes to transfer such Debentures to a Person who shall take delivery thereof
in the form of an Unrestricted Definitive Debenture, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item (4)
thereof; and, in each such case set forth in this subparagraph (D), an Opinion
of Counsel in form reasonably acceptable to the Registrar and the Company to the
effect that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) UNRESTRICTED DEFINITIVE DEBENTURES TO UNRESTRICTED
DEFINITIVE DEBENTURES. A Holder of Unrestricted Definitive Debentures may
transfer such Debentures to a Person who takes delivery thereof in the form of
an Unrestricted Definitive Debenture. Upon receipt of a request to register
such a transfer, the Registrar shall register the Unrestricted Definitive
Debentures pursuant to the instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02,
the Trustee shall authenticate (i) one or more Unrestricted Global Debentures
in an aggregate principal amount equal to the sum of (A) the principal amount
of the beneficial interests in the
38
Restricted Global Debentures tendered for acceptance by Persons that certify
in the applicable Letters of Transmittal that (x) they are not
Broker-Dealers, (y) they are not participating in a distribution of the
Exchange Debentures and (z) they are not affiliates (as defined in Rule 144)
of the Company, and accepted for exchange in the Exchange Offer and (B) the
principal amount of Definitive Debentures exchanged or transferred for
beneficial interests in Unrestricted Global Debentures in connection with the
Exchange Offer pursuant to Section 2.06(d)(ii) and (ii) Definitive Debentures
in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Debentures accepted for exchange in the Exchange Offer
(other than Definitive Debentures described in clause (i)(B) immediately
above). Concurrently with the issuance of such Debentures, the Trustee shall
cause the aggregate principal amount of the applicable Restricted Global
Debentures to be reduced accordingly, and the Company shall execute and, upon
receipt of an Authentication Order pursuant to Section 2.02, the Trustee
shall authenticate and deliver to the Persons designated by the Holders of
Definitive Debentures so accepted Definitive Debentures in the appropriate
principal amount.
(g) LEGENDS. The following legends shall appear on the face of all
Global Debentures and Definitive Debentures issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below,
each Global Debenture and each Definitive Debenture (and all Debentures issued
in exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
THIS DEBENTURE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE
UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR
OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT (I) IT
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
ACT)(A "QIB"), (II) IT HAS ACQUIRED THIS DEBENTURE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE ACT OR (III) IT IS
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE ACT (AN "IAI"), (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS DEBENTURE
39
EXCEPT (I) TO THE ISSUER OR ANY OF ITS SUBSIDIARIES, (II) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (III) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (IV) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (V) TO AN IAI THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
DEBENTURE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
DEBENTURES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE ACT, (VI) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER)
OR (VII) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
DEBENTURE IN VIOLATION OF THE FOREGOING.
(B) Notwithstanding the foregoing, any Global
Debenture or Definitive Debenture issued pursuant to subparagraphs (b)(iv),
(c)(ii), (c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section
2.06 (and all Debentures issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) GLOBAL DEBENTURE LEGEND. To the extent required by the
Depositary, each Global Debenture shall bear a legend in substantially the
following form:
40
THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS DEBENTURE) OR ITS NOMINEE IN CUSTODY FOR THE
BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY
PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 2.06 OF THE
INDENTURE, (II) THIS GLOBAL DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN
PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL
DEBENTURE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL DEBENTURE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
ISSUER.
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL DEBENTURES. At such
time as all beneficial interests in a particular Global Debenture have been
exchanged for Definitive Debentures or a particular Global Debenture has been
redeemed, repurchased or cancelled in whole and not in part, each such Global
Debenture shall be returned to or retained and cancelled by the Trustee in
accordance with Section 2.11 hereof. At any time prior to such cancellation, if
any beneficial interest in a Global Debenture is exchanged for or transferred to
a Person who will take delivery thereof in the form of a beneficial interest in
another Global Debenture or for Definitive Debentures, the principal amount of
Debentures represented by such Global Debenture shall be reduced accordingly and
an endorsement shall be made on such Global Debenture by the Trustee or by the
Depositary at the direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Debenture, such other Global Debenture shall be increased accordingly and an
endorsement shall be made on such Global Debenture by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Debentures and
Definitive Debentures upon receipt of an Authentication Order.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Debenture or to a Holder of a Definitive
Debenture for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection
41
therewith (other than any such transfer taxes or similar governmental charge
payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 4.13 and
4.14 hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Debenture selected for redemption in whole or in
part, except the unredeemed portion of any Debenture being redeemed in part.
(iv) All Global Debentures and Definitive Debentures issued
upon any registration of transfer or exchange of Global Debentures or Definitive
Debentures shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Global Debentures or Definitive Debentures surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Debentures during a period beginning
at the opening of business 15 days before the day of any selection of Debentures
for redemption under Section 3.02 hereof and ending at the close of business on
the day of selection, (B) to register the transfer of or to exchange any
Debenture so selected for redemption in whole or in part, except the unredeemed
portion of any Debenture being redeemed in part or (C) to register the transfer
of or to exchange a Debenture between a record date and the next succeeding
interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Debenture, the Trustee, any Agent and the Company may deem and
treat the Person in whose name any Debenture is registered as the absolute owner
of such Debenture for the purpose of receiving payment of principal of and
interest on such Debentures and for all other purposes, and none of the Trustee,
any Agent or the Company shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Debentures and
Definitive Debentures in accordance with the provisions of Section 2.02 hereof.
(viii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 2.06 to
effect a registration of transfer or exchange may be submitted by facsimile.
SECTION 2.07. REPLACEMENT DEBENTURES
If any mutilated Debenture is surrendered to the Trustee or the
Company and the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Debenture, the Company shall issue and the
Trustee, upon receipt of an Authentication
42
Order, shall authenticate a replacement Debenture if the Trustee's
requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the
judgment of the Trustee and the Company to protect the Company, the Trustee,
any Agent and any authenticating agent from any loss that any of them may
suffer if a Debenture is replaced. The Company may charge for its expenses
in replacing a Debenture. Every replacement Debenture is an additional
obligation of the Company and shall be entitled to all of the benefits of
this Indenture equally and proportionately with all other Debentures duly
issued hereunder.
SECTION 2.08. OUTSTANDING DEBENTURES
The Debentures outstanding at any time are all the Debentures
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Debenture
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.09 hereof, a Debenture does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Debenture. If a Debenture is replaced
pursuant to Section 2.07 hereof, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Debenture is held by a bona
fide purchaser. If the principal amount of any Debenture is considered paid
under Section 4.01 hereof, it ceases to be outstanding and interest on it ceases
to accrue. If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or the maturity date,
money sufficient to pay Debentures payable on that date, then on and after that
date such Debentures shall be deemed to be no longer outstanding and shall cease
to accrue interest.
SECTION 2.09. TREASURY DEBENTURES
In determining whether the Holders of the required principal amount of
Debentures have concurred in any direction, waiver or consent, Debentures owned
by the Company, or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company, shall
be considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Debentures that the Trustee knows are so
owned shall be so disregarded.
SECTION 2.10. TEMPORARY DEBENTURES
Until certificates representing Debentures are ready for delivery,
the Company may prepare and the Trustee, upon receipt of an Authentication
Order, shall authenticate temporary Debentures. Temporary Debentures shall
be substantially in the
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form of certificated Debentures but may have variations that the Company
considers appropriate for temporary Debentures and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Debentures in exchange
for temporary Debentures. Holders of temporary Debentures shall be entitled
to all of the benefits of this Indenture.
SECTION 2.11. CANCELLATION
The Company at any time may deliver Debentures to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Debentures surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Debentures surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy cancelled Debentures (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all cancelled
Debentures shall be delivered to the Company. The Company may not issue new
Debentures to replace Debentures that it has paid or that have been delivered to
the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST
If the Company defaults in a payment of interest on the Debentures, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Debentures and in Section 4.01 hereof. The Company shall notify the
Trustee in writing of the amount of defaulted interest proposed to be paid on
each Debenture and the date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment date; PROVIDED that
no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
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ARTICLE 3.
REDEMPTION
SECTION 3.01. NOTICES TO TRUSTEE
If the Company elects to redeem Debentures pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days (unless a shorter period is acceptable to the Trustee) but not
more than 60 days before a redemption date, an Officers' Certificate setting
forth (i) the clause of this Indenture pursuant to which the redemption shall
occur, (ii) the redemption date, (iii) the principal amount of Debentures to be
redeemed and (iv) the redemption price.
SECTION 3.02. SELECTION OF DEBENTURES TO BE REDEEMED
If less than all of the Debentures are to be redeemed at any time, the
Trustee shall select the Debentures to be redeemed among the Holders of the
Debentures in compliance with the requirements of the principal national
securities exchange, if any, on which the Debentures are listed or, if the
Debentures are not so listed, on a PRO RATA basis, by lot or in accordance with
any other method the Trustee considers fair and appropriate. In the event of
partial redemption by lot, the particular Debentures to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than
60 days prior to the redemption date by the Trustee from the outstanding
Debentures not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debenture selected
for partial redemption, the principal amount thereof to be redeemed. Debentures
and portions of Debentures selected shall be in amounts of $1,000 or integral
multiples of $1,000; except that if all of the Debentures of a Holder are to be
redeemed, the entire outstanding amount of Debentures held by such Holder, even
if not an integral multiple of $1,000, shall be redeemed. Except as provided in
the preceding sentence, provisions of this Indenture that apply to Debentures
called for redemption also apply to portions of Debentures called for
redemption.
SECTION 3.03. NOTICE OF REDEMPTION
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Debentures are to be redeemed at its registered
address.
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The notice shall identify the Debentures to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c) if any Debenture is being redeemed in part, the portion of the
principal amount at maturity of such Debenture to be redeemed and that, after
the redemption date upon surrender of such Debenture, a new Debenture or
Debentures in principal amount at maturity equal to the unredeemed portion shall
be issued upon cancellation of the original Debenture;
(d) the name and address of the Paying Agent;
(e) that Debentures called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Debentures called for redemption ceases to accrue and
Accreted Value ceases to increase on and after the redemption date;
(g) the paragraph of the Debentures and/or Section of this Indenture
pursuant to which the Debentures called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the Debentures.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; PROVIDED, HOWEVER, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Debentures called for redemption become irrevocably due and payable on
the redemption date at the redemption price. A notice of redemption may not be
conditional.
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SECTION 3.05. DEPOSIT OF REDEMPTION PRICE
On the Business Day immediately prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying Agent immediately
available funds sufficient to pay the redemption price of and accrued interest
on all Debentures to be redeemed on that date. The Trustee or the Paying Agent
shall promptly return to the Company any money deposited with the Trustee or the
Paying Agent by the Company in excess of the amounts necessary to pay the
redemption price of, and accrued interest on, all Debentures to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Debentures or the portions of Debentures called for redemption. If a
Debenture is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Debenture was registered at the close of
business on such record date. If any Debenture called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Debentures and in Section 4.01 hereof.
SECTION 3.06. DEBENTURES REDEEMED IN PART
Upon surrender of a Debenture that is redeemed in part, the Company
shall issue and, upon receipt of an Authentication Order, the Trustee shall
authenticate for the Holder at the expense of the Company a new Debenture equal
in principal amount to the unredeemed portion of the Debenture surrendered.
SECTION 3.07. OPTIONAL REDEMPTION
The Debentures will be redeemable, at the Company's option, in whole
or in part, at any time or from time to time, on or after May 15, 2003 and prior
to maturity, upon not less than 30 nor more than 60 days' prior notice mailed by
first class mail to each Holder's last registered address, at the following
redemption prices (expressed in percentages of principal amount), plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date, if
redeemed during the 12-month period commencing May 15, of the years set forth
below:
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YEAR PERCENTAGE
2003 . . . . . . . . . . . . . . . . . . . . . 106.563%
2004 . . . . . . . . . . . . . . . . . . . . . 104.375%
2005 . . . . . . . . . . . . . . . . . . . . . 102.188%
2006 and thereafter . . . . . . . . . . . . . . 100.000%
In addition, at any time or from time to time on or prior to May 15,
2001, the Company may redeem up to 35% of the principal amount at maturity of
the Debentures at a redemption price (expressed as a percentage of Accreted
Value) of 113.125%, plus accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date with the Net Cash Proceeds of one or more Equity
Offerings; PROVIDED that at least 65% of the aggregate principal amount at
maturity of Debentures remains outstanding after the occurrence of each such
redemption; and PROVIDED FURTHER, that such redemption occurs within 90 days of
the date of the closing of such Equity Offering.
SECTION 3.08. NO MANDATORY REDEMPTION
The Company shall not be required to make mandatory redemption
payments with respect to the Debentures.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF DEBENTURES
The Company shall pay or cause to be paid the principal of, premium,
if any, and interest on the Debentures on the dates and in the manner provided
in the Debentures. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 12:00 noon Eastern time on the due date money
deposited by the Company in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement. The
Company's Obligations under the Debentures, this Indenture and the Registration
Rights Agreement are referred to herein as the "Company Obligations."
The Company shall pay interest (including Accrued Bankruptcy Interest
in any proceeding under any Bankruptcy Law) on overdue principal at the then
applicable interest rate on the Debentures to the extent lawful; it shall pay
interest (including Accrued Bankruptcy Interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace period) at the same rate to the extent
lawful.
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SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY
The Company shall maintain an office or agency (which may be an office
of the Trustee or an affiliate of the Trustee, Registrar or co-registrar) where
Debentures may be surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect of the Debentures
and this Indenture may be served. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office as one such
office or agency of the Company in accordance with Section 2.03 hereof.
SECTION 4.03. SEC REPORTS AND REPORTS TO HOLDERS
Whether or not required by the rules and regulations of the SEC, so
long as any Debentures are outstanding, beginning with the year ending December
31, 1998, the Company shall furnish to the Holders of Debentures and the Trustee
(i) all quarterly and annual financial information that would be required to be
contained in a filing with the SEC on Forms 10-Q and 10-K if the Company were
required to file such Forms, including a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Company's certified independent
accountants and (ii) all current reports that would be required to be filed with
the SEC on Form 8-K if the Company were required to file such reports; PROVIDED
that the foregoing shall not require the Company to furnish separate financial
results of its Subsidiaries. In addition, whether or not required by the rules
and regulations of the SEC, the Company will file a copy of all such information
and reports with the SEC for public availability (unless the SEC will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request. In addition, for so long as any Debentures
remain outstanding, the Company shall furnish to the Holders and to securities
analysts and prospective investors, upon their request, the information required
to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
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SECTION 4.04. COMPLIANCE CERTIFICATE
(a) The Company shall deliver to the Trustee, within 105 days after
the end of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries during the preceding fiscal
year has been made under the supervision of the signing Officers with a view to
determining whether the Company and its Subsidiaries have kept, observed,
performed and fulfilled their obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company and its Subsidiaries are not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred and be
continuing, describing all such Defaults or Events of Default of which he or she
may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has
occurred and remains in existence by reason of which payments on account of the
principal of or interest, if any, on the Debentures is prohibited or if such
event has occurred, a description of the event and what action the Company is
taking or proposes to take with respect thereto.
(b) The Company shall, so long as any of the Debentures are
outstanding, deliver to the Trustee, within five Business Days of any Officer
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
SECTION 4.05. TAXES
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment would not have a material adverse
effect on the ability of the Company to satisfy its obligations under the
Debentures and this Indenture.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted
to the
50
Trustee, but shall suffer and permit the execution of every such power as
though no such law has been enacted.
SECTION 4.07. LIMITATION ON INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, incur any Indebtedness (including Acquired
Indebtedness) and the Company shall not issue or otherwise incur any
Disqualified Stock and shall not permit any of its Subsidiaries to issue or
otherwise incur any shares of Disqualified Stock; PROVIDED, HOWEVER, that the
Company and its Subsidiaries may incur Indebtedness (including Acquired
Indebtedness) or issue or otherwise incur shares of Disqualified Stock and
Foreign Subsidiaries may incur Indebtedness (including Acquired Indebtedness)
if: (i) the Fixed Charge Coverage Ratio for the Company's most recently ended
four full fiscal quarters for which internal financial statements are available
immediately preceding the date on which such additional Indebtedness is incurred
or such Disqualified Stock is issued or incurred would have been at least 1.75
to 1, determined on a pro forma basis (including a pro forma application of the
net proceeds therefrom), as if the additional Indebtedness had been incurred, or
the Disqualified Stock had been issued or incurred, as the case may be, at the
beginning of such four-quarter period; and (ii) no Default or Event of Default
will have occurred and be continuing or would occur as a consequence thereof;
PROVIDED, that no Guarantee may be incurred pursuant to this paragraph unless
the guaranteed Indebtedness is incurred by the Company or a Subsidiary pursuant
to this paragraph; and PROVIDED FURTHER, that all Indebtedness incurred by
Foreign Subsidiaries pursuant to this paragraph must be secured and must not be
subordinated in right of payment to any other Indebtedness.
The foregoing provisions will not apply to:
(i) the incurrence by GLC or any Subsidiaries thereof of
Senior Term Debt (and Guarantees thereof by the Company or its Subsidiaries);
PROVIDED that the aggregate principal amount of all Senior Term Debt outstanding
under this clause (i) after giving effect to such incurrence does not exceed
$120,000,000 less the aggregate amount of all Net Proceeds of Asset Sales
applied to repay Senior Term Debt pursuant to Section 4.13 hereof;
(ii) the incurrence by GLC or any Subsidiaries thereof of
Senior Revolving Debt (and Guarantees thereof by the Company or its
Subsidiaries) and reimbursement obligations in respect of letters of credit
in an aggregate principal amount at any time outstanding under this clause
(ii) (with letters of credit obligations being deemed to have a principal
amount equal to the maximum potential liability of GLC and its Subsidiaries
(and Guarantees thereof by the Company or its Subsidiaries) not to
51
exceed an amount equal to the greater of (a) $25,000,000, less the aggregate
amount of all Net Proceeds of Asset Sales applied to permanently reduce the
outstanding amount or, as applicable, the commitments with respect to such
Indebtedness pursuant to Section 4.13 hereof and (b) an amount equal to the
Borrowing Base;
(iii) the incurrence by the Company and its Subsidiaries of the
Existing Indebtedness (including any Permitted Refinancing Indebtedness incurred
to refinance, retire, renew, defease, refund or otherwise replace such
Indebtedness);
(iv) the incurrence by (a) the Company of Indebtedness
represented by (x) the Debentures issued as of the Issue Date, and (y) the
Exchange Debentures; and (b) GLC and its Subsidiaries of Indebtedness
represented by the Senior Subordinated Notes and any Guarantee thereof and by
Additional Notes (as defined in the Note Indenture) (and any Guarantees thereof)
issued in lieu of interest for up to four seminannual interest payments on the
Senior Subordinated Notes as set forth in the Note Indenture;
(v) the incurrence by the Company or any of its Subsidiaries
of Indebtedness represented by Capital Lease Obligations, Mortgage Financings or
Purchase Money Obligations, in each case incurred for the purpose of financing
all or any part of the purchase price or cost of construction or improvement of
property used in the business or a Related Business of the Company or such
Subsidiary, in an aggregate principal amount not to exceed $10,000,000 at any
time outstanding under this clause (v) (including any Permitted Refinancing
Indebtedness incurred to refinance, retire, renew, defease, refund or otherwise
replace any such Indebtedness);
(vi) the incurrence by the Company or any of its Subsidiaries
of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease or refund,
Indebtedness that was permitted by this Indenture to be incurred or was
outstanding on the Issue Date after giving effect to the Acquisition
Transactions;
(vii) the incurrence by the Company or any of its Subsidiaries
of intercompany Indebtedness between or among the Company and any of its
Subsidiaries or between or among any of its Subsidiaries; PROVIDED, HOWEVER,
that (x) any subsequent issuance or transfer of Equity Interests that results in
any such Indebtedness being held by a Person other than the Company or a
Subsidiary of the Company and (y) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a Subsidiary of the
Company will be deemed, in each case, to constitute an incurrence of such
Indebtedness by the Company or such Subsidiary, as the case may be;
52
(viii) the incurrence by the Company or any of its Subsidiaries
of Hedging Obligations that are incurred for the purpose of fixing or hedging
(a) interest rate risk with respect to any floating rate Indebtedness that is
permitted by this Indenture to be incurred or (b) currency risk (to the extent
incurred in the ordinary course of business and not for purposes of
speculation);
(ix) the incurrence by the Company or any of its Subsidiaries
of Indebtedness (in addition to Indebtedness permitted by any other clause of
this covenant) in an aggregate principal amount at any time outstanding under
this clause (ix) not to exceed the sum of $30,000,000 (including Permitted
Refinancing Indebtedness incurred to refinance, retire, renew, defease, refund
or otherwise replace any such Indebtedness); PROVIDED that such Indebtedness
may, but need not, be incurred under the New Credit Agreement;
(x) Indebtedness incurred by the Company or any of its
Subsidiaries arising from agreements providing for indemnification, adjustment
of purchase price or similar obligations, or from guarantees of letters of
credit, bankers' acceptances, surety bonds or performance bonds securing the
performance of the Company or any of its Subsidiaries to any Person acquiring
all or a portion of such business or assets of the Company or a Subsidiary of
the Company for the purpose of financing such acquisition, in a principal amount
not to exceed 25% of the gross proceeds (with proceeds other than cash or Cash
Equivalents being valued at the fair market value thereof as determined by the
Company in good faith) actually received by the Company or any of its
Subsidiaries in connection with such disposition;
(xi) the incurrence by a Receivables Subsidiary of
Indebtedness in a Qualified Receivables Transaction that is without recourse to
the Company or to any other Subsidiary of the Company or their assets (other
than such Receivables Subsidiary and its assets and, as to the Company or any
Subsidiary of the Company, other than pursuant to representations, warranties,
covenants and indemnities customary for such transactions) and is not guaranteed
by any such Person;
(xii) the incurrence by Foreign Subsidiaries of Indebtedness
(in addition to Indebtedness permitted by any other provision of this covenant)
in an aggregate amount not to exceed $25,000,000 at any time outstanding under
this clause (xii) (including any Permitted Refinancing Indebtedness incurred to
refinance, retire, renew, defease, refund or otherwise replace any such
Indebtedness);
(xiii) Indebtedness in respect of performance bonds, bankers'
acceptances, letters of credit and surety or appeal bonds entered into by the
Company and its Subsidiaries in the ordinary course of their business;
53
(xiv) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient funds in
the ordinary course of business; and
(xv) Finance Subsidiary Indebtedness.
Notwithstanding any other provision of this Section 4.07, a Guarantee
of Indebtedness permitted by the terms of this Indenture at the time such
Indebtedness was incurred or at the time the guarantor thereof became a
Subsidiary of the Company will not constitute a separate incurrence, or amount
outstanding, of Indebtedness. Upon each incurrence of Indebtedness by the
Company or any of its Subsidiaries, the Company shall designate pursuant to
which provision of this Section 4.07 such Indebtedness is being incurred and
such Indebtedness shall not be deemed to have been incurred or outstanding under
any other provision of this Section 4.07, except as stated otherwise in the
foregoing provision.
Indebtedness or Disqualified Stock of any Person which is outstanding
at the time such Person becomes a Subsidiary of the Company (including upon
designation of any subsidiary or other person as a Subsidiary) or is merged with
or into or consolidated with the Company or a Subsidiary of the Company shall be
deemed to have been incurred at the time such Person becomes a Subsidiary of the
Company or is merged with or consolidated with the Company or a Subsidiary of
the Company, as applicable.
SECTION 4.08. LIMITATION ON LIENS
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create, incur, assume or suffer to exist any Lien on
any asset now owned or hereafter acquired, or any income or profits therefrom or
assign or convey any right to receive income therefrom, except Permitted Liens,
unless the Senior Subordinated Notes or the Debentures are secured by such Lien
on an equal and ratable basis.
SECTION 4.09. LIMITATION ON RESTRICTED PAYMENTS
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly: (i) declare or pay any dividend or make any
distribution on account of the Company's or any of its Subsidiaries' Equity
Interests (other than dividends or distributions payable in Equity Interests
(other than Disqualified Stock) of the Company or GLC or dividends or
distributions payable to the Company or any Subsidiary); (ii) purchase,
redeem or otherwise acquire or retire for value any Equity Interests of the
54
Company or its Subsidiaries or any direct or indirect parent of the Company
(other than any such Equity Interests owned by the Company or any Subsidiary
of the Company and other than pursuant to the Acquisition Transactions);
(iii) make any principal payment on, or purchase, redeem, defease or
otherwise acquire or retire for value any Indebtedness that is contractually
subordinated to the Debentures (and other than Debentures), except for any
scheduled repayment (including any sinking fund or similar payment) or at
final maturity thereof; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through (iv), unless a
Permitted Investment, above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect to such Restricted
Payment:
(a) no Default or Event of Default will have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment and
after giving pro forma effect thereto as if such Restricted Payment had been
made at the beginning of the applicable four-quarter period, have been permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of Section 4.07; and
(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Subsidiaries after the
Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii),
(iv), (v) and (vi) of the next succeeding paragraph), is less than the sum of
(i) $7,500,000, plus (ii) 50% of the Consolidated Net Income (adjusted to
exclude any amounts that are otherwise included in this clause (c) to the
extent there would be, and to avoid, any duplication in the crediting of any
such amounts) of the Company for the period (taken as one accounting period)
from the beginning of the first fiscal quarter commencing after the Issue
Date to the end of the Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of such Restricted
Payment (or, if such Consolidated Net Income for such period is a deficit,
less 100% of such deficit), plus (iii) to the extent not included in the
amount described in clause (ii) above, 100% of the aggregate Net Cash
Proceeds received after the Issue Date by the Company from the issue or sale
of, or from capital contributions in respect of, Equity Interests of the
Company or of debt securities of the Company or any Subsidiary that have been
converted into, or cancelled in exchange for, Equity Interests of the Company
(other than Equity Interests (or convertible debt securities) sold to a
Subsidiary of the Company and other than Disqualified Stock or debt
securities that have been converted into Disqualified Stock), plus (iv) 100%
of any dividends or other distributions received by the Company or a
Subsidiary of the Company after the Issue Date from an Unrestricted
Subsidiary of the Company, plus (v) 100% of the cash proceeds (or Cash
Equivalents) realized upon the
55
sale of any Unrestricted Subsidiary (less the amount of any reserve
established for purchase price adjustments and less the maximum amount of any
indemnification or similar contingent obligation for the benefit of the
purchaser, any of its Affiliates or any other third party in such sale, in
each case as adjusted for any permanent reduction in any such amount on or
after the date of such sale, other than by virtue of a payment made to such
Person) following the Issue Date, plus (vi) to the extent that any Restricted
Investment that was made after the Issue Date is sold for cash (or Cash
Equivalents) or otherwise liquidated or repaid for cash (or Cash
Equivalents), the amount of cash proceeds (or Cash Equivalents) received with
respect to such Restricted Investment plus (vii) upon the redesignation of an
Unrestricted Subsidiary as a Subsidiary, the lesser of (x) the fair market
value of such Subsidiary or (y) the aggregate amount of all Investments made
in such Subsidiary subsequent to the Issue Date by the Company and its
Subsidiaries.
The foregoing provisions will not prohibit, if and to the extent
any of the following would otherwise constitute a Restricted Payment, (i) the
payment of any dividend within 60 days after the date of declaration thereof,
if at said date of declaration such payment would have complied with the
provisions of this Indenture; (ii) if no Default or Event of Default shall
have occurred and be continuing (and shall not have been waived) or shall
occur as a consequence thereof, the payment by the Company of a management
fee to AIP in an amount not to exceed $1,850,000 in any fiscal year and the
reimbursement by the Company of AIP's reasonable out-of-pocket expenses
incurred in connection with the rendering of management services to or on
behalf of the Company; PROVIDED, HOWEVER, that no such fees may be paid, and
no such expenses may be reimbursed, unless the obligation of the Company to
pay such management fee has been subordinated to the payment of all
Obligations with respect to the Debentures; (iii) the making of any
Restricted Investment in exchange for, or out of the proceeds of, the
substantially concurrent sale (other than to a Subsidiary of the Company) of,
or from substantially concurrent additional capital contributions in respect
of, Equity Interests of the Company (other than Disqualified Stock);
PROVIDED, that any Net Cash Proceeds that are utilized for any such
Restricted Investment will be excluded from clause (c)(iii) of the preceding
paragraph; (iv) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a Subsidiary of
the Company) of, or from substantially concurrent capital contributions in
respect of, other Equity Interests of the Company (other than any
Disqualified Stock); PROVIDED that any Net Cash Proceeds that are utilized
for any such redemption, repurchase, retirement or other acquisition, will be
excluded from clause (c)(iii) of the preceding paragraph; (v) the defeasance,
redemption or repurchase of, or the making of a principal payment on, or the
acquisition or retirement for value of, subordinated Indebtedness in exchange
for or with the net cash proceeds from an incurrence of Permitted Refinancing
Indebtedness or the substantially
56
concurrent sale (other than to a Subsidiary of the Company) of, or from
substantially concurrent capital contributions in respect of, Equity
Interests of the Company (other than Disqualified Stock); PROVIDED, that any
net cash proceeds that are utilized for any such defeasance, redemption or
repurchase will be excluded from clause (c)(iii) of the preceding paragraph;
(vi) the repurchase, redemption or other acquisition or retirement for value
of any Equity Interests of the Company or any Subsidiary of the Company held
by any member of the Company's (or any of its Subsidiaries') management
pursuant to any management agreement or stock option agreement or upon the
death, disability or termination of employment of such member; PROVIDED that
the aggregate price paid for all such repurchased, redeemed, acquired or
retired Equity Interests will not exceed $50,000 in the aggregate (net of the
Net Cash Proceeds received by the Company or its Subsidiaries from subsequent
reissuances of such Equity Interests to new members of such management), and
no Default or Event of Default will have occurred and be continuing
immediately after such transaction; (vii) the acquisition by a Receivables
Subsidiary in connection with a Qualified Receivables Transaction of Equity
Interests of a trust or other Person established by such Receivables
Subsidiary to effect such Qualified Receivables Transaction; (viii) PRO RATA
dividends and other distributions on the Equity Interests of any Subsidiary
of the Company by such Subsidiary; and (ix) payments in lieu of fractional
shares in an amount not to exceed $50,000 in the aggregate.
The Board of Directors may designate any Subsidiary to be an
Unrestricted Subsidiary if such designation would not cause a Default or Event
of Default. For purposes of making such determination, all outstanding
Investments by the Company and its Subsidiaries (except to the extent repaid in
cash or Cash Equivalents) in the Subsidiary so designated will be deemed to be
Restricted Payments at the time of such designation and will reduce the amount
available for Restricted Payments under the first paragraph of this Section
4.09. All such outstanding Investments shall be deemed to constitute Investments
in an amount equal to the greatest of (x) the net book value of such Investments
at the time of such designation, (y) the fair market value of such Investments
at the time of such designation and (z) the original fair market value of such
Investments at the time they were made. Such designation shall only be permitted
if such Restricted Payment would be permitted at such time and if such
Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.
57
The amount of all Restricted Payments (other than cash or Cash
Equivalents) shall be the fair market value (as and to the extent set forth in
an Officers' Certificate delivered to the Trustee pursuant to the next sentence)
on the date of the Restricted Payment of the asset(s) proposed to be transferred
by the Company or such Subsidiary, as the case may be, pursuant to the
Restricted Payment. Not later than five Business Days following the date of
making any Restricted Payment in excess of $1,000,000, the Company shall deliver
to the Trustee an Officers' Certificate stating that such Restricted Payment is
permitted and setting forth the basis upon which the calculations required by
this Section were computed, which calculations may be based upon the Company's
latest available financial statements.
SECTION 4.10. LIMITATION ON DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES
The Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction on the ability of any
Subsidiary to (i)(a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (1) on its Capital Stock or (2) with respect
to any other interest or participation in, or measured by, its profits, or
(b) pay any Indebtedness owed to the Company or any of its Subsidiaries,
(ii) make loans or advances to the Company or any of its Subsidiaries or
(iii) transfer any of its properties or assets to the Company or any of its
Subsidiaries, except for such encumbrances or restrictions existing under or by
reason of (a) Existing Indebtedness as in effect on the Issue Date, and any
amendments, modifications, restatements, renewals, increases, supplements,
refundings, replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
the applicable Existing Indebtedness as in effect on the Issue Date, (b) the New
Credit Agreement as in effect as of the Issue Date, and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
the New Credit Agreement as in effect on the Issue Date, (c) the Note Indenture
as in effect as of the Issue Date, and any amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings, replacements or
refinancings are no more restrictive, taken as a whole, with respect to such
dividend and other payment restrictions than those contained in the Note
Indenture as in effect on the Issue Date, (d) this Indenture and the
58
Debentures or any Indebtedness ranking on a PARI PASSU basis with the
Debentures, provided such restrictions are no more restrictive, taken as a
whole, than those contained in this Indenture, (e) applicable law, (f) any
instrument governing Acquired Indebtedness or Capital Stock of a Person
acquired by the Company or any of its Subsidiaries as in effect at the time
of such acquisition (except to the extent such Acquired Indebtedness was
incurred in connection with or in contemplation of such acquisition), which
encumbrance or restriction is not applicable to any Person, or the properties
or assets of any Person, other than the Person, or the property or assets of
the Person, so acquired, (g) by reason of customary non-assignment provisions
in leases and licenses entered into in the ordinary course of business, (h)
Purchase Money Obligations, Mortgage Financings or Capital Lease Obligations
for property acquired in the ordinary course of business that impose
restrictions of the nature described in clause (iii) above on the property so
acquired, (i) agreements relating to the financing of the acquisition of real
or tangible personal property acquired on or after the Issue Date, PROVIDED,
that such encumbrance or restriction relates only to the property which is
acquired and in the case of any encumbrance or restriction that constitutes a
Lien, such Lien constitutes a Permitted Lien, (j) Indebtedness or other
contractual requirements of a Receivables Subsidiary in connection with a
Qualified Receivables Transaction, provided that such restrictions apply only
to such Receivables Subsidiary, (k) any restriction or encumbrance contained
in contracts for sale of assets permitted by this Indenture in respect of the
assets being sold pursuant to such contract, (l) Indebtedness permitted to be
incurred under Section 4.07 hereof and incurred on or after the Issue Date,
PROVIDED, that such encumbrances or restrictions in such Indebtedness are no
more onerous, taken as a whole, than the restrictions contained in the New
Credit Agreement on the Issue Date, or as the New Credit Agreement may be
amended, modified, restated, renewed, increased, supplemented, refunded,
replaced or refinanced as set forth in clause (b) above, (m) restrictions
contained in Indebtedness of Foreign Subsidiaries incurred under Section
4.07, (n) Permitted Refinancing Indebtedness, provided that the restrictions
contained in the agreements governing such Permitted Refinancing Indebtedness
are no more restrictive than those contained in the agreements governing the
Indebtedness being refinanced, (o) restrictions with respect to the Company
or a Subsidiary of the Company imposed pursuant to a binding agreement
entered into for the sale or disposition of Equity Interests or assets of
such Person permitted pursuant to this Indenture, or (p) agreements relating
to Permitted Liens or Indebtedness related thereto; PROVIDED that such
encumbrance or restriction relates only to the property subject to such
Permitted Lien.
SECTION 4.11. LIMITATION ON LINES OF BUSINESS
Neither the Company nor any of its Subsidiaries shall directly or
indirectly engage to any substantial extent in any line or lines of business
activity other
59
than that which, in the reasonable good faith judgment of the Board of
Directors of the Company, is a Related Business.
SECTION 4.12. LIMITATION ON TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of its Subsidiaries
to, sell, lease, transfer or otherwise dispose of any of its properties or
assets to, or purchase any property or assets from, or enter into or make any
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless (i) such Affiliate Transaction is on terms that are no less favorable to
the Company or the relevant Subsidiary than those that would have been obtained
in a comparable transaction by the Company or such Subsidiary with an unrelated
Person and (ii) the Company delivers to the Trustee (a) with respect to any
Affiliate Transaction entered into after the Issue Date involving aggregate
consideration in excess of $5,000,000, a resolution of the Board of Directors
set forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and that such Affiliate Transaction has been
approved by a majority of the disinterested members (if any) of the Board of
Directors and (b) with respect to any Affiliate Transaction involving aggregate
consideration in excess of $10,000,000, an opinion as to the fairness to the
Company or such Subsidiary of such Affiliate Transaction from a financial point
of view issued by an investment banking firm of national standing or, in the
event such transaction is of a type that investment bankers do not generally
render fairness opinions, a valuation or appraisal firm of national reputation;
PROVIDED that the following will not be deemed to be Affiliate Transactions:
(w) the provision of administrative or management services by the Company or any
of its officers to any of its Subsidiaries in the ordinary course of business,
(x) any employment agreement entered into by the Company or any of its
Subsidiaries in the ordinary course of business, (y) transactions between or
among the Company and/or its Subsidiaries or transactions between a Receivables
Subsidiary or a Finance Subsidiary and any Person in which the Receivables
Subsidiary or Finance Subsidiary has an Investment and (z) transactions
permitted by Section 4.09. In addition, none of the Acquisition Transactions
shall be deemed to be Affiliate Transactions.
SECTION 4.13. LIMITATION ON ASSET SALES
The Company shall not, and shall not permit any of its Subsidiaries
to, engage in an Asset Sale in excess of $1,000,000 unless (i) the Company
(or the Subsidiary, as the case may be) receives consideration at the time of
such Asset Sale at least equal to the fair market value of the assets or
Equity Interests sold or otherwise disposed of, and in the case of a lease of
assets, a lease providing for rent and other conditions which are no less
favorable to the Company (or the Subsidiary, as the case may be) in any
material respect than the then prevailing market conditions (in each case
60
as set forth in an Officers' Certificate delivered to the Trustee), (ii) at
least 75% of the consideration therefor received by the Company or such
Subsidiary is in the form of cash or Cash Equivalents; PROVIDED that the
amount of (x) any liabilities (as shown on the Company's or such Subsidiary's
most recent balance sheet or in the notes thereto, excluding contingent
liabilities and trade payables) of the Company or any Subsidiary (other than
liabilities that are by their terms subordinated to, or PARI PASSU with, the
Debentures) that are assumed by the transferee of any such assets and (y) any
notes or other obligations received by the Company or any such Subsidiary
from such transferee that are promptly, but in no event more than 30 days
after receipt, converted by the Company or such Subsidiary into cash (to the
extent of the cash received), will be deemed to be cash for purposes of this
provision and the receipt of such cash shall be treated as cash received from
an Asset Sale for which such Debentures or obligations were received.
The Company or any of its Subsidiaries may apply the Net Proceeds
from each Asset Sale, at its option, within 415 days after the consummation
of such Asset Sale, (a) to permanently reduce any Indebtedness (and in the
case of any revolving indebtedness to correspondingly permanently reduce
commitments with respect thereto) of the Company or a Subsidiary of the
Company, or (b) for the acquisition of another business or the acquisition of
other property or assets, in each case, in the same or a Related Business or
(c) for any combination of the foregoing. Pending the final application of
any such Net Proceeds, the Company may temporarily reduce Indebtedness of a
Subsidiary of the Company or otherwise invest such Net Proceeds in any manner
that is not prohibited by this Indenture. Any Net Proceeds from Asset Sales
that are not applied or invested as provided in the first sentence of this
paragraph will be deemed to constitute "Excess Proceeds." When the aggregate
amount of Excess Proceeds exceeds $5,000,000, the Company will be required to
make an offer to all Holders of Debentures (an "Asset Sale Offer") and to
holders of other Indebtedness of the Company outstanding ranking on a PARI
PASSU basis with the Debentures with provisions requiring the Company to make
an offer (or otherwise redeem or prepay) with proceeds from the Asset Sales,
PRO RATA in proportion to the respective principal amounts (or accreted
values in the case of Indebtedness issued with an original issue discount) of
the Debentures and such other Indebtedness then outstanding, to purchase (or
otherwise redeem or prepay) the maximum principal amount (or Accreted Value,
as applicable) of Debentures and such other Indebtedness, if any, that may be
purchased (or redeemed or prepaid) out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100% of the principal amount (or Accreted
Value, if the date of repurchase is prior to May 15, 2003) thereof plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
date of purchase, in accordance with the procedures set forth in this
Section. If the aggregate principal amount (or Accreted Value, as
applicable) of Debentures and such Indebtedness surrendered by Holders
thereof exceeds the amount of Excess Proceeds, the
61
Trustee shall select the Debentures and such Indebtedness to be purchased on
a PRO RATA basis. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero.
The Asset Sale Offer will remain open for a period not to exceed 30
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Asset Sale Offer
Period"). No later than five Business Days after the termination of the Asset
Sale Offer Period (the "Asset Sale Purchase Date"), the Company will purchase
the principal amount of Debentures required to be purchased pursuant to this
covenant (the "Asset Sale Offer Amount") or, if less than the Asset Sale Offer
Amount has been tendered, all Debentures tendered in response to the Asset Sale
Offer. Payment for any Debentures so purchased will be made in the same manner
as interest payments are made. The Company will comply with the requirements of
Rule 14e-1 under the Exchange Act and any other securities laws and regulations
thereunder to the extent such laws and regulations were applicable in connection
with the repurchase of the Debentures as a result of an Asset Sale Offer. To the
extent the provisions of any such securities laws or regulations conflict with
the provisions of this covenant, compliance by the Company with such laws, rules
and regulations shall not in and of itself cause a breach of its obligations
under this covenant.
If the Asset Sale Purchase Date is on or after an interest record date
and on or before the related interest payment date, any accrued and unpaid
interest will be paid to the Person in whose name a Debenture is registered at
the close of business on such record date, and no additional interest will be
payable to Holders who tender Debentures pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall send,
by first class mail, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Debentures pursuant to the Asset Sale Offer. The Asset Sale
Offer shall be made to all Holders. The notice, which shall govern the terms of
the Asset Sale Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this covenant
and the length of time the Asset Sale Offer shall remain open;
(b) the Asset Sale Offer Amount, the purchase price and the Asset
Sale Purchase Date;
(c) that any Debenture not tendered or accepted for payment shall
continue to accrete or accrue interest;
62
(d) that, unless the Company defaults in making such payment, any
Debenture accepted for payment pursuant to the Asset Sale Offer shall cease to
accrete or accrue interest after the Asset Sale Purchase Date;
(e) that Holders electing to have a Debenture purchased pursuant to
any Asset Sale Offer shall be required to surrender the Debenture, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Debenture
completed, or transfer the Debenture by book-entry transfer, to the Company, a
Depositary, if appointed by the Company, or a Paying Agent at the address
specified in the notice at least three days before the Asset Sale Purchase Date;
(f) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Debenture the Holder delivered for purchase and a statement that
such Holder is withdrawing his election to have such Debenture purchased;
(g) that, if the aggregate principal amount (or Accreted Value, if
the date of repurchase is prior to May 15, 2003) of Debentures surrendered by
Holders exceeds the Asset Sale Offer Amount, the Trustee shall select the
Debentures to be purchased on a PRO RATA basis (with such adjustments as may be
deemed appropriate by the Trustee so that only Debentures in denominations of
$1,000, or integral multiples thereof, shall be purchased); and
(h) that Holders whose Debentures were purchased only in part shall
be issued new Debentures equal in principal amount to the unpurchased portion of
the Debentures surrendered (or transferred by book-entry transfer).
On or before the Asset Sale Purchase Date, the Company will, to the
extent lawful, accept for payment, on a PRO RATA basis to the extent
necessary, the Asset Sale Offer Amount of Debentures or portions thereof
tendered pursuant to the Asset Sale Offer, or if less than the Asset Sale
Offer Amount has been tendered, all Debentures tendered, and will deliver to
the Trustee an Officers' Certificate stating that such Debentures or portions
thereof were accepted for payment by the Company in accordance with the terms
of this covenant. The Company, the Depositary or the Paying Agent, as the
case may be, will promptly (but in any case not later than five Business Days
after the Asset Sale Purchase Date) mail or deliver to each tendering Holder
an amount equal to the purchase price of the Debentures tendered by such
Holder and accepted by the Company for purchase, and the Company will
promptly issue a new Debenture, and the Trustee, upon delivery of an
Officers' Certificate from the Company, will authenticate and mail or deliver
such new Debenture to such Holder, in a principal
63
amount at maturity equal to any unpurchased portion of the Debenture
surrendered. Any Debenture not so accepted will be promptly mailed or
delivered by the Company to the Holder thereof.
SECTION 4.14. REPURCHASE OF DEBENTURES UPON A CHANGE OF CONTROL
The Company must commence, within 35 days of the occurrence of a
Change of Control, and consummate an Offer to Purchase for all Debentures then
outstanding, at a purchase price equal to 101% of the principal amount (or
Accreted Value, if the date of repurchase is prior to May 15, 2003) thereof,
plus accrued interest (if any) to the Payment Date.
The Company will not be required to make an Offer to Purchase pursuant
to this covenant if a third party makes an Offer to Purchase in compliance with
this covenant and repurchases all Debentures validly tendered and not withdrawn
under such Offer to Purchase.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company shall not, in a single transaction or series of related
transactions, consolidate or merge with or into (whether or not the Company
is the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets in
one or more related transactions, to another corporation, Person or entity
unless (i) the Company is the surviving corporation or the entity or the
Person formed by or surviving any such consolidation or merger (if other than
the Company) or to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made (the "Surviving Entity") is a
corporation organized or existing under the laws of the United States, any
state thereof or the District of Columbia; (ii) the Surviving Entity assumes
all the obligations of the Company under the Debentures and this Indenture
pursuant to a supplemental indenture in a form reasonably satisfactory to the
Trustee; (iii) immediately after such transaction no Default or Event of
Default exists; (iv) the Surviving Entity shall, at the time of such
transaction and after giving pro forma effect thereto as if such transaction
had occurred at the beginning of the applicable four-quarter period, be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in the first paragraph of Section
4.09; and (v) the Company shall have delivered to the Trustee an Officers'
Certificate addressed to the Trustee stating that such consolidation, merger,
64
sale, assignment, transfer, lease, conveyance or disposition and such
supplemental indenture, if any, comply with this Indenture and that such
supplemental indenture is enforceable.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; PROVIDED, HOWEVER, that
the predecessor of the Company shall not be relieved from the obligation to pay
the principal of and interest on the Debentures.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT
Each of the following constitutes an Event of Default:
(a) default in the payment of interest on, or Liquidated Damages with
respect to, any Debenture when the same becomes due and payable, and such
default continues for a period of 30 days;
(b) default in the payment of principal of or premium, if any, on any
Debenture when the same becomes due and payable;
(c) the Company fails to make or consummate an Asset Sale Offer in
accordance with Section 4.13 or an Offer to Purchase in accordance with Section
4.14;
(d) the failure by the Company for 30 days after written notice by
the Trustee or the Holders of 25% or more in aggregate principal amount at
maturity of the Debentures to comply with Section 4.07 or Section 4.09;
65
(e) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture or the Debentures and
such default or breach continues for a period of 60 days after written notice by
the Trustee or the Holders of 25% or more in aggregate principal amount at
maturity of the Debentures;
(f) default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Company or any of its Subsidiaries or the
payment of which is guaranteed by the Company or any of its Subsidiaries whether
such Indebtedness or guarantee now exists, or is created after the Issue Date,
which default (A) is caused by a failure to pay principal upon final stated
maturity of such Indebtedness following the expiration of any grace period
provided in such Indebtedness or (B) results in the acceleration of such
Indebtedness prior to its final stated maturity and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a default in the payment of
principal upon final stated maturity which has not been cured and is continuing
following the expiration of any applicable grace period or the maturity of which
has been so accelerated and has not been satisfied, aggregates $7,500,000 or
more;
(g) any final judgment or order for the payment of money shall be
rendered against the Company or any Significant Subsidiary in excess of
$7,500,000 in the aggregate for all such final judgments or orders against all
such Persons and shall not be paid or discharged, and there shall be any period
of 60 consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders outstanding
and not paid or discharged against all such Persons to exceed $7,500,000;
(h) a court having jurisdiction in the premises enters a decree or
order for (A) relief in respect of the Company or any Significant Subsidiary in
an involuntary case under any applicable Bankruptcy Law now or hereafter in
effect, (B) appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or
for all or substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary and, in each case, such decree or
order shall remain unstayed and in effect for a period of 60 consecutive days;
or
(i) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable Bankruptcy Law now or hereafter in
effect, or consents to the entry of an order for relief in an involuntary
case under any such law, (B) consents to the appointment of or taking
possession by a receiver, liquidator, assignee,
66
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) effects any
general assignment for the benefit of creditors.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
SECTION 6.02. ACCELERATION
If an Event of Default (other than an Event of Default specified in
clause (h) or (i) of Section 6.01 that occurs with respect to the Company)
occurs and is continuing under this Indenture, the Trustee or the Holders of at
least 25% in aggregate principal amount at maturity of the Debentures, then
outstanding, by written notice to the Company (and to the Trustee if such notice
is given by the Holders), may, and the Trustee at the request of such Holders
shall, declare the principal of (if on or after May 15, 2003, or Accreted Value
thereof if prior to May 15, 2003), premium, if any, and accrued interest
(including Liquidated Damages) on the Debentures to be immediately due and
payable. Upon a declaration of acceleration, such principal of, premium, if
any, and accrued interest shall be immediately due and payable; PROVIDED that
such acceleration shall automatically be rescinded and annulled without any
further action required on the part of the Holders in the event that any and all
Events of Default specified in the acceleration notice under this Indenture
shall have been cured, waived or otherwise remedied as provided in this
Indenture. In the event of a declaration of acceleration because an Event of
Default set forth in clause (f) above has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and annulled if the
default triggering such Event of Default pursuant to clause (f) shall be
remedied or cured by the Company or the relevant Subsidiary or waived by the
holders of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in clause
(h) or (i) above occurs with respect to the Company, the principal of (if on or
after May 15, 2003, or Accreted Value thereof if prior to May 15, 2003),
premium, if any, and accrued interest on the Debentures then outstanding shall
IPSO FACTO become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holder.
SECTION 6.03. OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal, premium, if
any, and interest on the Debentures or to enforce the performance of any
provision of the Debentures or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Debenture in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS
The Holders of at least a majority in principal amount at maturity of
the outstanding Debentures by written notice to the Company and to the Trustee,
may waive all past defaults and rescind and annul a declaration of acceleration
and its consequences if (i) all existing Events of Default, other than the
nonpayment of the principal of, premium, if any, and interest on the Debentures
that have become due solely by such declaration of acceleration, have been cured
or waived and (ii) the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction. Upon any such waiver, such Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 6.05. CONTROL BY MAJORITY
Holders of at least a majority in aggregate principal amount at
maturity of the then outstanding Debentures may direct the time, method and
place of conducting any proceeding for exercising any remedy available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture
that the Trustee determines in good faith may be unduly prejudicial to the
rights of other Holders of Debentures not joining in the giving of such
direction or that may involve the Trustee in personal liability and the Trustee
may take any other action it deems proper that is not inconsistent with any such
direction received from Holders of the Debentures.
SECTION 6.06. LIMITATION ON SUITS
A Holder of a Debenture may pursue a remedy with respect to this
Indenture or the Debentures only if:
(a) the Holder of a Debenture gives to the Trustee written notice of
a continuing Event of Default;
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(b) the Holders of at least 25% in aggregate principal amount at
maturity of the then outstanding Debentures make a written request to the
Trustee to pursue the remedy;
(c) such Holder of a Debenture or Holders of Debentures offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any costs, liability or expense;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount at maturity of the then outstanding Debentures do not give the Trustee a
direction inconsistent with the request.
A Holder of a Debenture may not use this Indenture to prejudice the
rights of another Holder of a Debenture or to obtain a preference or priority
over another Holder of a Debenture.
SECTION 6.07. RIGHTS OF HOLDERS OF DEBENTURES TO RECEIVE PAYMENT
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Debenture to receive payment of the principal of, premium and
Liquidated Damages, if any, and interest on the Debenture, on or after the
respective due dates expressed in the Debenture (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and interest remaining
unpaid on the Debentures and interest on overdue principal and, to the extent
lawful, interest and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee is authorized to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders of the Debentures allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Debentures), its creditors or its
property and shall be entitled and empowered to collect, receive and distribute
any money or other property payable or deliverable on any such claims and any
custodian in any such judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof. To the extent that the
payment of any such compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof out of the estate in any such proceeding, shall be denied
for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other
properties that the Holders may be entitled to receive in such proceeding
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debentures
or the rights of any Holder, or to authorize the Trustee to vote in respect of
the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
FIRST: to the Trustee, its agents and attorneys for amounts due under
Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
SECOND: to Holders of Debentures for amounts due and unpaid on the
Debentures for principal and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Debentures for principal, premium and Liquidated Damages, if any,
and interest, respectively; and
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THIRD: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Debentures pursuant to this Section 6.10.
SECTION 6.11. UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder of a
Debenture pursuant to Section 6.07 hereof, or a suit by Holders of more than 10%
in principal amount at maturity of the then outstanding Debentures.
ARTICLE 7.
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates
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and opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by an Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to Sections
7.01 and 7.02.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee shall be under
no obligation to exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE
(a) In connection with the Trustee's rights and duties under this
Indenture, the Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting under this
Indenture, it may require an Officers' Certificate or an Opinion of Counsel
or both. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance
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on such Officers' Certificate or Opinion of Counsel. The Trustee may consult
with counsel and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
that might be incurred by it in compliance with such request or direction.
(g) Except with respect to Section 4.01 hereof, the Trustee shall
have no duty to inquire as to the performance of the Company's covenants in
Article 4 hereof. In addition, the Trustee shall not be deemed to have
knowledge of any Default or Event of Default except (i) any Event of Default
occurring pursuant to Sections 6.01(a), 6.01(b) and 4.01 or (ii) any Default or
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the Trustee
may, in its discretion, make such further inquiry or investigation into such
facts or matters as it may see fit and if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company personally or by agent or attorney.
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SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become the
owner or pledgee of Debentures and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest (as defined in the TIA) it must eliminate such conflict within 90 days,
apply to the SEC for permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Debentures, it shall not
be accountable for the Company's use of the proceeds from the Debentures or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture, it shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Debentures or any other document in connection with the sale of the Debentures
or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to Holders of Debentures in the
manner and to the extent provided by Section 313(c) of the TIA a notice of the
Default or Event of Default within 90 days after it occurs. Except in the case
of a Default or Event of Default in payment of principal of, premium, if any, or
interest on any Debenture, the Trustee may withhold the notice if and so long as
a committee of its Officers in good faith determines that withholding the notice
is in the interests of the Holders of the Debentures.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE DEBENTURES
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Debentures remain outstanding,
the Trustee shall mail to the Holders of the Debentures a brief report dated as
of such reporting date that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the 12 months preceding the
reporting date, no report need be transmitted). The Trustee also shall comply
with TIA Section 313(b)(2). The Trustee shall also transmit by mail all
reports as required by TIA Section 313(c).
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A copy of each such report at the time of its mailing to the Holders
of Debentures shall be mailed to the Company and filed with the SEC and each
stock exchange on which the Debentures are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee when the Debentures are
listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses (including reasonable attorneys' fees) incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, including the costs and expenses of enforcing this
Indenture against the Company (including this Section 7.07) and defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder, except to the extent any such loss, liability or
expense may be attributable to its negligence, bad faith or willful misconduct.
The Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company shall not relieve
the Company of its obligations hereunder. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Debentures on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Debentures. Such Lien shall survive the satisfaction and
discharge of this Indenture.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Sections 6.01(h) or 6.01(i) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
SECTION 7.08. REPLACEMENT OF TRUSTEE
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Debentures
of a majority in principal amount at maturity of the then outstanding Debentures
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount at maturity of the then outstanding Debentures
may appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Debentures of at least 10% in principal amount at maturity of the
then outstanding Debentures may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
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If the Trustee, after written request by any Holder of a Debenture who
has been a Holder of a Debenture for at least six months, fails to comply with
Section 7.10, such Holder of a Debenture may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of the Debentures. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; PROVIDED
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION
There shall at all times be a Trustee hereunder that is a corporation
(or a member of a bank holding company) organized and doing business under the
laws of the United States of America or of any state thereof that is authorized
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state authorities and that has (or the
bank holding company of which it is a member has) a combined capital and surplus
of at least $50,000,000 as set forth in its most recent published annual report
of condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
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ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE
The Company may, at the option of its Board of Directors evidenced by
a resolution set forth in an Officers' Certificate, at any time, elect to have
either Section 8.02 or 8.03 hereof be applied to all outstanding Debentures upon
compliance with the conditions set forth below in this Article 8.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Debentures on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Debentures, which shall thereafter be deemed to be "outstanding"
only for the purposes of Section 8.05 hereof and the other Sections of this
Indenture referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Debentures and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders
of outstanding Debentures to receive solely from the trust fund described in
Section 8.04 hereof, and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest and Liquidated
Damages, if any, on such Debentures when such payments are due, (b) the
Company's obligations with respect to such Debentures under Article 2 and
Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection therewith and
(d) this Article 8. Subject to compliance with this Article 8, the Company may
exercise its option under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, the Company be released from its
obligations under Sections 4.03, 4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13 and 4.14 hereof, in each case on and after the date the conditions
set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Debentures shall thereafter be deemed not "outstanding" for the
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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
(it being understood that such Debentures shall not be deemed outstanding for
accounting purposes). For this purpose, Covenant Defeasance means that, with
respect to the outstanding Debentures, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of
any reference elsewhere herein to any such covenant or by reason of any
reference in any such covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an
Event of Default under Section 6.01 hereof, but, except as specified above,
the remainder of this Indenture and such Debentures shall be unaffected
thereby. In addition, upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.03 hereof, subject to the
satisfaction of the conditions set forth in Section 8.04 hereof, (x) Sections
6.01(c) through 6.01(g) hereof shall not constitute Events of Default and (y)
Sections 6.01(h) and 6.01(i) shall not constitute Events of Default as of the
91st day following the occurrence of Covenant Defeasance.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Debentures:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, cash in United States dollars, non-callable
Government Securities, or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium and Liquidated Damages, if any,
and interest on the outstanding Debentures on the stated date for payment
thereof or on the applicable redemption date, as the case may be, and the
Company must specify whether the Debentures are being defeased to maturity or to
a particular redemption date;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of the outstanding Debentures will not recognize income, gain or
loss for federal income tax purposes as a result of such Legal Defeasance and
will be
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subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Legal Defeasance had not
occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Debentures will not recognize income, gain or loss for federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the incurrence of Indebtedness all or a portion of the proceeds
of which will be used to defease the Debentures pursuant to this Article 8
concurrently with such incurrence);
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) 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 over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company; and
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for or relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
Legal Defeasance and Covenant Defeasance shall be deemed to occur on
the date of the deposit required under Section 8.04(a), so long as all of the
other conditions set forth in Section 8.04 are satisfied as of such date.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this
Section 8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of
the outstanding Debentures shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Debentures and this
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Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as Paying Agent) as the Trustee may determine,
to the Holders of such Debentures of all sums due and to become due thereon
in respect of principal, premium, if any, and interest, but such money need
not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof.
Anything in this Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.06. REPAYMENT TO COMPANY
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
Liquidated Damages or interest on any Debenture and remaining unclaimed for two
years after such principal, and premium, if any, Liquidated Damages, if any, or
interest has become due and payable shall be paid to the Company on its request
or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Debenture shall thereafter, as a 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 the New York Times and The
Wall Street Journal (national edition), notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
SECTION 8.07. REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any United States
dollars or non-callable Government Securities in accordance with Section 8.02
or 8.03
81
hereof, as the case may be, by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Debentures shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.02 or 8.03 hereof until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
8.02 or 8.03 hereof, as the case may be; PROVIDED, HOWEVER, that, if the
Company makes any payment of principal of, premium, if any, or interest on
any Debenture following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Debentures to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF DEBENTURES
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Debentures without the
consent of any Holder of a Debenture:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Debentures in addition to or in
place of certificated Debentures;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Debentures in the case of a merger or consolidation pursuant to
Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Debentures or that does not adversely affect the
legal rights hereunder of any Holder of the Debenture;
(e) to comply with the provisions of the Depositary, Euroclear or
Cedel or the Trustee with respect to the provisions of this Indenture or the
Debentures relating to transfers and exchanges of Debentures or beneficial
interests therein; or
(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
82
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company in the execution of
any amended or supplemental Indenture authorized or permitted by the terms of
this Indenture and to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be obligated to enter
into such amended or supplemental Indenture that adversely affects its own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF DEBENTURES
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including Sections 4.13 and 4.14
hereof), and the Debentures with the consent of the Holders of a majority in
aggregate principal amount of the Debentures then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, the Debentures), and, subject to Sections
6.04 and 6.07 hereof, any existing Default or Event of Default (other than a
Default or Event of Default in the payment of the principal of, premium, if any,
or interest on the Debentures, except a payment default resulting from an
acceleration that has been rescinded) or compliance with any provision of this
Indenture or the Debentures may be waived with the consent of the Holders of a
majority in aggregate principal amount of the then outstanding Debentures
(including consents obtained in connection with a purchase of, or tender offer
or exchange offer for, the Debentures).
In connection with any amendment, supplement or waiver under this
Article 9, the Company may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Debentures as aforesaid, and upon
receipt by the Trustee of the documents described in Section 7.02 hereof, the
Trustee shall join with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental Indenture adversely
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental Indenture.
83
It shall not be necessary for the consent of the Holders of Debentures
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Debentures affected thereby
a notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Debentures then outstanding may
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Debentures. However, without the consent of each Holder
affected (it being understood that Sections 4.13 and 4.14 hereof may be amended
in accordance with the first paragraph of this Section 9.02), an amendment or
waiver may not (with respect to any Debentures held by a non-consenting Holder):
(a) reduce the principal amount of Debentures whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the final stated maturity of
any Debenture or alter or waive any of the provisions with respect to the
redemption of the Debentures under Section 3.07;
(c) reduce the rate of or change the time for payment of interest,
including default interest, on any Debenture;
(d) waive a past Default or past Event of Default in the payment of
principal of or premium, if any, or interest on the Debentures (except a
rescission of acceleration of the Debentures by the Holders of a majority in
aggregate principal amount of the then outstanding Debentures and a waiver of
the payment default that resulted from such acceleration);
(e) make any Debenture payable in money other than that stated in the
Debentures;
(f) except as otherwise provided in this fifth paragraph of Section
9.02 (including clauses (a) through (g) hereof), make any change in the
provisions of this Indenture, the Debentures relating to waivers of past
Defaults or Events of Default or the rights of Holders of Debentures to receive
payments of principal of, premium or Liquidated Damages, if any, or interest on
the Debentures; or
84
(g) make any change in the foregoing amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment or supplement to this Indenture or the Debentures
shall be set forth in an amended or supplemental Indenture that complies with
the TIA as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective (as
determined by the Company), a consent to it by a Holder of a Debenture is a
continuing consent by the Holder of a Debenture and every subsequent Holder of a
Debenture or portion of a Debenture that evidences the same Indebtedness as the
consenting Holder's Debenture, even if notation of the consent is not made on
any Debenture. However, any such Holder of a Debenture or subsequent Holder of
a Debenture may revoke the consent as to its Debenture if the Trustee receives
written notice of revocation before the date the waiver, supplement or amendment
becomes effective (as determined by the Company). An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every
Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF DEBENTURES
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Debenture thereafter authenticated. The Company in
exchange for all Debentures may issue and the Trustee shall authenticate new
Debentures that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Debenture
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article 9 if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
In executing any amended or supplemental indenture, the Trustee shall be
entitled to receive indemnity reasonably satisfactory to it and to receive and
(subject to Section 7.01) shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such amended
or supplemental indenture is authorized or permitted by this Indenture.
85
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by the TIA, the imposed duties shall control.
SECTION 10.02. NOTICES
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address:
If to the Company:
Great Lakes Acquisition Corp.
4 Greenspoint Plaza, Suite 2200
16945 Northchase Drive
Houston, Texas 77060
Telephone No.: (281) 775-4700
Telecopier No.: (281) 775-4722
Attention: President
If to the Trustee:
State Street Bank and Trust Company of California, N.A.
633 West Fifth Street, 12th Floor
Los Angeles, California 90071
Telephone No.: (213) 362-7369
Telecopier No.: (213) 362-7357
Attention: Corporate Trust Department
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; when answered back, if telexed; when receipt
acknowledged, if telecopied;
86
and the next Business Day after timely delivery to the courier, if sent by
overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS OF DEBENTURES WITH OTHER HOLDERS
OF DEBENTURES
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Debentures.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
87
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied; PROVIDED, HOWEVER, that with
respect to matters of fact, an Opinion of Counsel may rely on an Officers'
Certificate or certificate of public officials.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS
No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, shall have any liability for any
Obligations of the Company under the Debentures or this Indenture or for any
claim based on, in respect of, or by reason of, such Obligations or their
creation. Each Holder by accepting a Debenture waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Debentures.
88
SECTION 10.08. GOVERNING LAW
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS INDENTURE AND THE DEBENTURES.
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 10.10. SUCCESSORS
All agreements of the Company in this Indenture and the Debentures
shall bind its successors. All agreements of the Trustee in this Indenture
shall bind its successors.
SECTION 10.11. SEVERABILITY
In case any provision in this Indenture or in the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.12. COUNTERPART ORIGINALS
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
[SIGNATURES ON FOLLOWING PAGE]
89
SIGNATURES
Dated as of May 22, 1998 GREAT LAKES ACQUISITION CORP.
By: /s/ JAMES MCKENZIE
--------------------------------
Name: James McKenzie
Title: President and CEO
Attest:
/s/ ADELE ROBLES
-------------------------------- (SEAL)
Name: Adele Robles
Title: Corporate Secretary
Dated as of May 22, 1998 STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.
By: /s/ SCOTT EMMONS
--------------------------------
Name: Scott Emmons
Title: Assistant Vice President
S-1
EXHIBIT A
(Face of Debenture)
CUSIP No:[ (144A)]
[ (Reg. S)]
[ (ISIN)]
FOR PURPOSES OF SECTIONS 1272 ET SEQ. OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED, (i) WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT DUE AT
MATURITY, THE ISSUE PRICE OF THIS SECURITY IS $530.92 AND THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT IS $1,256.58, (ii) THE ISSUE DATE IS
MAY 22, 1998, AND (iii) THE YIELD TO MATURITY IS 13.125%.
13-1/8% [Series A] [Series B] Senior Subordinated Debentures due 2009
No. $
-----------
GREAT LAKES ACQUISITION CORP.
promises to pay to or registered assigns,
-------------------------
the principal sum of Dollars on May 15, 2009
------------------------
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Dated: GREAT LAKES ACQUISITION CORP.
By:
----------------------------------------
Name:
Title:
(SEAL)
A-1
Certificate of Authentication:
This is one of the [Global] Debentures
referred to in the within-mentioned Indenture:
State Street Bank and Trust Company of California, N.A.
By:
-------------------------------------------
Authorized Signatory
Dated:
A-2
(Back of Debenture)
13-1/8% [Series A] [Series B] Senior Subordinated Debentures due 2009
[THIS GLOBAL DEBENTURE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS DEBENTURE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY
BE REQUIRED PURSUANT TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL
DEBENTURE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL DEBENTURE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL
DEBENTURE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE ISSUER.]
[UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR DEBENTURES IN
DEFINITIVE FORM, THIS DEBENTURE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.](1.)
[THIS DEBENTURE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE
- --------------------
(1.) To be included only on Global Debentures deposited with DTC as
Depositary.
A-3
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER: (1) REPRESENTS THAT
(I) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
ACT)(A "QIB"), (II) IT HAS ACQUIRED THIS DEBENTURE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE ACT OR (III) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE ACT (AN "IAI"), (2) AGREES THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (I) TO THE ISSUER OR ANY OF ITS
SUBSIDIARIES, (II) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (III) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF THE ACT, (IV) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE ACT, (V) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS DEBENTURE (THE
FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF DEBENTURES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE ACT, (VI) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER) OR (VII) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS DEBENTURE OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO
THEM BY RULE 902 OF REGULATION S UNDER THE ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
DEBENTURE IN VIOLATION OF THE FOREGOING.]
A-4
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. INTEREST. Great Lakes Acquisition Corp., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Debenture
at 13-1/8% per annum from May 15, 2003 until maturity and shall pay the
Liquidated Damages, if any, payable pursuant to Section 5 of the Registration
Rights Agreement referred to below. The Company will pay interest and
Liquidated Damages, if any, semi-annually on May 15 and November 15 of each
year, or if any such day is not a Business Day, on the next succeeding Business
Day (each an "Interest Payment Date"). Until May 15, 2003, no cash interest
will accrue or be payable on this Debenture, but the Accreted Value will
increase between May 22, 1998 and May 15, 2003, on a semi-annual bond equivalent
basis using a 360-day year comprised of twelve 30-day months, such that the
Accreted Value shall be equal to the full principal amount at maturity of this
Debenture on May 15, 2003. The Accreted Value shall cease to increase as of May
15, 2003. Beginning on May 15, 2003, interest on the Debentures will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from May 15, 2003; PROVIDED that if there is no existing Default in the
payment of interest, and if after May 15, 2003 this Debenture is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; PROVIDED, FURTHER, that the first Interest Payment Date shall be
November 15, 2003. The Company shall pay interest (including Accrued Bankruptcy
Interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium, if any, from time to time on demand at the rate then in effect; it
shall pay interest (including Accrued Bankruptcy Interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and Liquidated
Damages (without regard to any applicable grace periods) from time to time on
demand at the same rate to the extent lawful. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Debentures
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Debentures at the close of business on the May 1 or
November 1 next preceding the Interest Payment Date, even if such Debentures are
cancelled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture (as defined below) with
respect to defaulted interest; provided that the first Interest Payment Date
shall be November 15, 2003. The Debentures will be payable as to principal,
premium, interest and Liquidated Damages at the office or agency of the Company
maintained for such purpose, or, at the option of the Company, payment of
interest and Liquidated Damages may be made by check mailed to the Holders at
their addresses set forth in the register of Holders, and provided that payment
A-5
by wire transfer of immediately available funds to an account within the United
States of America will be required with respect to principal of and interest,
premium and Liquidated Damages on all Global Debentures. Such payment shall be
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
3. PAYING AGENT AND REGISTRAR. Initially, State Street Bank and Trust
Company of California, N.A., the Trustee under the Indenture, will act as Paying
Agent and Registrar. The Company may change any Paying Agent or Registrar
without notice to any Holder. The Company or any of its Subsidiaries may act in
any such capacity.
4. INDENTURE. The Company issued the Debentures under an Indenture dated
as of May 22, 1998 ("Indenture") among the Company and the Trustee. The terms
of the Debentures include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code Sections 77aaa-77bbbb). The Debentures are subject to all such
terms, and Holders are referred to the Indenture and such Act for a statement of
such terms. The Debentures are obligations of the Company limited to $56.6
million in aggregate principal amount at maturity.
5. OPTIONAL REDEMPTION. The Debentures will be redeemable, at the
Company's option, in whole or in part, at any time or from time to time, on or
after May 15, 2003 and prior to maturity, upon not less than 30 nor more than 60
days' prior notice mailed by first class mail to each Holder's last registered
address, at the following redemption prices (expressed in percentages of
principal amount), plus accrued and unpaid interest and Liquidated Damages, if
any, to the redemption date, if redeemed during the 12-month period commencing
May 15, of the years set forth below:
YEAR PERCENTAGE
2003 . . . . . . . . . . . . . . . . . . . . . 106.563%
2004 . . . . . . . . . . . . . . . . . . . . . 104.375%
2005 . . . . . . . . . . . . . . . . . . . . . 102.188%
2006 and thereafter . . . . . . . . . . . . . . 100.000%
In addition, at any time prior to May 15, 2001, the Company may redeem up
to 35% of the principal amount of the Debentures with the proceeds of one or
more Equity Offerings, at any time or from time to time in part, at a redemption
price (expressed as a percentage of Accreted Value) of 113.125%, plus accrued
and unpaid interest and Liquidated Damages, if any, to the redemption date;
PROVIDED that at least 65% in aggregate principal amount of Debentures remains
outstanding after each such redemption; and PROVIDED FURTHER, that such
redemption occurs within 90 days of the date of the closing of each such Equity
Offering.
A-6
6. MANDATORY REDEMPTION. The Company shall not be required to make
mandatory redemption payments with respect to the Debentures.
7. OFFERS TO PURCHASE.
(a) CHANGE OF CONTROL. The Company must commence, within 35 days of
the occurrence of a Change of Control, and consummate an Offer to Purchase for
all Debentures then outstanding, at a purchase price equal to 101% of the
principal amount (or Accreted Value, if the date of repurchase is prior to May
15, 2003) thereof, plus accrued interest (if any) to the Payment Date.
(b) ASSET SALE. The Company shall not, and shall not permit any of
its Subsidiaries to, engage in an Asset Sale in excess of $1,000,000 unless
(i) the Company (or the Subsidiary, as the case may be) receives consideration
at the time of such Asset Sale at least equal to the fair market value of the
assets or Equity Interests sold or otherwise disposed of, and in the case of a
lease of assets, a lease providing for rent and other conditions which are no
less favorable to the Company (or the Subsidiary, as the case may be) in any
material respect than the then prevailing market conditions (in each case as set
forth in an Officers' Certificate delivered to the Trustee), (ii) at least 75%
of the consideration therefor received by the Company or such Subsidiary is in
the form of cash or Cash Equivalents; PROVIDED that the amount of (x) any
liabilities (as shown on the Company's or such Subsidiary's most recent balance
sheet or in the notes thereto, excluding contingent liabilities and trade
payables) of the Company or any Subsidiary (other than liabilities that are by
their terms subordinated to, or PARI PASSU with, the Debentures) that are
assumed by the transferee of any such assets and (y) any notes or other
obligations received by the Company or any such Subsidiary from such transferee
that are promptly, but in no event more than 30 days after receipt, converted by
the Company or such Subsidiary into cash (to the extent of the cash received),
will be deemed to be cash for purposes of this provision and the receipt of such
cash shall be treated as cash received from an Asset Sale for which such
Debentures or obligations were received.
The Company or any of its Subsidiaries may apply the Net Proceeds
from each Asset Sale, at its option, within 415 days after the consummation
of such Asset Sale, (a) to permanently reduce any Indebtedness (and in the
case of any revolving indebtedness to correspondingly permanently reduce
commitments with respect thereto) of the Company or a Subsidiary of the
Company, or (b) for the acquisition of another business or the acquisition of
other property or assets, in each case, in the same or a Related Business or
(c) for any combination of the foregoing. Pending the final application of
any such Net Proceeds, the Company may temporarily reduce
A-7
Indebtedness of a Subsidiary of the Company or otherwise invest such Net
Proceeds in any manner that is not prohibited by the Indenture. Any Net
Proceeds from Asset Sales that are not applied or invested as provided in the
first sentence of this paragraph will be deemed to constitute "Excess
Proceeds." When the aggregate amount of Excess Proceeds exceeds $5,000,000,
the Company will be required to make an offer to all Holders of Debentures
(an "Asset Sale Offer") and to holders of other Indebtedness of the Company
outstanding ranking on a PARI PASSU basis with the Debentures with provisions
requiring the Company to make an offer (or otherwise redeem or prepay) with
proceeds from the Asset Sales, PRO RATA in proportion to the respective
principal amounts (or accreted values in the case of Indebtedness issued with
an original issue discount) of the Debentures and such other Indebtedness
then outstanding, to purchase (or otherwise redeem or prepay) the maximum
principal amount (or Accreted Value, as applicable) of Debentures and such
other Indebtedness, if any, that may be purchased (or redeemed or prepaid)
out of the Excess Proceeds, at an offer price in cash in an amount equal to
100% of the principal amount (or Accreted Value, if the date of repurchase is
prior to May 15, 2003) thereof plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the date of purchase, in accordance
with the procedures set forth in the Indenture. If the aggregate principal
amount (or Accreted Value, as applicable) of Debentures and such Indebtedness
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee shall select the Debentures and such Indebtedness to be purchased on
a PRO RATA basis. Upon completion of such offer to purchase, the amount of
Excess Proceeds shall be reset at zero.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Debentures are in registered
form without coupons in denominations of $1,000 and integral multiples of
$1,000. The transfer of Debentures may be registered and Debentures may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company need not
exchange or register the transfer of any Debenture or portion of a Debenture
selected for redemption, except for the unredeemed portion of any Debenture
being redeemed in part. Also, it need not exchange or register the transfer of
any Debentures for a period of 15 days before a selection of Debentures to be
redeemed or during the period between a record date and the corresponding
Interest Payment Date.
9. PERSONS DEEMED OWNERS. The registered Holder of a Debenture may be
treated as its owner for all purposes.
10. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Debentures may be amended or supplemented with the
consent of the Holders of at least a majority in principal amount of the then
outstanding Debentures, and
A-8
any existing Default or compliance with any provision of the Indenture or the
Debentures may be waived with the consent of the Holders of a majority in
principal amount of the then outstanding Debentures. Without the consent of
any Holder of a Debenture, the Indenture or the Debentures may be amended or
supplemented to cure any ambiguity, defect or inconsistency, to provide for
uncertificated Debentures in addition to or in place of certificated
Debentures, to provide for the assumption of the Company's obligations to
Holders of the Debentures in case of a merger or consolidation, to make any
change that would provide any additional rights or benefits to the Holders of
the Debentures or that does not adversely affect the legal rights under the
Indenture of any such Holder, to comply with the provisions of the
Depositary, Euroclear or Cedel or the Trustee with respect to the provisions
of this Indenture or the Debentures relating to transfers and exchanges of
Debentures or beneficial interests therein, or to comply with the
requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the TIA.
11. DEFAULTS AND REMEDIES. The Indenture provides that each of the
following constitutes an Event of Default: (a) default in the payment of
principal of (or premium, if any, on) any Note when the same becomes due and
payable at maturity, upon acceleration, redemption or otherwise; (b) default
in the payment of interest on, or Liquidated Damages with respect to, any
Note when the same becomes due and payable, and such default continues for a
period of 30 days; (c) the failure to make or consummate an Asset Sale Offer
in accordance with the provisions of Section 4.13 (Limitation on Asset Sales)
or an Offer to Purchase in accordance with Section 4.14 (Change of Control)
of the Indenture; (d) the Company or any of its Subsidiaries defaults in the
performance of or breaches Section 4.07 (Limitation on Incurrence of
Indebtedness and Issuance of Disqualified Stock) or Section 4.09 (Limitation
on Restricted Payments) and such default or breach continues for a period of
30 days after written notice by the Trustee or the Holders of 25% or more in
aggregate principal amount at maturity of the Debentures; (e) the Company or
any of its Subsidiaries defaults in the performance of or breaches any other
covenant or agreement of the Company or any Subsidiary in the Indenture or
under the Debentures (other than a default specified in clause (a), (b), (c)
or (d) above) and such default or breach continues for a period of 60 days
after written notice by the Trustee or the Holders of 25% or more in
aggregate principal amount at maturity of the Debentures; (f) there occurs
any default under any mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any Indebtedness for
money borrowed by the Company or any of its Subsidiaries or the payment of
which is guaranteed by the Company or any of its Subsidiaries whether such
Indebtedness or guarantee now exists, or is created after the Issue Date,
which default (I) is caused by a failure to pay principal of such
Indebtedness at final stated maturity following the expiration of any grace
period provided in such Indebtedness or (II) results in the acceleration of
such Indebtedness prior to its final
A-9
stated maturity and, in each case, the principal amount of any such
Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a default in the payment of principal
upon final stated maturity which has not been cured and is continuing
following the expiration of any applicable grace period or the maturity of
which has been so accelerated and has not been satisfied, aggregates
$7,500,000 or more; (g) any final judgment or order for the payment of money
shall be rendered against the Company or any Significant Subsidiary in excess
of $7,500,000 in the aggregate for all such final judgments or orders against
all such Persons and shall not be paid or discharged, and there shall be any
period of 60 days following entry of the final judgment or order that causes
the aggregate amount for all such final judgments or orders outstanding and
not paid or discharged against all such Persons to exceed $7,500,000; (h) a
court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company or any Significant Subsidiary in an
involuntary case under any applicable Bankruptcy Law now or hereafter in
effect, (B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any Significant
Subsidiary or for all or substantially all of the property and assets of the
Company or any Significant Subsidiary or (C) the winding up or liquidation of
the affairs of the Company or any Significant Subsidiary and, in each case,
such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or (i) the Company or any Significant Subsidiary (A)
commences a voluntary case under any applicable Bankruptcy Law now or
hereafter in effect, or consents to the entry of an order for relief in an
involuntary case under any such law, (B) consents to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary
or for all or substantially all of the property and assets of the Company or
any Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors.
12. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
13. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Debentures or the
Indenture or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Debenture waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Debentures.
14. AUTHENTICATION. This Debenture shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
A-10
15. 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).
16. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED DEBENTURES. In
addition to the rights provided to Holders of Debentures under the Indenture,
Holders of Transferred Restricted Debentures shall have all the rights set forth
in the Registration Rights Agreement dated as of the date of the Indenture,
among the Company and the Initial Purchasers (the "Registration Rights
Agreement").
17. 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 Debentures and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Debentures
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Great Lakes Acquisition Corp.
4 Greenspoint Plaza, Suite 2200
16945 Northchase Drive
Houston, Texas 77060
Attention: President
Telephone No.: (281) 775-4700
A-11
ASSIGNMENT FORM
To assign this Debenture, fill in the form below: (I) or (we) assign and
transfer this Debenture to
- -----------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
-----------------------------------------------------
to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
- -----------------------------------------------------------------------------
Date:
---------------------
Your Signature:
----------------------------------
(Sign exactly as your name appears
on the face of this Debenture)
Signature Guarantee.
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Debenture purchased by the Company
pursuant to Section 4.13 or 4.14 of the Indenture, check the box below:
/ / Section 4.13 / / Section 4.14
If you want to elect to have only part of the Debenture purchased by the Company
pursuant to Section 4.13 or Section 4.14 of the Indenture, state the amount you
elect to have purchased: $
---------------
Date: Your Signature:
-------------------- -------------------------------
(Sign exactly as your name appears on the
Debenture)
Tax Identification No.:
--------------------
Signature Guarantee.
A-13
SCHEDULE OF EXCHANGES OF INTERESTS
IN THE GLOBAL DEBENTURE*
The following exchanges of a part of this Global Debenture for an interest
in another Global Debentures or for a Definitive Debenture, or exchanges of a
part of another Global Debenture or Definitive Debenture for an interest in this
Global Debenture, have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Debenture authorized officer of
Principal Amount of Principal Amount of following such decrease Trustee or Debenture
Date of Exchange this Global Debenture this Global Debenture (or increase) Custodian
---------------- --------------------- --------------------- ----------------------- ---------------------
- --------------------------------
* This should be included only if the Debenture is issued in global form.
A-14
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Great Lakes Acquisition Corp.
4 Greenspoint Plaza, Suite 2200
16945 Northchase Drive
Houston, Texas 77060
Attention: President
State Street Bank and Trust Company of California, N.A.
633 West Fifth Street, 12th Floor
Los Angeles, California 90071
Attention: Corporate Trust Group
Re: 13-1/8% Senior Subordinated Debentures due 2009
Dear Sirs:
Reference is hereby made to the Indenture, dated as of May 22, 1998 (the
"Indenture"), among Great Lakes Acquisition Corp., as issuer (the "Company"),
and State Street Bank and Trust Company of California, N.A., as trustee.
Capitalized terms used but not defined herein shall have the meanings given to
them in the Indenture. , (the "Transferor") owns and proposes to
---------------
transfer the Debenture[s] or interest in such Debenture[s] specified in Annex A
hereto, in the principal amount at maturity of $ in such Debenture[s]
-----------
or interests (the "Transfer"), to (the "Transferee"), as further
------------
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL DEBENTURE OR A DEFINITIVE DEBENTURE PURSUANT TO
RULE 144A. The Transfer is being effected pursuant to and in accordance with
Rule 144A under the United States Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, the Transferor hereby further certifies
that the beneficial interest or Definitive Debenture is being transferred to
a Person that the Transferor reasonably believed and believes is purchasing
the beneficial interest or Definitive Debenture for its own account, or for
one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer"
B-1
within the meaning of Rule 144A in a transaction meeting the requirements of
Rule 144A and such Transfer is in compliance with any applicable blue sky
securities laws of any State of the United States. Upon consummation of the
proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Debenture will be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the 144A
Global Debenture and/or the Definitive Debenture and in the Indenture and the
Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL INTEREST IN THE
REGULATION S GLOBAL DEBENTURE OR A DEFINITIVE DEBENTURE PURSUANT TO REGULATION
S. The Transfer is being effected pursuant to and in accordance with Rule 903
or Rule 904 under the Securities Act and, accordingly, the Transferor hereby
further certifies that (i) the Transfer is not being made to a person in the
United States and (x) at the time the buy order was originated, the Transferee
was outside the United States or such Transferor and any Person acting on its
behalf reasonably believed and believes that the Transferee was outside the
United States or (y) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S under the Securities Act, (iii) the transaction is not
part of a plan or scheme to evade the registration requirements of the
Securities Act and (iv) if the proposed transfer is being made prior to the
expiration of the Restricted Period, the transfer is not being made to a U.S.
Person or for the account or benefit of a U.S. Person (other than a Initial
Purchaser) and the interest transferred will be held immediately thereafter
through Euroclear or Cedel. Upon consummation of the proposed transfer in
accordance with the terms of the Indenture, the transferred beneficial interest
or Definitive Debenture will be subject to the restrictions on Transfer
enumerated in the Private Placement Legend printed on the Regulation S Global
Debenture and/or the Definitive Debenture and in the Indenture and the
Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN A DEFINITIVE DEBENTURE PURSUANT TO ANY PROVISION OF THE SECURITIES
ACT OTHER THAN RULE 144A OR REGULATION S. The Transfer is being effected in
compliance with the transfer restrictions applicable to beneficial interests in
Restricted Global Debentures and Restricted Definitive Debentures and pursuant
to and in accordance with the Securities Act and any applicable blue sky
securities laws of any State of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) / / Such Transfer is being effected pursuant to and in accordance
with Rule 144 under the Securities Act; or
B-2
(b) / / Such Transfer is being effected to the Company or a subsidiary
thereof; or
(c) / / Such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act; or
(d) / / such Transfer is being effected to an Institutional Accredited
Investor and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A, Rule 144 or Rule 904, and the Transferor
hereby further certifies that it has not engaged in any general solicitation
within the meaning of Regulation D under the Securities Act and the Transfer
complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Debenture or Restricted Definitive Debentures and the
requirements of the exemption claimed, which certification is supported by (1) a
certificate executed by the Transferee in a form of Exhibit D to the Indenture
and (2) if such Transfer is in respect of a principal amount of Debentures at
the time of transfer of less than $250,000, an Opinion of Counsel provided by
the Transferor or the Transferee (a copy of which the Transferor has attached to
this certification and provided to the Company, which has confirmed its
acceptability), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the Definitive Debenture will be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Definitive Debentures and in the Indenture and the Securities Act.
4. / / Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Debenture or of an Unrestricted Definitive Debenture.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Debenture will no longer be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Debentures, on
Restricted Definitive Debentures and in the Indenture.
B-3
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The Transfer
is being effected pursuant to and in accordance with Rule 903 or Rule 904 under
the Securities Act and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Debenture will no longer be subject to the restrictions
on transfer enumerated in the Private Placement Legend printed on the Restricted
Global Debentures, on Restricted Definitive Debentures and in the Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Debenture will not be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Global Debentures or Restricted Definitive Debentures and in the Indenture.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
--------------------------------
[Insert Name of Transferor]
By:
-----------------------------
Name:
Title:
Dated:
----------------------
B-4
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Debenture (CUSIP ), or
(b) / / a Restricted Definitive Debenture.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Debenture (CUSIP ), or
(ii) / / Regulation S Global Debenture (CUSIP ), or
(iii) / / Unrestricted Global Debenture (CUSIP ); or
(b) / / a Restricted Definitive Debenture; or
(c) / / an Unrestricted Definitive Debenture,
in accordance with the terms of the Indenture.
B-5
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Great Lakes Acquisition Corp.
4 Greenspoint Plaza, Suite 2200
16945 Northchase Drive
Houston, Texas 77060
Attention: President
State Street Bank and Trust Company of California, N.A.
633 West Fifth Street, 12th Floor
Los Angeles, California 90071
Attention: Corporate Trust Group
Re: 13-1/8% SENIOR SUBORDINATED DEBENTURES DUE 2009
Dear Sirs:
Reference is hereby made to the Indenture, dated as of May 22, 1998
(the "Indenture"), between Great Lakes Acquisition Corp., as issuer (the
"Company"), and State Street Bank and Trust Company of California, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
, (the "Owner") owns and proposes to exchange the
------------------
Debenture[s] or interest in such Debenture[s] specified herein, in the principal
amount at maturity of $ in such Debenture[s] or interests (the
-------------
"Exchange"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE DEBENTURES OR BENEFICIAL INTERESTS
IN A RESTRICTED GLOBAL DEBENTURE FOR UNRESTRICTED DEFINITIVE DEBENTURES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL DEBENTURE.
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL DEBENTURE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
DEBENTURE. In connection with the Exchange of the Owner's beneficial
interest in a Restricted Global Debenture for a beneficial interest in an
Unrestricted Global Debenture in an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Global Debentures and
C-1
pursuant to and in accordance with the United States Securities Act of 1933,
as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required
in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Debenture is being acquired in
compliance with any applicable blue sky securities laws of any State of the
United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL DEBENTURE TO UNRESTRICTED DEFINITIVE DEBENTURE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Debenture for an Unrestricted Definitive Debenture, the Owner hereby certifies
(i) the Definitive Debenture is being acquired for the Owner's own account
without transfer, (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Debentures and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Definitive Debenture is being acquired in compliance with any applicable blue
sky securities laws of any State of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE DEBENTURE TO
BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL DEBENTURE. In connection with the
Owner's Exchange of a Restricted Definitive Debenture for a beneficial interest
in an Unrestricted Global Debenture, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Debentures and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer
contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act and (iv) the beneficial
interest is being acquired in compliance with any applicable blue sky securities
laws of any State of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE DEBENTURE TO
UNRESTRICTED DEFINITIVE DEBENTURE. In connection with the Owner's Exchange of a
Restricted Definitive Debenture for an Unrestricted Definitive Debenture, the
Owner hereby certifies (i) the Unrestricted Definitive Debenture is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Debentures and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Unrestricted Definitive
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Debenture is being acquired in compliance with any applicable blue sky
securities laws of any State of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE DEBENTURES OR BENEFICIAL INTERESTS
IN RESTRICTED GLOBAL DEBENTURES FOR RESTRICTED DEFINITIVE DEBENTURES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL DEBENTURES
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL DEBENTURE TO RESTRICTED DEFINITIVE DEBENTURE. In connection
with the Exchange of the Owner's beneficial interest in a Restricted Global
Debenture for a Restricted Definitive Debenture with an equal principal amount,
the Owner hereby certifies that the Restricted Definitive Debenture is being
acquired for the Owner's own account without transfer. Upon consummation of the
proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Debenture issued will continue to be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the Restricted
Definitive Debenture and in the Indenture and the Securities Act.
(b) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE DEBENTURE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL DEBENTURE. In connection with the
Exchange of the Owner's Restricted Definitive Debenture for a beneficial
interest in the: [CHECK ONE] / / 144A Global Debenture or / / Regulation S
Global Debenture with an equal principal amount, the Owner hereby certifies (i)
the beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Debentures and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any State of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Private Placement Legend printed on the relevant
Restricted Global Debenture and in the Indenture and the Securities Act.
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This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
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[Insert Name of Owner]
By:
----------------------------
Name:
Title:
Dated:
-----------------------
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EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Great Lakes Acquisition Corp.
4 Greenspoint Plaza, Suite 2200
16945 Northchase Drive
Houston, Texas 77060
Attention: President
State Street Bank and Trust Company of California, N.A.
633 West Fifth Street, 12th Floor
Los Angeles, California 90071
Attention: Corporate Trust Group
Re: 13-1/8% SENIOR SUBORDINATED DEBENTURES DUE 2009
Dear Sirs:
Reference is hereby made to the Indenture, dated as of May 22, 1998
(the "Indenture"), between Great Lakes Acquisition Corp., as issuer (the
"Company"), and State Street Bank and Trust Company of California, N.A., as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $ aggregate
------------
principal amount at maturity of: (a) a beneficial interest in a Global
Debenture, or (b) a Definitive Debenture, we confirm that:
1. We understand that any subsequent transfer of the Debentures or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Debentures or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Debentures have not been
registered under the Securities Act, and that the Debentures and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for
which we are acting as hereinafter stated, that if we should sell the
Debentures or any interest therein, we will do so only
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(A) to the Company or any subsidiary thereof, (B) in accordance with Rule
144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (c) to an institutional "accredited investor" (as defined
below) that, prior to such transfer, furnishes (or has furnished on its
behalf by a U.S. broker-dealer) to you and to the Company a signed letter
substantially in the form of this letter and, if the proposed transfer is in
respect of an aggregate principal amount at maturity of Debentures of less
than $250,000, an Opinion of Counsel in form reasonably acceptable to the
Company to the effect that such transfer is in compliance with the Securities
Act, (D) outside the United States in accordance with Rule 904 of Regulation
S under the Securities Act, (E) pursuant to the provisions of Rule 144 under
the Securities Act or (F) pursuant to an effective registration statement
under the Securities Act, and we further agree to provide to any person
purchasing the Definitive Debenture from us in a transaction meeting the
requirements of clauses (A) through (E) of this paragraph a notice advising
such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Debentures or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Debentures purchased
by us will bear a legend to the foregoing effect. We further understand that
any subsequent transfer by us of the Debentures or beneficial interest therein
acquired by us must be effected through one of the Initial Purchasers.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and 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 Debentures, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Debentures or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company 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.
- -------------------------------------------
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[Insert Name of Accredited Investor]
By: ------------------------------------
Name:
Title:
Dated: ,
- -------------------------------- -----
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