EXHIBIT 4.1
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FASTENTECH, INC.,
as Issuer,
The GUARANTORS named herein,
as Guarantors,
and
BNY MIDWEST TRUST COMPANY,
as Trustee
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INDENTURE
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Dated as of May 1, 2003
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11 1/2% Senior Subordinated Notes due 2011
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1).................................................................. 7.10
(a)(2).................................................................. 7.10
(a)(3).................................................................. N.A.
(a)(4).................................................................. N.A.
(a)(5).................................................................. 7.08; 7.10
(b)..................................................................... 7.08; 7.10; 12.02
(c)..................................................................... N.A.
311(a)..................................................................... 7.11
(b)..................................................................... 7.11
(c)..................................................................... N.A.
312(a)..................................................................... 2.05
(b)..................................................................... 12.03
(c)..................................................................... 12.03
313(a)..................................................................... 7.06
(b)(1).................................................................. 7.06
(b)(2).................................................................. 7.06
(c)..................................................................... 7.06; 12.02
(d)..................................................................... 7.06
314(a)..................................................................... 4.09; 4.19; 12.02
(b)..................................................................... N.A.
(c)(1).................................................................. 7.02; 12.04; 12.05
(c)(2).................................................................. 7.02; 12.04; 12.05
(c)(3).................................................................. N.A.
(d)..................................................................... N.A.
(e)..................................................................... 12.05
(f)..................................................................... N.A.
315(a)..................................................................... 7.01(b)
(b)..................................................................... 7.05
(c)..................................................................... 7.01
(d)..................................................................... 6.05; 7.01(c)
(e)..................................................................... 6.11
316(a)(last sentence)...................................................... 2.09
(a)(1)(A)............................................................... 6.02
(a)(1)(B)............................................................... 6.04
(a)(2).................................................................. 9.02
(b)..................................................................... 6.07
(c)..................................................................... 9.05
317(a)(1).................................................................. 6.08
(a)(2).................................................................. 6.09
(b)..................................................................... 2.04
318(a)..................................................................... 12.01
(c)..................................................................... 12.01
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N.A. means Not Applicable
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Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.............................................................................1
SECTION 1.02. Other Definitions......................................................................33
SECTION 1.03. Incorporation by Reference of TIA......................................................34
SECTION 1.04. Rules of Construction..................................................................35
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating........................................................................35
SECTION 2.02. Execution and Authentication...........................................................36
SECTION 2.03. Registrar and Paying Agent.............................................................37
SECTION 2.04. Paying Agent To Hold Assets in Trust...................................................38
SECTION 2.05. Holder Lists...........................................................................38
SECTION 2.06. Transfer and Exchange..................................................................38
SECTION 2.07. Replacement Notes......................................................................39
SECTION 2.08. Outstanding Notes......................................................................39
SECTION 2.09. Treasury Notes.........................................................................40
SECTION 2.10. Temporary Notes........................................................................40
SECTION 2.11. Cancellation...........................................................................40
SECTION 2.12. Defaulted Interest.....................................................................40
SECTION 2.13. CUSIP Number...........................................................................41
SECTION 2.14. Deposit of Moneys......................................................................41
SECTION 2.15. Book-Entry Provisions for Global Notes.................................................41
SECTION 2.16. Special Transfer Provisions............................................................43
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.....................................................................46
SECTION 3.02. Selection of Notes To Be Redeemed......................................................46
SECTION 3.03. Notice of Redemption...................................................................46
SECTION 3.04. Effect of Notice of Redemption.........................................................47
SECTION 3.05. Deposit of Redemption Price............................................................48
SECTION 3.06. Notes Redeemed in Part.................................................................48
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.......................................................................48
SECTION 4.02. Maintenance of Office or Agency........................................................48
SECTION 4.03. Corporate Existence....................................................................49
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SECTION 4.04. Payment of Taxes and Other Claims......................................................49
SECTION 4.05. Maintenance of Properties and Insurance................................................50
SECTION 4.06. Compliance Certificate; Notice of Default..............................................50
SECTION 4.07. Compliance with Laws...................................................................51
SECTION 4.08. Waiver of Stay, Extension or Usury Laws................................................51
SECTION 4.09. Change of Control......................................................................51
SECTION 4.10. Limitation on Indebtedness.............................................................53
SECTION 4.11. Limitation on Restricted Payments......................................................57
SECTION 4.12. Limitation on Liens....................................................................62
SECTION 4.13. Limitation on Sales of Assets and Subsidiary Stock.....................................62
SECTION 4.14. Limitation on Affiliate Transactions...................................................66
SECTION 4.15. Limitation on Restrictions on Distributions from Restricted Subsidiaries...............68
SECTION 4.16. Future Guarantors......................................................................70
SECTION 4.17. Limitations on Layering Indebtedness...................................................70
SECTION 4.18. SEC Reports............................................................................70
SECTION 4.19. Limitation on Sales of Capital Stock of Restricted Subsidiaries........................71
SECTION 4.20. Limitation on Lines of Business........................................................71
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation, Etc.............................................................72
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default......................................................................73
SECTION 6.02. Acceleration...........................................................................76
SECTION 6.03. Other Remedies.........................................................................77
SECTION 6.04. Waiver of Past Defaults................................................................77
SECTION 6.05. Control by Majority....................................................................78
SECTION 6.06. Limitation on Suits....................................................................78
SECTION 6.07. Rights of Holders To Receive Payment...................................................78
SECTION 6.08. Collection Suit by Trustee.............................................................79
SECTION 6.09. Trustee May File Proofs of Claim.......................................................79
SECTION 6.10. Priorities.............................................................................79
SECTION 6.11. Undertaking for Costs..................................................................80
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee......................................................................80
SECTION 7.02. Rights of Trustee......................................................................81
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SECTION 7.03. Individual Rights of Trustee...........................................................83
SECTION 7.04. Trustee's Disclaimer...................................................................83
SECTION 7.05. Notice of Default......................................................................83
SECTION 7.06. Reports by Trustee to Holders..........................................................83
SECTION 7.07. Compensation and Indemnity.............................................................84
SECTION 7.08. Replacement of Trustee.................................................................85
SECTION 7.09. Successor Trustee by Merger, Etc.......................................................86
SECTION 7.10. Eligibility; Disqualification..........................................................86
SECTION 7.11. Preferential Collection of Claims Against the Company..................................86
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations...............................................87
SECTION 8.02. Legal Defeasance and Covenant Defeasance...............................................88
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance..................................89
SECTION 8.04. Application of Trust Money.............................................................91
SECTION 8.05. Repayment to the Company...............................................................91
SECTION 8.06. Reinstatement..........................................................................92
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.............................................................92
SECTION 9.02. With Consent of Holders................................................................93
SECTION 9.03. Effect on Senior Debt..................................................................94
SECTION 9.04. Compliance with TIA....................................................................94
SECTION 9.05. Revocation and Effect of Consents......................................................94
SECTION 9.06. Notation on or Exchange of Notes.......................................................95
SECTION 9.07. Trustee To Sign Amendments, Etc........................................................95
ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinated to Senior Debt......................................................96
SECTION 10.02. Suspension of Payment When Senior Debt Is in Default...................................96
SECTION 10.03. Notes Subordinated to Prior Payment of All Senior Debt on Dissolution,
Liquidation or Reorganization of the Company........................................98
SECTION 10.04. Payments May Be Made Prior to Dissolution..............................................99
SECTION 10.05. Holders To Be Subrogated to Rights of Holders of Senior Debt..........................100
SECTION 10.06. Obligations of the Company Unconditional..............................................100
SECTION 10.07. Notice to Trustee.....................................................................100
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent........................101
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SECTION 10.09. Trustee's Relation to Senior Debt.....................................................101
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Debt.............................................................102
SECTION 10.11. Noteholders Authorize Trustee To Effectuate Subordination of Notes....................102
SECTION 10.12. This Article Ten Not To Prevent Events of Default.....................................103
SECTION 10.13. Trustee's Compensation Not Prejudiced.................................................103
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01. Unconditional Guarantee...............................................................103
SECTION 11.02. Subordination of Subsidiary Guarantee.................................................104
SECTION 11.03. Limitation on Guarantor Liability.....................................................105
SECTION 11.04. Execution and Delivery of Subsidiary Guarantee........................................105
SECTION 11.05. Release of a Guarantor................................................................106
SECTION 11.06. Waiver of Subrogation.................................................................106
SECTION 11.07. Immediate Payment.....................................................................107
SECTION 11.08. No Set-Off............................................................................107
SECTION 11.09. Guarantee Obligations Absolute........................................................107
SECTION 11.10. Guarantee Obligations Continuing......................................................107
SECTION 11.11. Guarantee Obligations Not Reduced.....................................................108
SECTION 11.12. Guarantee Obligations Reinstated......................................................108
SECTION 11.13. Guarantee Obligations Not Affected....................................................108
SECTION 11.14. Waiver................................................................................110
SECTION 11.15. No Obligation To Take Action Against the Company......................................110
SECTION 11.16. Dealing with the Company and Others...................................................110
SECTION 11.17. Default and Enforcement...............................................................111
SECTION 11.18. Amendment, Etc........................................................................111
SECTION 11.19. Acknowledgment........................................................................111
SECTION 11.20. Costs and Expenses....................................................................111
SECTION 11.21. No Merger or Waiver; Cumulative Remedies..............................................111
SECTION 11.22. Survival of Guarantee Obligations.....................................................111
SECTION 11.23. Guarantee in Addition to Other Guarantee Obligations..................................112
SECTION 11.24. Severability..........................................................................112
SECTION 11.25. Successors and Assigns................................................................112
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls..........................................................................112
SECTION 12.02. Notices...............................................................................112
SECTION 12.03. Communications by Holders with Other Holders..........................................114
SECTION 12.04. Certificate and Opinion as to Conditions Precedent....................................114
SECTION 12.05. Statements Required in Certificate or Opinion.........................................114
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SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.............................................115
SECTION 12.07. Legal Holidays........................................................................115
SECTION 12.08. Governing Law.........................................................................115
SECTION 12.09. No Adverse Interpretation of Other Agreements.........................................115
SECTION 12.10. No Recourse Against Others............................................................115
SECTION 12.11. Successors............................................................................115
SECTION 12.12. Duplicate Originals...................................................................116
SECTION 12.13. Severability..........................................................................116
Signatures............................................................................................S-1
Exhibit A - Form of Note
Exhibit B - Form of Legends
Exhibit C - Form of Certificate To Be Delivered in Connection with
Transfers to Non-QIB Accredited Investors
Exhibit D - Form of Certificate To Be Delivered in Connection with
Transfers Pursuant to Regulation S
Exhibit E - Form of Notation of Subsidiary Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be part of
the Indenture.
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INDENTURE dated as of May 1, 2003 among FASTENTECH, INC., a Delaware
corporation (the "Company"), as issuer, and each of the Guarantors named herein,
as Guarantors, and BNY Midwest Trust Company, an Illinois trust company, as
Trustee (the "Trustee").
The Company has duly authorized the creation of an issue of 11 1/2%
Senior Subordinated Notes due 2011 and, to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture. All things
necessary to make the Notes, when duly issued and executed by the Company and
authenticated and delivered hereunder, the valid and binding obligations of the
Company and to make this Indenture a valid and binding agreement of the Company
have been done.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
Set forth below are certain defined terms used in this Indenture.
"Acquired Indebtedness" means (1) with respect to any Person that
becomes a Restricted Subsidiary after the Issue Date, Indebtedness of such
Person and its Subsidiaries existing at the time such Person becomes a
Restricted Subsidiary that was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary and (2) with
respect to the Company or any Restricted Subsidiary, any Indebtedness of a
Person (other than the Company or a Restricted Subsidiary) existing at the time
such Person is merged with or into the Company or a Restricted Subsidiary, or
Indebtedness expressly assumed by the Company or any Restricted Subsidiary in
connection with the acquisition of an asset or assets from another Person, which
Indebtedness was not, in any case, incurred by such other Person in connection
with, or in contemplation of, such merger or acquisition.
"Additional Assets" means:
(1) any assets (other than Indebtedness and securities) to be used by
the Company or a Restricted Subsidiary of the Company in a Related
Business;
(2) the Capital Stock of a Person that becomes a Restricted Subsidiary
as a result of the acquisition of such Capital Stock by the Company or a
Restricted Subsidiary of the Company; or
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(3) Capital Stock constituting a minority interest in any Person that
at such time is a Restricted Subsidiary of the Company;
provided, however, that, in the case of clauses (2) and (3) above, such
Restricted Subsidiary is primarily engaged in a Related Business.
"Additional Interest" means any additional interest payable on the
Notes pursuant to the terms of the Registration Rights Agreement.
"Advisory Agreement" means the Advisory Agreement, dated as of May 1,
2003, by and among the Company, certain of its Subsidiaries from time to time
and Citicorp Venture Capital Ltd., as in effect on the Issue Date.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such specified Person; provided, however, that no lender under the
Credit Agreement shall be treated as an Affiliate solely by virtue of the
exercise of its rights and remedies thereunder. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing; provided, however, that beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"amend" means amend, modify, supplement, restate or amend and restate,
including successively, and "amending" and "amended" have correlative meanings.
"asset" means any asset or property, whether real, personal or mixed,
tangible or intangible.
"Asset Disposition" means any direct or indirect sale, lease (other
than an operating lease entered into in the ordinary course of business),
transfer, issuance or other disposition, or a series of related sales, leases,
transfers, issuances or dispositions that are part of a common plan, of shares
of Capital Stock of a Subsidiary (other than directors' qualifying shares),
property or other assets (each referred to for the purposes of this definition
as a "disposition") by the Company or any Restricted Subsidiary, including any
disposition by means of a merger, consolidation or similar transaction.
Notwithstanding the preceding, the following items shall not be deemed
to be Asset Dispositions:
(1) a disposition by a Restricted Subsidiary to the Company or by the
Company or a Restricted Subsidiary to a Wholly-Owned Subsidiary;
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(2) the sale of Cash Equivalents in the ordinary course of business;
(3) dispositions of inventory in the ordinary course of business;
(4) dispositions of obsolete or worn-out equipment or equipment that
is no longer useful in the conduct of the business of the Company and the
Restricted Subsidiaries and that is disposed of in each case in the
ordinary course of business;
(5) transactions permitted under Article V;
(6) an issuance of Capital Stock by a Restricted Subsidiary to the
Company or to a Wholly-Owned Subsidiary;
(7) for purposes of Section 4.13 only, the making of a Permitted
Investment or a disposition subject to and permitted by Section 4.11;
(8) dispositions of assets with an aggregate fair market value since
the Issue Date of less than $1,000,000;
(9) dispositions in connection with Permitted Liens; and
(10) sales of accounts receivable and related assets of the type
described in the definition of "Permitted Securitization Transaction" to a
Securitization Entity for the fair market value thereof and transfers of
accounts receivable and related assets of the type described in the
definition of "Permitted Securitization Transaction" (or a fractional
undivided interest therein) by a Securitization Entity in a Permitted
Securitization Transaction.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness or Preferred Stock, the quotient obtained by dividing (1) the
sum of the products of the numbers of years from the date of determination to
the dates of each successive scheduled principal payment of such Indebtedness or
redemption or similar payment with respect to such Preferred Stock multiplied by
the amount of such payment by (2) the sum of all such payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors.
"Board of Directors" means (1) in the case of a corporation, the board
of directors and (2) in all other cases, a body performing substantially similar
functions as a board of directors.
"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly
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adopted by the Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday or any
other day on which banking institutions in the City of New York and Chicago are
required or authorized by law or other governmental action to be closed.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"Capitalized Lease Obligations" means an obligation that is required
to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP, and the amount of Indebtedness
represented by such obligation will be the capitalized amount of such obligation
at the time any determination thereof is to be made as determined in accordance
with GAAP.
"Cash Equivalents" means:
(1) securities issued or directly and fully guaranteed or insured by
the government or any agency or instrumentality (provided, however, that
the full faith and credit of the United States is pledged in support
thereof), having maturities of not more than one year from the date of
acquisition;
(2) marketable general obligations issued by any state of the United
States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within one year from the date of
acquisition (provided, however, that the full faith and credit of the
United States is pledged in support thereof) and, at the time of
acquisition thereof, having a credit rating of at least "A" or the
equivalent thereof by S&P, or "A" or the equivalent thereof by Moody's;
(3) certificates of deposit, time deposits, eurodollar time deposits,
overnight bank deposits or bankers' acceptances having maturities of not
more than one year from the date of acquisition thereof issued by any
commercial bank, the long-term debt of which is rated at the time of
acquisition thereof at least "A" or the equivalent thereof by S&P, or "A"
or the equivalent thereof by Moody's, and having combined capital and
surplus in excess of $500,000,000;
(4) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (1), (2) or (3)
entered into with any bank meeting the qualifications specified in clause
(3) above;
(5) commercial paper rated at the time of acquisition thereof at least
"A-2" or the equivalent thereof by S&P or "P-2" or the equivalent thereof
by Moody's or car-
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rying an equivalent rating by a nationally recognized rating agency, if
both of the two named rating agencies cease publishing ratings of
investments, and in any case maturing within one year after the date of
acquisition thereof; and
(6) interests in any investment company or money market fund which
invests solely in instruments of the type specified in clauses (1) through
(5) above.
"Change of Control" means:
(1) any "Person" or "group" of related Persons (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), other than one or more
Permitted Holders, is or becomes the beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act, except that such Person or group
shall be deemed to have "beneficial ownership" of all shares that any such
Person or group has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
50% or more of the total voting power (including by the terms of the
organizational documents governing such shares, any agreement or otherwise)
of the Voting Stock of the Company (or its successor by merger,
consolidation or purchase of all or substantially all of its assets) (for
the purposes of this clause, such Person or group shall be deemed to
beneficially own any Voting Stock of the Company held by a parent entity,
if such Person or group "beneficially owns," directly or indirectly, more
than 50% of the voting power (including by the terms of the organizational
documents governing such shares, agreement or otherwise) of the Voting
Stock of such parent entity); or
(2) the first day on which a majority of the members of the Board of
Directors of the Company are not Continuing Directors; or
(3) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company and
the Restricted Subsidiaries, taken as a whole, to any "Person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) other than a
Permitted Holder; or
(4) the adoption by the stockholders of the Company of a plan or
proposal for the liquidation or dissolution of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"Consolidated Coverage Ratio" means, with respect to any Person, as of
any date of determination, with respect to any Person, the ratio of (x) the
aggregate amount of Consolidated EBITDA of such Person for the period of the
most recent four consecutive fiscal quarters ending prior to the date of such
determination for which internal financial
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statements are in existence to (y) Consolidated Interest Expense for such four
fiscal quarters; provided, however, that:
(1) if the Company or any Restricted Subsidiary:
(a) has Incurred any Indebtedness since the beginning of such
period that remains outstanding on such date of determination or if
the transaction giving rise to the need to calculate the Consolidated
Coverage Ratio is an Incurrence of Indebtedness, Consolidated EBITDA
and Consolidated Interest Expense for such period will be calculated
after giving effect on a pro forma basis to such Indebtedness as if
such Indebtedness had been Incurred on the first day of such period
(except that in making such computation, the amount of Indebtedness
under any revolving credit facility, including, without limitation,
the Credit Agreement, outstanding on the date of such calculation will
be computed based on (i) the average daily balance of such
Indebtedness during such four fiscal quarters or such shorter period
for which such facility was outstanding or (ii) if such facility was
created after the end of such four fiscal quarters, the average daily
balance of such Indebtedness during the period from the date of
creation of such facility to the date of such calculation) and the
discharge of any other Indebtedness repaid, repurchased, defeased or
otherwise discharged with the proceeds of such new Indebtedness as if
such discharge had occurred on the first day of such period; or
(b) has repaid, repurchased, defeased or otherwise discharged any
Indebtedness since the beginning of the period that is no longer
outstanding on such date of determination, or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio
involves a discharge of Indebtedness (in each case other than
Indebtedness incurred under any revolving credit facility, including,
without limitation, the Credit Agreement, unless such Indebtedness has
been permanently repaid and the related commitment terminated),
Consolidated EBITDA and Consolidated Interest Expense for such period
will be calculated after giving effect on a pro forma basis to such
discharge of such Indebtedness, including with the proceeds of such
new Indebtedness, as if such discharge had occurred on the first day
of such period;
(2) if since the beginning of such period the Company or any
Restricted Subsidiary has made any Asset Disposition or if the transaction
giving rise to the need to calculate the Consolidated Coverage Ratio is an
Asset Disposition:
(a) the Consolidated EBITDA for such period will be reduced by an
amount equal to the Consolidated EBITDA (if positive) directly
attributable to the assets which are the subject of such Asset
Disposition for such period or
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increased by an amount equal to the Consolidated EBITDA (if negative)
directly attributable thereto for such period; and
(b) Consolidated Interest Expense for such period will be reduced
by an amount equal to the Consolidated Interest Expense directly
attributable to any Indebtedness of the Company or any Restricted
Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and the continuing Restricted Subsidiaries in
connection with such Asset Disposition for such period (or, if the
Capital Stock of any Restricted Subsidiary is sold, the Consolidated
Interest Expense for such period directly attributable to the
Indebtedness of such Restricted Subsidiary to the extent the Company
and its continuing Restricted Subsidiaries are no longer liable for
such Indebtedness after such sale);
(3) if, since the beginning of such period, the Company or any
Restricted Subsidiary (by merger or otherwise) will have made an Investment
in any Restricted Subsidiary (or any Person which becomes a Restricted
Subsidiary or is merged with or into the Company) or an acquisition of
assets, including any acquisition of assets occurring in connection with a
transaction causing a calculation to be made hereunder, which constitutes
all or substantially all of an operating unit, division or line of
business, Consolidated EBITDA and Consolidated Interest Expense for such
period will be calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or acquisition
occurred on the first day of such period; and
(4) if, since the beginning of such period, any Person that
subsequently became a Restricted Subsidiary or was merged with or into the
Company or any Restricted Subsidiary since the beginning of such period
will have made any Asset Disposition or any Investment or acquisition of
assets that would have required an adjustment pursuant to clause (2) or (3)
above if made by the Company or a Restricted Subsidiary during such period,
Consolidated EBITDA and Consolidated Interest Expense for such period will
be calculated after giving pro forma effect thereto as if such Asset
Disposition or Investment or acquisition of assets occurred on the first
day of such period.
For purposes of this definition, whenever pro forma effect is to be
given to any calculation under this definition, the pro forma calculations will
be determined in good faith by a responsible financial or accounting officer of
the Company (including pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Securities Act). If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness will be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months).
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"Consolidated EBITDA" means, without duplication:
(1) the Consolidated Net Income for such period; plus
(2) the following, without duplication, to the extent deducted in
calculating such Consolidated Net Income:
(a) Consolidated Interest Expense;
(b) Consolidated Income Taxes;
(c) consolidated depreciation expense of the Company and its
consolidated Restricted Subsidiaries determined in accordance with
GAAP;
(d) consolidated amortization of intangibles of the Company and
its consolidated Restricted Subsidiaries determined in accordance with
GAAP; and
(e) other non-cash charges reducing Consolidated Net Income
(excluding any such non-cash charge to the extent it represents an
accrual of or reserve for cash charges in any future period, or
amortization of a prepaid cash expense that was paid in a prior period
not included in the calculation); minus
(3) the aggregate amount of all non-cash charges, determined on a
consolidated basis, to the extent such items increased Consolidated Net
Income for such period.
Notwithstanding the preceding sentence, amounts under clauses (2)(b) through (e)
and clause (3), to the extent relating to amounts of a Restricted Subsidiary of
a Person, will be added to or subtracted from Consolidated Net Income to compute
Consolidated EBITDA of such Person only to the extent (and in the same
proportion) that the net income (loss) of such Restricted Subsidiary was
included in calculating the Consolidated Net Income of such Person and, to the
extent the amounts set forth in clauses (2)(b) through (e) are in excess of
those necessary to offset a net loss of such Restricted Subsidiary or if such
Restricted Subsidiary has net income for such period included in Consolidated
Net Income, only if a corresponding amount would be permitted at the date of
determination to be dividended to the Company by such Restricted Subsidiary
without prior approval (that has not been obtained), pursuant to the terms of
its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to such Restricted
Subsidiary or its stockholders.
"Consolidated Income Taxes" means, with respect to any Person for any
period, taxes imposed upon such Person or other payments required to be made by
such Person by any governmental authority which taxes or other payments are
calculated by reference to the income or profits of such Person or such Person
and its Restricted Subsidiar-
-9-
ies (to the extent such income or profits were included in computing
Consolidated Net Income for such period), regardless of whether such taxes or
payments are required to be remitted to any governmental authority.
"Consolidated Interest Expense" means, for any period, the total
interest expense of the Company and its consolidated Restricted Subsidiaries
determined in accordance with GAAP, whether paid or accrued, plus, to the extent
not included in such interest expense:
(1) interest expense attributable to Capitalized Lease Obligations in
accordance with GAAP and the interest component of any deferred payment
obligations;
(2) amortization of issuance costs, debt discount or premium, and
other financing fees and expenses;
(3) non-cash interest expense;
(4) commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing;
(5) the interest expense on Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries or secured
by a Lien on assets of such Person or one of its Restricted Subsidiaries;
(6) net costs associated with Hedging Obligations (including
amortization of fees);
(7) the consolidated interest expense of such Person and its
Restricted Subsidiaries that was capitalized during such period;
(8) the product of (a) all dividends paid or payable in cash, Cash
Equivalents or Indebtedness or accrued during such period on any series of
Disqualified Stock of such Person or on Preferred Stock of its Restricted
Subsidiaries payable to a party other than the Company or a Wholly-Owned
Subsidiary, times (b) a fraction, the numerator of which is one and the
denominator of which is one minus the then current combined federal, state,
provincial and local statutory tax rate of such Person, expressed as a
decimal, in each case, determined on a consolidated basis in accordance
with GAAP;
(9) the cash contributions to any employee stock ownership plan or
similar trust to the extent such contributions are used by such plan or
trust to pay interest or fees to any Person (other than the Company) in
connection with Indebtedness Incurred by such plan or trust; and
-10-
(10) all interest payable with respect to discontinued operations.
For purposes of the foregoing, total interest expense will be
determined after giving effect to any net payments made or received by the
Company and its Subsidiaries with respect to Interest Rate Agreements.
"Consolidated Net Income" means, for any period, the net income (loss)
of the Company and its consolidated Restricted Subsidiaries determined in
accordance with GAAP; provided, however, that there will not be included in such
Consolidated Net Income:
(1) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that subject to the limitations contained in
clauses (4), (5) and (6) below, the Company's equity in the net income of
any such Person for such period will be included in such Consolidated Net
Income up to the aggregate amount of cash actually distributed by such
Person during such period to the Company or a Restricted Subsidiary as a
dividend or other distribution (subject, in the case of a dividend or other
distribution to a Restricted Subsidiary, to the limitations contained in
clause (3) below);
(2) any net income (or loss) of any Person acquired by the Company or
a Subsidiary in a pooling of interests transaction for any period prior to
the date of such acquisition;
(3) any net income (but not loss) of any Restricted Subsidiary if such
Subsidiary is subject to restrictions, directly or indirectly, on the
payment of dividends or the making of distributions by such Restricted
Subsidiary, directly or indirectly, to the Company, except that:
(a) subject to the limitations contained in clauses (4), (5) and
(6) below, the Company's equity in the net income of any such
Restricted Subsidiary for such period will be included in such
Consolidated Net Income up to the aggregate amount of cash that could
have been distributed by such Restricted Subsidiary during such period
to the Company or another Restricted Subsidiary as a dividend
(subject, in the case of a dividend to another Restricted Subsidiary,
to the limitation contained in this clause); and
(b) the Company's equity in a net loss of any such Restricted
Subsidiary for such period will be included in determining such
Consolidated Net Income;
(4) any gain (or loss) realized upon the sale or other disposition of
any property, plant or equipment of the Company or its consolidated
Restricted Subsidiaries which is not sold or otherwise disposed of in the
ordinary course of business and any gain (loss) realized upon the sale or
other disposition of any Capital Stock of any Person;
-11-
(5) any extraordinary gain or extraordinary loss; and
(6) the cumulative effect of a change in accounting principles.
"Continuing Directors" means, as of the date of determination, any
member of the Board of Directors of the Company who: (1) was a member of such
Board of Directors on the date of this Indenture; or (2) was nominated for
election or elected to such Board of Directors with the approval of a majority
of the Continuing Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office" means the corporate trust office of the
Trustee located at BNY Midwest Trust Company, 2 North LaSalle Street, Suite
1020, Chicago, Illinois 60602, Attention: Corporate Trust Administration, or
such other office, designated by the Trustee by written notice to the Company,
at which at any particular time its corporate trust business shall be
administered.
"Credit Agreement" means the Credit Agreement, dated as of May 1,
2003, among the Company, JP Morgan Chase Bank, as Administrative Agent, and the
lenders and letter of credit issuing banks party thereto, together with the
related documents thereto (including, without limitation, any guarantee
agreements, intercreditor agreements and security documents), in each case as
such agreements may be amended (including any amendment and restatement
thereof), supplemented or otherwise modified from time to time, including any
agreement extending the maturity of, refinancing, replacing or otherwise
restructuring (including increasing the amount of available borrowings
thereunder or adding Restricted Subsidiaries of the Company as additional
borrowers or guarantors thereunder) all or a portion of the Indebtedness under
such agreement or any successor or replacement agreement and whether by the same
or any other agent, lender or group of lenders.
"Currency Agreement" means, in respect of a Person, any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"CVC" means (i) any Subsidiary of Citigroup Inc., a Delaware
corporation, including Citicorp Venture Capital Ltd., a New York corporation,
(ii) any investment vehicle that (A) is sponsored or managed (whether through
ownership of securities having a majority of the voting power or through the
management of investments) by any Subsidiary included in clause (i) hereof and
(B) contains, as a part of its name, "Citigroup," "CVC" or any variant thereof,
or (iii) Citigroup Venture Capital Partners, L.P., a Delaware limited
partnership, and its Affiliates.
"CVC Investors" means (i) CVC, (ii) any officer, employee, director or
general partner of CVC or general partner of any investment vehicle included in
the definition of
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"CVC," (iii) any spouse or lineal descendant (including by adoption and
stepchildren) of the officer, employee, director, partner or member referred to
in clause (ii) above, and (iv) any trust, corporation, partnership or other
entity established solely for the benefit of the Persons included in clauses
(ii) or (iii) above.
"Default" means any event that is, or after notice or passage of time
or both would be, an Event of Default.
"Depository" shall mean, with respect to the Notes issued in the form
of one or more Global Notes, The Depository Trust Company, New York, New York,
or a successor thereto registered under the Exchange Act or other applicable
statute or regulation.
"Designated Senior Debt" means (1) Indebtedness constituting Senior
Debt under or in respect of the Credit Agreement and (2) any other Indebtedness
constituting Senior Debt which, at the time of determination, has an aggregate
principal amount of at least $20,000,000 and is specifically designated in the
instrument evidencing such Senior Debt as "Designated Senior Debt."
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which, 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:
(1) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise;
(2) is convertible or exchangeable for Indebtedness or Disqualified
Stock (excluding Capital Stock which is convertible or exchangeable solely
at the option of the Company or a Restricted Subsidiary); or
(3) is redeemable at the option of the holder of the Capital Stock, in
whole or in part,
in each case on or prior to the date that is 91 days after the date (a) on which
the Notes mature or (b) on which there are no Notes outstanding; provided,
however, only the portion of Capital Stock which so matures or is mandatorily
redeemable, is so convertible or exchangeable or is so redeemable at the option
of the holder thereof prior to such date will be deemed to be Disqualified
Stock; provided further, however, that any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Company to repurchase such Capital Stock upon the occurrence of a change of
control or asset sale (each defined in a substantially identical manner to the
corresponding definitions in this Indenture) shall not constitute Disqualified
Stock if the terms of such Capital Stock (and all such securities into which it
is convertible or for which it is redeemable or exchangeable) provide that the
Company may not repurchase or redeem any such Capital Stock (and all such
securities into which it is convertible or for which it is redeemable or
exchangeable) pursuant to such provision prior to compliance by the Company with
the provi-
-13-
sions of this Indenture described in Section 4.09 and Section 4.13 and such
repurchase or redemption complies with Section 4.11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
the rules and regulations thereunder or any successor statute or statutes
thereto.
"Exchange Securities" has the meaning set forth in the Registration
Rights Agreement.
"Foreign Subsidiary" means any Restricted Subsidiary of the Company
organized under the laws of, and conducting a majority of its business in, any
jurisdiction other than the United States of America, any State thereof or the
District of Columbia.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of this Indenture, including those
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
the indenture will be computed in conformity with GAAP.
"Global Note" shall mean one or more IAI Global Notes, Regulation S
Global Notes and 144A Global Notes.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness of such other Person (whether arising by
virtue of partnership arrangements, or by agreement to keep-well, to
purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" will not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Guarantor" means each Subsidiary of the Company (other than a Foreign
Subsidiary) in existence on the Issue Date and any Restricted Subsidiary created
or ac-
-14-
quired, directly or indirectly, by the Company after the Issue Date (other than
a Subsidiary that is not required to become a Guarantor pursuant to Section
4.16).
"Guarantor Senior Debt" means, with respect to any Guarantor, the
principal of, premium, if any, and interest (including any interest accruing
subsequent to, or that would accrue but for, the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed or allowable claim under applicable
law) on any Indebtedness of such Guarantor, whether outstanding on the Issue
Date or thereafter created, incurred or assumed, unless, in the case of any
particular Indebtedness, the instrument creating or evidencing the same or
pursuant to which the same is outstanding expressly provides that such
Indebtedness shall not be senior in right of payment to the Subsidiary Guarantee
of such Guarantor.
Without limiting the generality of the foregoing, "Guarantor Senior
Debt" shall also include the principal of, premium, if any, interest (including
any interest accruing subsequent to, or that would accrue but for, the filing of
a petition of bankruptcy at the rate provided for in the documentation with
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing in respect of:
(1) all monetary obligations of every nature of such Guarantor under,
or with respect to, the Credit Agreement and the guarantees issued in
connection therewith, including, without limitation, obligations to pay
principal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities (and guarantees thereof); and
(2) all Hedging Obligations in respect of the Credit Agreement;
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Guarantor Senior Debt" shall not
include:
(1) any Indebtedness of such Guarantor to the Company or any of its
Subsidiaries;
(2) Indebtedness to, or guaranteed on behalf of, any director, officer
or employee of the Company or any of its Subsidiaries (including, without
limitation, amounts owed for compensation);
(3) obligations to trade creditors and other amounts incurred (but not
under the Credit Agreement) in connection with obtaining goods, materials
or services;
(4) Indebtedness represented by Disqualified Stock;
(5) any liability for taxes owed or owing by such Guarantor;
-15-
(6) that portion of any Indebtedness incurred in violation of Section
4.10 (but, as to any such obligation, no such violation shall be deemed to
exist for purposes of this clause (6) if the holder(s) of such obligation
or their representative shall have received an officers' certificate of
such Guarantor to the effect that the incurrence of such Indebtedness does
not (or, in the case of revolving credit Indebtedness, that the incurrence
of the entire committed amount thereof at the date on which the initial
borrowing thereunder is made would not) violate such provisions of the
indenture);
(7) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to such Guarantor; and
(8) any Indebtedness of such Guarantor which is, by its express terms,
subordinated in right of payment to any other Indebtedness of such
Guarantor.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" or "Noteholder" means the registered holder of any Note.
"IAI Global Note" means a permanent global security in the form of
Exhibit A hereto bearing the legend in Exhibit B and the Private Placement
Legend and deposited with or on behalf of and registered in the name of the
Depository or its nominee.
"Incur" means issue, create, assume, guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Restricted Subsidiary
(whether by merger, consolidation, acquisition or otherwise) will be deemed to
be incurred by such Person at the time it becomes a Restricted Subsidiary. The
terms "Incurred" and "Incurrence" have meanings correlative to the foregoing.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication):
(1) the principal of and premium, if any, in respect of obligations of
such Person for borrowed money;
(2) the principal of and premium, if any, in respect of obligations of
such Person evidenced by bonds, debentures, Notes or other similar
instruments;
(3) the principal component of all obligations of such Person in
respect of letters of credit, bankers' acceptances or other similar
instruments (including reimbursement obligations with respect thereto
except to the extent such reimbursement
-16-
obligation relates to a trade payable and such obligation is satisfied
within 30 days of Incurrence);
(4) the principal component of all obligations of such Person to pay
the deferred and unpaid purchase price of property (except trade payables),
which purchase price is due more than six months after the date of placing
such property in service or taking delivery and title thereto;
(5) Capitalized Lease Obligations of such Person;
(6) the principal component or liquidation preference of all
obligations of such Person with respect to the redemption, repayment or
other repurchase of any Disqualified Stock or, with respect to any
Subsidiary, any Preferred Stock (but excluding, in each case, any accrued
dividends);
(7) the principal component of all Indebtedness of other Persons
secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided, however, that the amount
of such Indebtedness will be the lesser of (a) the fair market value of
such asset at such date of determination and (b) the amount of such
Indebtedness of such other Persons;
(8) the principal component of Indebtedness of other Persons to the
extent Guaranteed by such Person; and
(9) to the extent not otherwise included in this definition, net
Hedging Obligations (the amount of any such obligations to be equal at any
time to the termination value of such agreement or arrangement giving rise
to such obligation that would be payable by such Person at such time).
In addition, "Indebtedness" of any Person shall include Indebtedness
described in the preceding paragraph that would not appear as a liability on the
balance sheet of such Person if such Indebtedness is the obligation of a
partnership or joint venture that is not a Restricted Subsidiary (a "Joint
Venture") and either:
(1) such Person or a Restricted Subsidiary of such Person is a general
partner of the Joint Venture; or
(2) there is recourse, by contract or operation of law, with respect
to the payment of such Indebtedness to property or assets of such Person or
a Restricted Subsidiary of such Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
-17-
"Initial Purchasers" means J.P. Morgan Securities, Inc., Lehman
Brothers Inc. and NatCity Investments, Inc.
"Institutional Accredited Investor" or "IAI" means an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act.
"interest" means, with respect to the Notes, interest and any
Additional Interest on the Notes.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Notes, or if any such day is not a Business Day, on the next
succeeding Business Day.
"Interest Rate Agreement" means with respect to any Person any
interest rate protection agreement, interest rate future agreement, interest
rate option agreement, interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate hedge agreement or
other similar agreement or arrangement as to which such Person is party or a
beneficiary.
"Investment" means, with respect to any Person, all investments by
such Person in other Persons (including Affiliates) in the form of any direct or
indirect advance, loan (other than advances to customers in the ordinary course
of business) or other extension of credit (including by way of Guarantee or
similar arrangement, but excluding any debt or extension of credit represented
by a bank deposit other than a time deposit) or capital contribution to (by
means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase or
acquisition of Capital Stock, Indebtedness or other similar instruments issued
by, such Person and all other items that are or would be classified as
investments on a balance sheet prepared in accordance with GAAP; provided,
however, that none of the following will be deemed to be an Investment:
(1) Hedging Obligations entered into in the ordinary course of
business and in compliance with this Indenture;
(2) endorsements of negotiable instruments and documents in the
ordinary course of business; and
(3) an acquisition of assets, Capital Stock or other securities by the
Company or a Subsidiary for consideration to the extent such consideration
consists of common equity securities of the Company.
For purposes of Section 4.11, the term "Investment" shall include:
(1) the portion (proportionate to the Company's equity interest in a
Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of
the fair market
-18-
value of the net assets of such Restricted Subsidiary of the Company at the
time that such Restricted Subsidiary is designated an Unrestricted
Subsidiary; and
(2) any property transferred to or from an Unrestricted Subsidiary
will be valued at its fair market value at the time of such transfer, in
each case as determined in good faith by the Board of Directors of the
Company. If the Company or any Restricted Subsidiary of the Company sells
or otherwise disposes of any Voting Stock of any Restricted Subsidiary of
the Company such that, after giving effect to any such sale or disposition,
such entity is no longer a Subsidiary of the Company, the Company will be
deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value (as conclusively determined by
the Board of Directors of the Company in good faith) of the Capital Stock
of such Subsidiary not sold or disposed of.
"Issue Date" means May 1, 2003, the date of original issuance of the
Notes.
"Lien" means any mortgage, pledge, hypothecation, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof).
"Management Investors" means (i) each of the executive officers and
directors of the Company who own Voting Stock of the Company, in each case so
long as such Person shall remain an executive officer, employee or director of
the Company, (ii) any spouse or lineal descendant (including by adoption and
stepchildren) of the executive officers and directors referred to in clause (i)
above, and (iii) any trust, corporation, partnership or other entity established
solely for the benefit of the Persons included in clauses (i) and (ii) above.
"Marketable Securities" means publicly traded debt or equity
securities that are listed for trading on a national securities exchange and
that were issued by a corporation whose debt securities are rated in one of the
three highest rating categories by either S&P or Moody's.
"Maturity Date" means May 1, 2011.
"Moody's" means Moody's Investors Service, Inc. or any successor
thereto.
"Net Available Cash" from an Asset Disposition means cash payments
received (including any cash payments received by way of deferred payment of
principal pursuant to a Note or installment receivable or otherwise, but only as
and when received, but excluding any other consideration received in the form of
assumption by the acquiring Person of Indebtedness or other obligations relating
to the properties or assets that are the subject of such Asset Disposition or
received in any other non-cash form) therefrom, in each case net of:
-19-
(1) all legal, accounting, investment banking, title and recording tax
expenses, commissions and other fees and expenses incurred, and all
Federal, state, provincial, foreign and local taxes required to be paid or
accrued as a liability under GAAP (after taking into account any available
tax credits or deductions and any tax sharing agreements), as a consequence
of such Asset Disposition;
(2) all payments made on any Indebtedness which is secured by any
assets subject to such Asset Disposition, in accordance with the terms of
any Lien upon such assets, or which must by its terms, or in order to
obtain a necessary consent to such Asset Disposition, or by applicable law
be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of
such Asset Disposition; and
(4) the deduction of appropriate amounts to be provided by the seller
as a reserve, in accordance with GAAP, against any liabilities associated
with the assets disposed of in such Asset Disposition and retained by the
Company or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds," with respect to any issuance or sale of Capital
Stock, means the cash proceeds of such issuance or sale net of attorneys' fees,
accountants' fees, underwriters' or placement agents' fees, listing fees,
discounts or commissions and brokerage, consultant and other fees and charges
actually incurred in connection with such issuance or sale and net of taxes paid
or payable as a result of such issuance or sale (after taking into account any
available tax credit or deductions and any tax sharing arrangements).
"Non-Recourse Debt" means Indebtedness:
(1) as to which neither the Company nor any Restricted Subsidiary (a)
provides any Guarantee or credit support of any kind (including any
undertaking, guarantee, indemnity, agreement or instrument that would
constitute Indebtedness) or (b) is directly or indirectly liable (as a
guarantor or otherwise);
(2) 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 Restricted Subsidiary to
declare a default under such other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity; and
(3) the explicit terms of which provide there is no recourse against
any of the assets of the Company or the Restricted Subsidiaries, except in
the case of Standard Securitization Undertakings.
-20-
"Non-U.S. Person" has the meaning assigned to such term in Regulation
S.
"Notes" means, collectively, the Company's 11 1/2% Senior Subordinated
Notes due 2011 issued in accordance with Section 2.02 (whether on the Issue Date
or thereafter) treated as a single class of securities under this Indenture, as
amended or supplemented from time to time in accordance with the terms of this
Indenture.
"Obligation" means any principal, interest, penalties, fees,
indemnification, reimbursements, costs, expenses, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Offering Memorandum" means the offering memorandum of the Company and
the Guarantors dated April 24, 2003 relating to the Notes.
"officer" means the Chairman of the Board, the Chief Executive
Officer, President, any Vice President, the Treasurer or the Secretary of the
Company.
"Officers' Certificate" means a certificate signed on behalf of the
Company by any one of the following: the Chief Executive Officer, the President,
the Vice President-Finance, the Treasurer or the Secretary of the Company and
delivered to the Trustee.
"144A Global Note" means a permanent global security in registered
form representing the aggregate principal amount of Notes sold in reliance on
Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the trustee. The counsel may be an employee of, or counsel to, the
Company or the trustee.
"Pari Passu Indebtedness" means Indebtedness that ranks equally in
right of payment to the Notes.
"Permitted Holder" means the CVC Investors and the Management
Investors; provided, however, that in no event shall any Persons (other than
CVC), collectively, be deemed "Permitted Holders" with respect to more than 30%
of the total voting power of all classes of Voting Stock of the Company.
"Permitted Investment" means an Investment by the Company or any
Restricted Subsidiary in:
(1) a Restricted Subsidiary or a Person which will, upon the making of
such Investment, become a Restricted Subsidiary; provided, however, that
the primary business of such Restricted Subsidiary is a Related Business;
-21-
(2) another Person if as a result of such Investment such other Person
is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Guarantor; provided,
however, that such Person's primary business is a Related Business;
(3) the Company;
(4) cash and Cash Equivalents;
(5) receivables owing to the Company or any Restricted Subsidiary
created or acquired in the ordinary course of business and payable or
dischargeable in accordance with customary trade terms; provided, however,
that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances;
(6) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of
business;
(7) loans or advances to employees made in the ordinary course of
business consistent with past practices of the Company or such Restricted
Subsidiary in an aggregate amount not to exceed $2,000,000 at any time
outstanding;
(8) stock, obligations or securities received in settlement of debts
created in the ordinary course of business and owing to the Company or any
Restricted Subsidiary or in satisfaction of judgments or pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of a debtor;
(9) 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;
(10) Investments in existence on the Issue Date;
(11) Currency Agreements, Interest Rate Agreements and related Hedging
Obligations, which transactions or obligations are Incurred in compliance
with Section 4.10;
(12) assets, Capital Stock or other securities by the Company or a
Restricted Subsidiary to the extent the consideration therefor consists
solely of Capital Stock of the Company (other than Disqualified Stock);
(13) any Investment by the Company or any Guarantor in a
Securitization Entity or any Investment by a Securitization Entity in any
other Person, in each case in connection with a Permitted Securitization
Transaction; provided, however, that the foregoing Investment is in the
form of a Purchase Money Note that the Securitization
-22-
Entity or such other Person is required to repay as soon as practicable
from available cash collections less amounts required to be established as
reserves pursuant to contractual arrangements with entities that are not
Affiliates entered into as part of a Permitted Securitization Transaction;
(14) Investments in Permitted Joint Ventures of up to $10,000,000 at
any one time outstanding.
The amount of Investments outstanding at any time pursuant to clause
(12) above shall be deemed to be reduced, without duplication:
(a) upon the disposition or repayment of or return on any Investment
made pursuant to clause (12) above, by an amount equal to the return of
capital with respect to such Investment to the Company or any Restricted
Subsidiary (to the extent not included in the computation of Consolidated
Net Income), less the cost of the disposition of such Investment and net of
taxes; and
(b) upon a redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, by an amount equal to the lesser of (x) the fair market value
of the Company's proportionate interest in such Subsidiary immediately
following such redesignation, and (y) the aggregate amount of Investments
in such Subsidiary that increased (and did not previously decrease) the
amount of Investments outstanding pursuant to clause (12) above.
"Permitted Joint Venture" means an entity characterized as a joint
venture in which the Company or a Restricted Subsidiary (a) owns 30% of the
ownership interest and (b) has the right to receive a percentage of the profits
or distributions at least equal to the percentage of its ownership interest.
"Permitted Junior Securities" means, as to the Company or a Guarantor,
as the case may be, any securities of the Company or such Guarantor, as the case
may be, provided for by a plan of reorganization or readjustment authorized by
an order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law relating to the Company or such
Guarantor, as relevant, that:
(1) constitute either (x) Capital Stock of the Company or the
Guarantor, as the case may be, or (y) Indebtedness of the Company or the
Guarantor, as the case may be, subordinated in right of payment to all
Senior Debt or Guarantor Senior Debt, as relevant, then outstanding to at
least the same extent as the Notes are subordinated as provided in this
Indenture;
(2) not exceeding the interest rate borne by the Notes;
-23-
(3) are not entitled to the benefits of covenants or defaults
materially more favorable to the holders of such securities than those then
in effect with respect to the Notes; and
(4) do not provide for any maturity, mandatory redemption, or
mandatory repayment or repurchase, upon the occurrence of any event or
otherwise, prior to the date six months following the last stated maturity
of Senior Debt or Guarantor Senior Debt, as relevant (as modified by the
plan of reorganization or readjustment pursuant to which such securities
are issued).
"Permitted Liens" means, with respect to any Person:
(1) Liens securing Senior Debt or Guarantor Senior Debt;
(2) Liens securing the Notes and the Guarantees;
(3) pledges or deposits by such Person under workmen's compensation
laws, unemployment insurance laws or similar legislation, or good faith
deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or
deposits to secure public or statutory obligations of such Person or
deposits or cash or United States government bonds to secure surety or
appeal bonds to which such Person is a party, or deposits as security for
contested taxes or import or customs duties or for the payment of rent, in
each case incurred in the ordinary course of business;
(4) Liens imposed by law, including carriers', warehousemen's,
mechanics', materialmen's, suppliers', landlords' and vendors' Liens, in
each case for sums not yet due or being contested in good faith by
appropriate proceedings if a reserve or other appropriate provisions, if
any, as shall be required by GAAP shall have been made in respect thereof;
(5) Liens for taxes, assessments or other governmental charges not yet
subject to penalties for non-payment or which are being contested in good
faith by appropriate proceedings provided appropriate reserves required
pursuant to GAAP have been made in respect thereof;
(6) Liens in favor of issuers of surety or performance bonds or
letters of credit or bankers' acceptances issued pursuant to the request of
and for the account of such Person in the ordinary course of its business;
provided, however, that such letters of credit do not constitute
Indebtedness;
(7) encumbrances, easements or reservations of, or rights of others
for, licenses, rights of way, sewers, electric lines, telegraph and
telephone lines and other similar purposes, or zoning or other restrictions
as to the use of real properties or liens incidental to the conduct of the
business of such Person or to the ownership
-24-
of its properties which do not in the aggregate materially adversely affect
the value of said properties or materially impair their use in the
operation of the business of such Person;
(8) leases and subleases of real property which do not materially
interfere with the ordinary conduct of the business of the Company or any
of its Restricted Subsidiaries;
(9) judgment Liens not giving rise to an Event of Default so long as
such Lien is adequately bonded and any appropriate legal proceedings which
may have been duly initiated for the review of such judgment have not been
finally terminated or the period within which such proceedings may be
initiated has not expired;
(10) Liens arising solely by virtue of any statutory or common law
provisions relating to banker's Liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
depositary institution; provided, however, that:
(a) such deposit account is not a dedicated cash collateral
account and is not subject to restrictions against access by the
Company in excess of those set forth by regulations promulgated by the
Federal Reserve Board; and
(b) such deposit account is not intended by the Company or any
Restricted Subsidiary to provide collateral to the depository
institution;
(11) Liens arising from Uniform Commercial Code financing statement
filings regarding operating leases entered into by the Company and the
Restricted Subsidiaries in the ordinary course of business;
(12) Liens on property or shares of stock of a Person at the time such
Person becomes a Restricted Subsidiary; provided, however, that such Liens
are not created, incurred or assumed in connection with, or in
contemplation of, such other Person becoming a Restricted Subsidiary;
provided further, however, that any such Lien may not extend to any other
property owned by the Company or any Restricted Subsidiary;
(13) Liens on property at the time the Company or a Restricted
Subsidiary acquired the property, including any acquisition by means of a
merger or consolidation with or into the Company or any Restricted
Subsidiary; provided, however, that such Liens are not created, incurred or
assumed in connection with, or in contemplation of, such acquisition;
provided further, however, that such Liens may not extend to any other
property owned by the Company or any Restricted Subsidiary;
(14) Liens securing Indebtedness or other obligations of a Restricted
Subsidiary owing to the Company or a Guarantor;
-25-
(15) Liens securing Indebtedness under Interest Rate Agreements and
Currency Agreements; and
(16) Liens on assets transferred to a Securitization Entity or an
asset of a Securitization Entity, in either case, incurred in connection
with a Permitted Securitization Transaction.
"Permitted Securitization Transaction" means any transaction or series
of transactions pursuant to which the Company or any of its Restricted
Subsidiaries may sell, contribute, convey or otherwise transfer to (i) a
Securitization Entity (in the case of a transfer by the Company or any of its
Restricted Subsidiaries) and (ii) any other Person (in the case of a transfer by
a Securitization Entity), as may grant a security interest in, any accounts
receivable (whether now existing or arising in the future) of the Company or any
of its Restricted Subsidiaries, and any assets related thereto including,
without limitation, all collateral securing such accounts receivable and other
assets (including contract rights and all guarantees or other obligations in
respect to such accounts receivable, proceeds of such accounts receivable and
other assets which are customarily transferred or in respect of which security
interests are customarily granted in connection with asset securitization
transactions involving accounts receivable.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity.
"Preferred Stock," as applied to the Capital Stock of any corporation,
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Public Equity Offering" means an offering for cash by the Company of
its common stock, or options, warrants or rights with respect to its common
stock, made pursuant to a registration statement that has been declared
effective by the Commission (other than on Form S-4 or S-8 under the Securities
Act).
"Public Market" means, with respect to the common stock of the
Company, that:
(1) the common stock of the Company is then registered with the
Commission pursuant to Section 12(b) or 12(g) of the Exchange Act and
traded either on a national securities exchange or in the National
Association of Securities Dealers Automated Quotation System; and
(2) at least 15% of the total issued and outstanding common stock of
the Company has been distributed before such time by means of an effective
registration
-26-
statement under the Securities Act of 1933, as amended, and has not been
repurchased by the Company or any of its Affiliates.
"Purchase Money Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary Incurred for the purpose of financing all or any part of
the purchase price, or the cost of construction or improvement, of any assets to
be used in the ordinary course of business by the Company or any Restricted
Subsidiary; provided, however, that (1) the aggregate amount of such
Indebtedness shall not exceed such purchase price or cost, (2) such Indebtedness
shall be Incurred no later than 180 days after the acquisition of such assets or
completion of such construction or improvement and (3) such Indebtedness shall
not be secured by any assets of the Company or any Restricted Subsidiary other
than the assets so acquired or constructed and improvements thereon.
"Purchase Money Note" means a promissory Note of a Securitization
Entity evidencing a line of credit, which may be irrevocable, from the Company
or any Restricted Subsidiary in connection with a Permitted Securitization
Transaction to a Securitization Entity, which Note is repayable from cash
available to Securitization Entity, other than amounts required to be
established as reserves pursuant to agreements, amounts paid to investors in
respect of interest, principal and other amounts owing to such investors and
amounts paid in connection with the purchase of newly generated accounts
receivable.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
specified in Rule 144A under the Securities Act.
"Qualified Stock" means any Capital Stock of the Company that is not
Disqualified Stock.
"Record Date" means the applicable Record Date specified in the Notes;
provided, however, that if any such date is not a Business Day, the Record Date
shall be the first day immediately preceding such specified day that is a
Business Day.
"Redemption Date," when used with respect to any Note to be redeemed,
means the date fixed for such redemption pursuant to this Indenture and the
Notes.
"Redemption Price," when used with respect to any Note to be redeemed,
means the price fixed for such redemption, payable in immediately available
funds, pursuant to this Indenture and the Notes.
"Refinance" means, in respect of any Indebtedness, to refinance,
extend, increase, replace, renew, refund, repay, prepay, redeem, defease or
retire, or to issue other Indebtedness in exchange or replacement for, such
Indebtedness. "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Indebtedness (or with respect to
clause (7) of the second paragraph of Section 4.11, Disqualified Stock) that is
Incurred to Refinance
-27-
any Indebtedness (or with respect to clause (7) of the second paragraph of
Section 4.11, Disqualified Stock) existing on the date of the indenture or
Incurred in compliance with the indenture (including Indebtedness (or
Disqualified Stock, as the case may be) of the Company that Refinances
Indebtedness (or Disqualified Stock, as the case may be) of any Restricted
Subsidiary and Indebtedness (or Disqualified Stock, as the case may be) of any
Guarantor that Refinances Indebtedness (or Disqualified Stock, as the case may
be) of either the Company or another Guarantor); provided, however, that:
(1) (a) if the Stated Maturity of the Indebtedness (or Disqualified
Stock, as the case may be) being Refinanced is earlier than the Stated
Maturity of the Notes, the Refinancing Indebtedness (or Disqualified Stock,
as the case may be) has a Stated Maturity no earlier than the Stated
Maturity of the Indebtedness (or Disqualified Stock, as the case may be)
being Refinanced or (b) if the Stated Maturity of the Indebtedness (or
Disqualified Stock, as the case may be) being Refinanced is later than the
Stated Maturity of the Notes, the Refinancing Indebtedness (or Disqualified
Stock, as the case may be) has a Stated Maturity at least 91 days later
than the Stated Maturity of the Notes;
(2) the Refinancing Indebtedness (or Disqualified Stock, as the case
may be) has an Average Life at the time such Refinancing Indebtedness (or
Disqualified Stock, as the case may be) is Incurred that is equal to or
greater than the Average Life of the Indebtedness (or Disqualified Stock,
as the case may be) being Refinanced;
(3) such Refinancing Indebtedness (or Disqualified Stock, as the case
may be) is Incurred in an aggregate principal amount (or if issued with
original issue discount, an aggregate issue price) that is equal to or less
than the sum of the aggregate principal amount (or if issued with original
issue discount, the aggregate accreted value) then outstanding of
Indebtedness (or Disqualified Stock, as the case may be) being Refinanced
(plus, without duplication, any additional Indebtedness (or Disqualified
Stock, as the case may be) Incurred to pay interest or premiums required by
the instruments governing such existing Indebtedness (or Disqualified
Stock, as the case may be) and fees Incurred in connection therewith);
(4) if the Indebtedness (or Disqualified Stock, as the case may be)
being Refinanced is subordinated in right of payment to the Notes or the
Subsidiary Guarantees, such Refinancing Indebtedness (or Disqualified
Stock, as the case may be) is subordinated in right of payment to the Notes
or the Subsidiary Guarantees on terms at least as favorable, taken as a
whole, to the holders of Notes as those contained in the documentation
governing the Indebtedness (or Disqualified Stock, as the case may be)
being Refinanced; and
(5) the obligor(s) on the Refinancing Indebtedness (or Disqualified
Stock, as the case may be) shall not include any Person that is not the
Company or a Guar-
-28-
antor or a Person that is an obligor on the Indebtedness (or Disqualified
Stock, as the case may be) being Refinanced.
"Registration Rights Agreement" means (i) the Registration Rights
Agreement dated as of May 1, 2003 among the Company, the Guarantors and the
Initial Purchasers and (ii) with respect to any additional Notes issued after
the Issue Date, one or more registration rights agreements between the Company
and the other parties thereto relating to rights given by the Company to the
purchasers of such additional Notes to register such additional Notes under the
Securities Act.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Note" means a permanent global security in
registered form representing the aggregate principal amount of Notes sold in
reliance on Regulation S under the Securities Act.
"Related Business" means any business which is the same as, or
related, ancillary or complementary to, any of the businesses of the Company and
the Restricted Subsidiaries on the Issue Date (as determined in the good faith
judgment of the Company's Board of Directors).
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Debt; provided, however,
that if, and for so long as, any Designated Senior Debt lacks such a
representative, then the Representative for such Designated Senior Debt shall at
all times constitute the holders of a majority in outstanding principal amount
of such Designated Senior Debt.
"Responsible Officer" when used with respect to the Trustee, means any
vice president, any assistant vice president, any senior trust officer or
assistant trust officer, any trust officer, or any other officer associated with
the corporate trust department of the Trustee customarily performing functions
similar to those performed by any of the above designated officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such person's knowledge of and
familiarity with the particular subject.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Security" means a Note that constitutes a "Restricted
Security" within the meaning of Rule 144(a)(3) under the Securities Act;
provided, however, that the Trustee shall be entitled to request and
conclusively rely on an Opinion of Counsel with respect to whether any Note
constitutes a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company other than
an Unrestricted Subsidiary.
-29-
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or any successor thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Securitization Entity" mean a Wholly Owned Subsidiary of the Company
that engages in no activities other than in connection with the financing of
accounts receivable and that is designated by the Board of Directors of the
Company as a Securitization Entity (a) no portion of the Indebtedness or any
other obligations (contingent or otherwise) of which (i) is guaranteed by the
Company or any other Restricted Subsidiary (excluding guarantees of Obligations
(other than the principal of, and interest on, Indebtedness)) pursuant to
Standard Securitization Undertakings, (ii) is recourse to, or obligates the
Company or any Restricted Subsidiary in any way other than pursuant to Standard
Securitization Undertakings or (iii) subjects any property or asset of the
Company or any Restricted Subsidiary, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to Standard
Securitization Undertakings, (b) with which neither the Company nor any
Restricted Subsidiary has any material contract, agreement, arrangement or
understanding other than on terms no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
that are not Affiliates of the Company, other than fees payable in the ordinary
course of business in connection with servicing receivables of such entity, and
(c) to which neither the Company nor any Restricted Subsidiary (other than such
entity) has any obligation to maintain or preserve such entity's financial
condition or cause such entity to achieve certain levels of operating results.
"Senior Debt" means the principal of, premium, if any, and interest
(including any interest accruing subsequent to, or that would accrue but for,
the filing of a petition of bankruptcy at the rate provided for in the
documentation with respect thereto, whether or not such interest is an allowed
or allowable claim under applicable law) on any Indebtedness of the Company,
whether outstanding on the Issue Date or thereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall not be senior in right of
payment to the Notes.
Without limiting the generality of the foregoing, "Senior Debt" shall
also include the principal of, premium, if any, interest (including any interest
accruing subsequent to, or that would accrue but for, the filing of a petition
of bankruptcy at the rate provided for in the documentation with respect
thereto, whether or not such interest is an allowed or allowable claim under
applicable law) on, and all other amounts owing in respect of:
(1) all monetary obligations of every nature of the Company under, or
with respect to, the Credit Agreement, including, without limitation,
obligations to pay prin-
-30-
cipal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities (and guarantees thereof); and
(2) all Hedging Obligations in respect of the Credit Agreement;
in each case whether outstanding on the Issue Date or thereafter incurred.
Notwithstanding the foregoing, "Senior Debt" shall not include:
(1) any Indebtedness of the Company to any of its Subsidiaries;
(2) Indebtedness to, or guaranteed on behalf of, any director, officer
or employee of the Company or any of its Subsidiaries (including, without
limitation, amounts owed for compensation);
(3) obligations to trade creditors and other amounts incurred (but not
under the Credit Agreement) in connection with obtaining goods, materials
or services;
(4) Indebtedness represented by Disqualified Stock;
(5) any liability for taxes owed or owing by the Company;
(6) that portion of any Indebtedness incurred in violation of Section
4.10 (but, as to any such obligation, no such violation shall be deemed to
exist for purposes of this clause (6) if the holder(s) of such obligation
or their representative shall have received an Officers' Certificate of the
Company to the effect that the incurrence of such Indebtedness does not
(or, in the case of revolving credit Indebtedness, that the incurrence of
the entire committed amount thereof at the date on which the initial
borrowing thereunder is made would not) violate such provisions of the
indenture);
(7) Indebtedness which, when incurred and without respect to any
election under Section 1111(b) of Title 11, United States Code, is without
recourse to the Company; and
(8) any Indebtedness of the Company which is, by its express terms,
subordinated in right of payment to any other Indebtedness of the Company.
"Significant Subsidiary" means any Restricted Subsidiary that would be
a "significant subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"Standard Securitization Undertakings" mean representations,
warranties, covenants and indemnities entered into by the Company or any
Restricted Subsidiary that are reasonably customary in securitization
transactions relating to accounts receivable.
-31-
"Stated Maturity" means (1) with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to repay,
redeem or repurchase any such principal before the date originally scheduled for
the payment thereof and (2) with respect to any Capitalized Lease Obligations,
the date of the last payment of rent or any other amount due under such lease
before the first date such lease may be terminated without penalty.
"Subordinated Obligation" means any Indebtedness of the Company or any
Guarantor (whether outstanding on the Issue Date or thereafter Incurred) which
is subordinate or junior in right of payment to the Notes or the Subsidiary
Guarantee of such Guarantor pursuant to a written agreement.
"Subsidiary" of any Person means any corporation, association,
partnership, joint venture, limited liability company or other business entity
of which more than 50% of the total voting power of shares of Capital Stock or
other interests (including partnership and joint venture interests) 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 (1) such Person, (2) such Person and one or more
Subsidiaries of such Person or (3) one or more Subsidiaries of such Person.
Unless otherwise specified herein, each reference to a Subsidiary will refer to
a Subsidiary of the Company.
"Subsidiary Guarantee" means, individually, any Guarantee of payment
of the Notes by a Guarantor pursuant to the terms of the indenture and any
supplemental indenture thereto, and, collectively, all such Guarantees. Each
such Subsidiary Guarantee will be in the form prescribed by this Indenture.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
77aaa-77bbbb), as amended, as in effect on the date of the execution of this
Indenture until such time as this Indenture is qualified under the TIA, and
thereafter as in effect on the date on which this Indenture is qualified under
the TIA, except as otherwise provided in Section 9.04.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Securities" means one or more Notes that do not and are
not required to bear the Private Placement Legend in the form set forth in
Exhibit B, including, without limitation, the Exchange Securities.
"Unrestricted Subsidiary" means:
(1) any Subsidiary of the Company that at the time of determination
shall be designated an Unrestricted Subsidiary by the Board of Directors of
the Company in the manner provided below; and
-32-
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Company may designate any Subsidiary of
the Company (including any newly acquired or newly formed Subsidiary or a Person
becoming a Subsidiary through merger or consolidation or Investment therein) to
be an Unrestricted Subsidiary only if:
(1) such Subsidiary or any of its Subsidiaries does not own any
Capital Stock or Indebtedness of or have any Investment in, or own or hold
any Lien on any property of, any other Subsidiary of the Company which is
not a Subsidiary of the Subsidiary to be so designated or otherwise an
Unrestricted Subsidiary (other than Liens on accounts receivable and
related assets in connection with a Permitted Securitization Transaction);
(2) all the Indebtedness of such Subsidiary and its Subsidiaries
shall, at the date of designation, and will at all times thereafter,
consist of Non-Recourse Debt;
(3) such designation and the Investment of the Company in such
Subsidiary complies with Section 4.11;
(4) such Subsidiary, either alone or in the aggregate with all other
Unrestricted Subsidiaries, does not operate, directly or indirectly, all or
substantially all of the business of the Company and its Subsidiaries;
(5) such Subsidiary is a Person with respect to which neither the
Company nor any of the Restricted Subsidiaries has any direct or indirect
obligation:
(a) to subscribe for additional Capital Stock of such Person; or
(b) to maintain or preserve such Person's financial condition or
to cause such Person to achieve any specified levels of operating
results; and
(6) on the date such Subsidiary is designated an Unrestricted
Subsidiary, such Subsidiary is not a party to any agreement, contract,
arrangement or understanding with the Company or any Restricted Subsidiary
with terms substantially less favorable to the Company than those that
might have been obtained from Persons who are not Affiliates of the
Company.
Any such designation by the Board of Directors of the Company shall be
evidenced to the Trustee by filing with the Trustee a resolution of the Board of
Directors of the Company giving effect to such designation and an Officers'
Certificate certifying that such designation complies with the foregoing
conditions. If, at any time, any Unrestricted Subsidiary would fail to meet the
foregoing requirements as an Unrestricted Subsidiary, it shall thereafter cease
to be an Unrestricted Subsidiary for purposes of this Indenture and any
Indebtedness of such Subsidiary shall be deemed to be Incurred as of such date.
-33-
The Board of Directors of the Company may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; provided, however, that immediately
after giving effect to such designation, no Default shall have occurred and be
continuing or would occur as a consequence thereof and the Company could incur
at least $1.00 of additional Indebtedness pursuant to the Coverage Ratio
Exception on a pro forma basis taking into account such designation.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged and which
are not callable or redeemable at the issuer's option.
"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for the payment of
public and private debts.
"Voting Stock" of a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness or Disqualified Capital Stock at any date, the number of years
obtained by dividing: the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or
other required payment of principal or liquidation preference, including payment
at final maturity, in respect thereof, by (b) the number of years (calculated to
the nearest one-twelfth) that will elapse between such date and the making of
such payment by the then outstanding principal amount or liquidation preference
of such Indebtedness or Disqualified Capital Stock
"Wholly-Owned Subsidiary" means a Restricted Subsidiary of the
Company, all of the Capital Stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly-Owned Subsidiary.
SECTION 1.02. Other Definitions.
Term Defined in Section
---- ------------------
"Affiliate Transaction" 4.14
"Asset Disposition Offer" 4.13
"Asset Disposition Offer Amount" 4.13
"Asset Disposition Offer Period" 4.13
"Asset Disposition Purchase Date" 4.13
"CBO" 2.02
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Term Defined in Section
---- ------------------
"Change of Control Offer" 4.09
"Change of Control Payment" 4.09
"Change of Control Payment Date" 4.09
"Covenant Defeasance" 8.02
"Coverage Ratio Exception" 4.10
"Event of Default" 6.01
"Excess Proceeds" 4.13
"Guarantee Obligations" 11.01
"Legal Defeasance" 8.02
"Non-Payment Default" 10.02
"Pari Passu Notes" 4.13
"Participants" 2.15
"Paying Agent" 2.03
"Payment Blockage Notice" 10.02
"Payment Blockage Period" 10.02
"Payment Default" 10.02
"Permitted Indebtedness" 4.10
"Physical Notes" 2.01
"Registrar" 2.03
"Restricted Payment" 4.11
"Successor Company" 5.01
SECTION 1.03. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
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:
(1) "indenture securities" means the Notes;
(2) "indenture security holder" means a Holder or a Noteholder;
(3) "indenture to be qualified" means this Indenture;
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(4) "indenture trustee" or "institutional trustee" means the Trustee;
and
(5) "obligor" on the indenture securities means the Company, any
Guarantor or any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
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 words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(7) the words "including," "includes" and similar words shall be
deemed to be followed by "without limitation."
ARTICLE TWO
THE NOTES
SECTION 2.01. Form and Dating.
The Notes and the Trustee's certificate of authentication shall be
substantially in the form of Exhibit A hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Company shall approve the form of the Notes and any notation, legend or
endorsement on them. Each Note shall be dated the date of its authentication.
Each Note shall have an executed Subsidiary Guarantee from each of the
Guarantors endorsed thereon substantially in the form of Exhibit E.
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The terms and provisions contained in the Notes and the Subsidiary
Guarantees shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company, the Guarantors and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Notes offered and sold in reliance on Rule 144A and Notes offered and
sold in reliance on Regulation S shall be issued initially in the form of one or
more Global Notes, substantially in the form set forth in Exhibit A, deposited
with the Trustee, as custodian for the Depository, duly executed by the Company
(and having an executed Subsidiary Guarantee from each of the Guarantors
endorsed thereon) and authenticated by the Trustee as hereinafter provided and
shall bear the legends set forth in Exhibit B. The aggregate principal amount of
the Global Notes may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for the Depository, as
hereinafter provided.
Notes issued in exchange for interests in a Global Note pursuant to
Section 2.16 may be issued in the form of permanent certificated Notes in
registered form in substantially the form set forth in Exhibit A (the "Physical
Notes") and shall, to the extent applicable, bear the legends set forth in
Exhibit B.
SECTION 2.02. Execution and Authentication.
One Officer of the Company (who shall have been duly authorized by all
requisite corporate actions) shall sign the Notes for the Company by manual or
facsimile signature.
If an Officer whose signature is on a Note or Subsidiary Guarantee, as
the case may be, was an Officer at the time of such execution but no longer
holds that office at the time the Trustee authenticates the Note, the Note shall
nevertheless be valid.
A Note shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Note. The signature
shall be conclusive evidence that the Note has been authenticated under this
Indenture.
The Trustee shall authenticate Notes for original issue on the Issue
Date in the aggregate principal amount of $175,000,000 upon a written order of
the Company in the form of an Officers' Certificate. Of such Notes issued on the
Issue Date, $30,000,000 aggregate principal amount will be issued in exchange
for $30,000,000 aggregate principal amount of 10 1/2% Senior Subordinated Notes
due 2012 issued pursuant to the Indenture dated as of August 30, 2002, by and
among FabriSteel Products Incorporated, the Guarantors set forth therein and CVC
Capital Funding, LLC (the "CBO") in accordance with the terms of the Purchase
Agreement dated as of August 27, 2002 by and among FabriSteel Products
Incorporated, Profile Steel and Wire Inc., the Ferry Cap and Set Screw Company,
Specialty Bar Products Company and the CBO. In addition, the Trustee shall
authenticate
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Notes thereafter in unlimited amount (so long as not otherwise prohibited by the
terms of this Indenture, including without limitation, Section 4.10) for
original issue upon a written order of the Company in the form of an Officers'
Certificate. Each such Officers' Certificate shall specify the amount of Notes
to be authenticated and the date on which the Notes are to be authenticated.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Notes. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as an Agent to deal with the Company and Affiliates of the Company.
The Notes shall be issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof.
The Trustee shall have the right to decline to authenticate and
deliver any Notes under this Section 2.02 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where (a) Notes may be presented or surrendered
for registration of transfer or for exchange (the "Registrar"), (b) Notes may be
presented or surrendered for payment (the "Paying Agent") and (c) notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company may act as its
own Registrar or Paying Agent, except that for the purposes of Articles Three
and Eight and Sections 4.09 and 4.13, neither the Company nor any Affiliate of
the Company shall act as Paying Agent. The Registrar shall keep a register of
the Notes and of their transfer and exchange. The Company, upon notice to the
Trustee, may have one or more co-Registrars and one or more additional paying
agents reasonably acceptable to the Trustee. The term "Paying Agent" includes
any additional paying agent. The Company initially appoints the Trustee as
Registrar and Paying Agent until such time as the Trustee has resigned or a
successor has been appointed.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture, which agreement shall implement the
provisions of this
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Indenture that relate to such Agent. The Company shall notify the Trustee, in
advance, of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such.
SECTION 2.04. Paying Agent To Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that, subject to Article Ten and Section 11.02, each Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all assets
held by the Paying Agent for the payment of principal of, or interest on, the
Notes (whether such assets have been distributed to it by the Company or any
other obligor on the Notes), and shall notify the Trustee of any Default by the
Company (or any other obligor on the Notes) in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets held by
it to the Trustee and account for any assets disbursed and the Trustee may at
any time during the continuance of any Payment Default, upon written request to
a Paying Agent, require such Paying Agent to distribute all assets held by it to
the Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Company to the
Paying Agent, the Paying Agent shall have no further liability for such assets.
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
Holders. If the Trustee is not the Registrar, the Company shall furnish to the
Trustee at least two (2) Business Days prior to each Interest Payment Date and
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to Sections 2.15 and 2.16, when Notes are presented to the
Registrar or a co-Registrar with a request to register the transfer of such
Notes or to exchange such Notes for an equal principal amount of Notes of other
authorized denominations, the Registrar or co-Registrar shall register the
transfer or make the exchange as requested if its requirements for such
transaction are met; provided, however, that the Notes surrendered for transfer
or exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or co-Registrar,
duly executed by the Holder thereof or his or her attorney duly authorized in
writing. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Registrar's or
co-Registrar's request. No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith.
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The Registrar or co-Registrar shall not be required to register the
transfer of or exchange of any Note (i) during a period beginning at the opening
of business 15 days before the mailing of a notice of redemption of Notes and
ending at the close of business on the day of such mailing, (ii) selected for
redemption in whole or in part pursuant to Article Three, except the unredeemed
portion of any Note being redeemed in part, and (iii) during a Change of Control
Offer or an Asset Disposition Offer if such Note is tendered pursuant to such
Change of Control Offer or Asset Disposition Offer and not withdrawn.
Any Holder of a beneficial interest in a Global Note shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Notes may be effected only through a book-entry system
maintained by the Holder of such Global Note (or its agent), and that ownership
of a beneficial interest in the Note shall be required to be reflected in a
book-entry system.
SECTION 2.07. Replacement Notes.
If a mutilated Note is surrendered to the Trustee or if the Holder of
a Note claims that the Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Note if the
Trustee's requirements are met. Such Holder must provide an indemnity bond or
other indemnity, sufficient in the judgment of both the Company and the Trustee,
to protect the Company, the Trustee or any Agent from any loss which any of them
may suffer if a Note is replaced. The Company may charge such Holder for its
reasonable out-of-pocket expenses in replacing a Note pursuant to this Section
2.07, including reasonable fees and expenses of counsel and of the Trustee.
Every replacement Note is an additional obligation of the Company and
every replacement Subsidiary Guarantee shall constitute an additional obligation
of the Guarantor thereof.
SECTION 2.08. Outstanding Notes.
Notes outstanding at any time are all the Notes that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.08 as not outstanding. A
Note does not cease to be outstanding because the Company, the Guarantors or any
of their respective Affiliates holds the Note (subject to the provisions of
Section 2.09).
If a Note is replaced pursuant to Section 2.07 (other than a mutilated
Note surrendered for replacement), it ceases to be outstanding unless a
Responsible Officer of the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be
outstanding upon surrender of such Note and replacement thereof pursuant to
Section 2.07.
If the principal amount of any Note is considered paid under Section
4.01, it ceases to be outstanding and interest ceases to accrue. If on a
Redemption Date or the
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Maturity Date the Trustee or Paying Agent (other than the Company or an
Affiliate thereof) holds U.S. Legal Tender or U.S. Government Obligations
sufficient to pay all of the principal and interest due on the Notes payable on
that date, then on and after that date such Notes cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.09. Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company or any of its Affiliates shall be considered as though they are 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
Notes that a Responsible Officer of the Trustee actually knows are so owned
shall be disregarded.
SECTION 2.10. Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of definitive Notes but may have variations that the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive Notes in
exchange for temporary Notes. Until such exchange, temporary Notes shall be
entitled to the same rights, benefits and privileges as definitive Notes.
Notwithstanding the foregoing, so long as the Notes are represented by a Global
Note, such Global Note may be in typewritten form.
SECTION 2.11. Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Notes surrendered to them for transfer, exchange or payment. The Trustee, or
at the direction of the Trustee, the Registrar or the Paying Agent (other than
the Company or any of its Subsidiaries), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Notes surrendered for
transfer, exchange, payment or cancellation in accordance with its customary
procedures. Subject to Section 2.07, the Company may not issue new Notes to
replace Notes that it has paid or delivered to the Trustee for cancellation. If
the Company or any Guarantor shall acquire any of the Notes, such acquisition
shall not operate as a redemption or satisfaction of the Indebtedness
represented by such Notes unless and until the same are surrendered to the
Trustee for cancellation pursuant to this Section 2.11.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it
shall, unless the Trustee fixes another record date pursuant to Section 6.10,
pay the defaulted interest, plus (to the extent lawful) any interest payable on
the defaulted interest, in any lawful manner. The Company may pay the defaulted
interest to the Persons who are Holders on a
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subsequent special record date, which date shall be the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted interest or
the next succeeding Business Day if such date is not a Business Day. At least 15
days before any such subsequent special record date, the Company shall mail to
each Holder, with a copy to the Trustee, a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest, and
interest payable on such defaulted interest, if any, to be paid.
SECTION 2.13. CUSIP Number.
The Company in issuing the Notes may use a "CUSIP" number, and if so,
the Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to 10:00 a.m. New York City time on each Interest Payment Date,
Maturity Date, Redemption Date, Change of Control Payment Date and Asset
Disposition Purchase Date, the Company shall have deposited with the Paying
Agent in immediately available funds money sufficient to make cash payments, if
any, due on such Interest Payment Date, Maturity Date, Redemption Date, Change
of Control Payment Date and Asset Disposition Purchase Date, as the case may be,
in a timely manner which permits the Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date, Change of
Control Payment Date and Asset Disposition Purchase Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Notes.
(a) The Global Notes initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set forth in
Exhibit B.
Members of, or participants in, the Depository ("Participants") shall
have no rights under this Indenture with respect to any Global Note held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Note, and the Depository may be treated by the Company, the Trustee and
any agent of the Company or the Trustee as the absolute owner of the Global Note
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depository or impair, as between the Depository and
Participants, the operation of customary practices governing the exercise of the
rights of a Holder of any Note.
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(b) Transfers of Global Notes shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective nominees.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Physical Notes in accordance with the rules and procedures of the
Depository and the provisions of Section 2.16. In addition, Physical Notes shall
be transferred to all beneficial owners in exchange for their beneficial
interests in Global Notes if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Note and a
successor Depository is not appointed by the Company, with a copy to the
Trustee, within 90 days of such notice, (ii) the Depository ceases to be
registered as a clearing agency under the Securities Act and a successor
depositary is not appointed by the Company, with a copy to the Trustee, within
90 days of such cessation, (iii) the Company, at its option, notifies the
Trustee that it elects to cause the issuance of certificated Notes or (iv) a
Default has occurred and is continuing and the Registrar has received a written
request from the Depository to issue Physical Notes.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Note to beneficial owners pursuant to paragraph
(b) of this Section 2.15, the Registrar shall (if one or more Physical Notes are
to be issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred, and (i) the
Company shall execute, (ii) the Guarantors shall execute notations of Subsidiary
Guarantees on and (iii) the Trustee shall authenticate and deliver, one or more
Physical Notes of authorized denominations in an aggregate principal amount
equal to the principal amount of the beneficial interest in the Global Note so
transferred.
(d) In connection with the transfer of a Global Note as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.15, such Global
Note shall be deemed to be surrendered to the Trustee for cancellation, and (i)
the Company shall execute, (ii) the Guarantors shall execute notations of
Subsidiary Guarantees on and (iii) the Trustee shall upon written instructions
from the Company authenticate and deliver, to each beneficial owner identified
by the Depository in exchange for its beneficial interest in such Global Note,
an equal aggregate principal amount of Physical Notes of authorized
denominations.
(e) Any Physical Note constituting a Restricted Security delivered in
exchange for an interest in a Global Note pursuant to paragraph (b), (c) or (d)
of this Section 2.15 shall, except as otherwise provided by Section 2.16, bear
the Private Placement Legend.
(f) The Holder of any Global Note may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
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SECTION 2.16. Special Transfer Provisions.
(a) Transfers to Non-QIB Institutional Accredited Investors and
Non-U.S. Persons. The following provisions shall apply with respect to the
registration of any proposed transfer of a Restricted Security to any
Institutional Accredited Investor which is not a QIB or to any Non-U.S. Person:
(i) the Registrar shall register the transfer of any Restricted
Security, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Note, or portion thereof,
at any time on or prior to the second anniversary of the Issue Date or (y)
(1) in the case of a transfer to an Institutional Accredited Investor which
is not a QIB (excluding Non-U.S. Persons), the proposed transferee has
delivered to the Registrar a certificate substantially in the form of
Exhibit C hereto and any legal opinions and certifications required thereby
and (2) in the case of a transfer to a Non-U.S. Person, the proposed
transferor has delivered to the Registrar a certificate substantially in
the form of Exhibit D hereto;
(ii) if the proposed transferee is a Participant and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the IAI Global Note or Regulation S Global
Note, as the case may be, upon receipt by the Registrar of the Physical
Note and (x) written instructions given in accordance with the Depository's
and the Registrar's procedures and (y) the appropriate certificate, if any,
required by clause (y) of paragraph (i) above, the Registrar shall register
the transfer and reflect on its books and records the date and an increase
in the principal amount of the IAI Global Note or Regulation S Global Note,
as the case may be, in an amount equal to the principal amount of Physical
Notes to be transferred, and the Registrar shall cancel the Physical Notes
so transferred; and
(iii) if the proposed transferor is a Participant seeking to transfer
an interest in a Global Note, upon receipt by the Registrar of (x) written
instructions given in accordance with the Depository's and the Registrar's
procedures and (y) the appropriate certificate, if any, required by clause
(y) of paragraph (i) above, the Registrar shall register the transfer and
reflect on its books and records the date and (A) a decrease in the
principal amount of the Global Note from which such interests are to be
transferred in an amount equal to the principal amount of the Notes to be
transferred and (B) an increase in the principal amount of the IAI Global
Note or the Regulation S Global Note, as the case may be, in an amount
equal to the principal amount of the Notes to be transferred.
(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a Restricted Security to
a QIB:
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(i) the Registrar shall register the transfer of any Restricted
Security, whether or not such Note bears the Private Placement Legend, if
(x) the requested transfer is after the second anniversary of the Issue
Date; provided, however, that neither the Company nor any Affiliate of the
Company has held any beneficial interest in such Note, or portion thereof,
at any time on or prior to the second anniversary of the Issue Date or (y)
such transfer is being made by a proposed transferor who has checked the
box provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed
the certification provided for on the form of Note stating, or has
otherwise advised the Company and the Registrar in writing, that it is
purchasing the Note for its own account or an account with respect to which
it exercises sole investment discretion and that it and any such account is
a QIB within the meaning of Rule 144A, and is aware that the sale to it is
being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information and that it is aware
that the transferor is relying upon its foregoing representations in order
to claim the exemption from registration provided by Rule 144A;
(ii) if the proposed transferee is a Participant and the Notes to be
transferred consist of Physical Notes which after transfer are to be
evidenced by an interest in the 144A Global Note, upon receipt by the
Registrar of the Physical Note and written instructions given in accordance
with the Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its book and records the date and an
increase in the principal amount of the 144A Global Note in an amount equal
to the principal amount of Physical Notes to be transferred, and the
Registrar shall cancel the Physical Notes so transferred; and
(iii) if the proposed transferor is a Participant seeking to transfer
an interest in the IAI Global Note or the Regulation S Global Note, upon
receipt by the Registrar of written instructions given in accordance with
the Depository's and the Registrar's procedures, the Registrar shall
register the transfer and reflect on its books and records the date and (A)
a decrease in the principal amount of the IAI Global Note or the Regulation
S Global Note, as the case may be, in an amount equal to the principal
amount of the Notes to be transferred and (B) an increase in the principal
amount of the 144A Global Note in an amount equal to the principal amount
of the Notes to be transferred.
(c) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
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(d) Private Placement Legend. Upon the transfer, exchange or
replacement of Notes not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar or co-Registrar shall deliver only Notes that
bear the Private Placement Legend unless (i) there is delivered to the Trustee
an Opinion of Counsel reasonably satisfactory to the Company and the Trustee to
the effect that neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the Securities
Act or (ii) such Note has been offered pursuant to an effective registration
statement under the Securities Act.
(e) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Indenture. Prior to any transfer of a Note by the Company or any of its
Affiliates, the Company or such Affiliate shall notify the transferee of such
Note that the transferor of such Note was the issuer or an affiliate of the
issuer for purposes of Rule 144 under the Securities Act.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 2.15 or this Section 2.16.
The Company shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the giving
of reasonable written notice to the Registrar.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among Depositary Participants or
beneficial owners of interests in any Global Note) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
The Trustee shall have no responsibility for the actions or omissions
of the Depository, or the accuracy of the books and records of the Depository.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 5 or Section
6 of the Notes, it shall notify the Trustee in writing of the Redemption Date,
the Redemption Price and the principal amount of Notes to be redeemed. The
Company shall give notice of redemption to the Paying Agent and Trustee at least
45 days but not more than 60 days before the Redemption Date, together with an
Officers' Certificate stating that such redemption will comply with the
conditions contained herein.
SECTION 3.02. Selection of Notes To Be Redeemed.
If less than all of the Notes are to be redeemed at any time, the
Trustee will select Notes for redemption as follows:
(1) if the Notes are listed on a national securities exchange, in
compliance with the requirements of the principal national securities
exchange on which the Notes are listed; or
(2) if the Notes are not so listed, on a pro rata basis, by lot or by such
method as the Trustee, in its sole discretion, shall deem fair and
appropriate;
provided, however, that, in the case of a redemption pursuant to Section 6 of
the Notes, the Trustee will select the Notes on a pro rata basis or on as nearly
a pro rata basis as practicable (subject to the procedures of the Depository).
No Notes of $1,000 or less shall be redeemed in part.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail, postage
prepaid, to each Holder whose Notes are to be redeemed at its registered
address. At the Company's request, the Trustee shall forward the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Notes (including the CUSIP number) to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest, if any,
to be paid;
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(3) the name and address of the Paying Agent;
(4) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price plus accrued interest, if any;
(5) that, unless the Company defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and
after the Redemption Date, and the only remaining right of the Holders of
such Notes is to receive payment of the Redemption Price upon surrender to
the Paying Agent of the Notes redeemed;
(6) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, and upon surrender of such Note, a new Note or Notes in aggregate
principal amount equal to the unredeemed portion thereof will be issued;
(7) if fewer than all the Notes are to be redeemed, the identification
of the particular Notes (or portion thereof) to be redeemed, as well as the
aggregate principal amount of Notes to be redeemed and the aggregate
principal amount of Notes to be outstanding after such partial redemption;
and
(8) the Section of the Notes pursuant to which the Notes are to be
redeemed.
The notice, if mailed in a manner herein provided, shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Note designated for redemption in whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Note. Notices of redemption may not be conditional.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03,
Notes called for redemption become due and payable on the Redemption Date and at
the Redemption Price plus accrued interest, if any, to the Redemption Date. Upon
surrender to the Trustee or Paying Agent, such Notes called for redemption shall
be paid at the Redemption Price (which shall include accrued interest thereon to
the Redemption Date), but installments of interest, the maturity of which is on
or prior to the Redemption Date, shall be payable to Holders of record at the
close of business on the relevant Record Dates. On and after the Redemption Date
interest shall cease to accrue on Notes or portions thereof called for
redemption.
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SECTION 3.05. Deposit of Redemption Price.
On or before 10:00 a.m. New York City time on the Redemption Date, the
Company shall deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the Redemption Price plus accrued interest, if any, of all Notes to be redeemed
on that date.
If the Company complies with the preceding paragraph, then, unless the
Company defaults in the payment of such Redemption Price plus accrued interest,
if any, interest on the Notes to be redeemed will cease to accrue on and after
the applicable Redemption Date, whether or not such Notes are presented for
payment.
SECTION 3.06. Notes Redeemed in Part.
If any Note is to be redeemed in part only, the notice of redemption
that relates to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note or Notes in principal amount equal to the
unredeemed portion of the original Note or Notes shall be issued in the name of
the Holder thereof upon cancellation of the original Note or Notes.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Notes.
The Company shall pay the principal of (and premium, if any) and
interest on the Notes in the manner provided in the Notes, the Registration
Rights Agreement and this Indenture. An installment of principal of or interest
on the Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate thereof) holds on that date
U.S. Legal Tender designated for and sufficient to pay the installment. Interest
on the Notes will be computed on the basis of a 360-day year comprised of twelve
30-day months.
The Company shall pay interest on overdue principal (including,
without limitation, post petition interest in a proceeding under any Bankruptcy
Law), and overdue interest, to the extent lawful, at the same rate per annum
borne by the Notes.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of
New York, the office or agency required under Section 2.03. 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
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or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates BNY Midwest Trust Company,
located at BNY Midwest Trust Company, c/o The Bank of New York, 101 Barclay
Street, Floor 8 West, New York, New York 10286, as such office of the Company in
accordance with Section 2.03.
SECTION 4.03. Corporate Existence.
Except as otherwise permitted by Article Five, the Company shall do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and the corporate, partnership or other existence
of each of its Restricted Subsidiaries in accordance with the respective
organizational documents of each such Restricted Subsidiary and the rights
(charter and statutory) and material franchises of the Company and each of its
Restricted Subsidiaries; provided, however, that the Company shall not be
required to preserve any such right, franchise or corporate existence with
respect to each such Restricted Subsidiary if the loss thereof would not,
individually or in the aggregate, have a material adverse effect on the
business, financial condition or results of operations of the Company and its
Restricted Subsidiaries taken as a whole.
SECTION 4.04. Payment of Taxes and Other Claims.
The Company and each of the Guarantors shall, and shall cause each of
their respective Subsidiaries to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (a) all material taxes,
assessments and governmental charges levied or imposed upon it or any of its
respective Subsidiaries or upon the income, profits or property of it or any of
its respective Subsidiaries and (b) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, might by law become a material
liability or Lien upon the property of it or any of its Restricted Subsidiaries;
provided, however, that the Company and the Guarantors shall not be required to
pay or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount the applicability or validity is being contested in
good faith by appropriate proceedings and for which appropriate provision has
been made.
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SECTION 4.05. Maintenance of Properties and Insurance.
(a) The Company shall cause all material properties owned by or leased
by it or any of its Restricted Subsidiaries used or useful to the conduct of its
business or the business of any of its Restricted Subsidiaries to be maintained
and kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all repairs, renewals,
replacements, and betterments thereof, all as in its judgment may be necessary,
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section 4.05 shall prevent the Company or any of its Restricted Subsidiaries
from discontinuing the use, operation or maintenance of any of such properties,
or disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors of the Company or any such Restricted
Subsidiary desirable in the conduct of the business of the Company or any such
Restricted Subsidiary, and if such discontinuance or disposal would not,
individually or in the aggregate, have a material adverse effect on the ability
of the Company or the Guarantors to perform each of their respective obligations
hereunder; provided further, however, that nothing in this Section 4.05 shall
prevent the Company or any of its Restricted Subsidiaries from discontinuing or
disposing of any properties to the extent otherwise permitted by this Indenture.
(b) The Company shall maintain, and shall cause its Restricted
Subsidiaries to maintain, insurance with responsible carriers against such risks
and in such amounts, and with such deductibles, retentions, self-insured amounts
and co-insurance provisions, as are customarily carried by similar businesses of
similar size, including property and casualty loss, workers' compensation and
interruption of business insurance.
SECTION 4.06. Compliance Certificate; Notice of Default.
(a) The Company shall deliver to the Trustee, within 120 days after
the close of each fiscal year, an Officers' Certificate stating that a review of
the activities of the Company and its Subsidiaries has been made under the
supervision of the signing Officers with a view to determining whether the
Company and each Guarantor has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to such Officer's knowledge, the Company and each
Guarantor during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default occurred during such year
and at the date of such certificate there is no Default that has occurred and is
continuing or, if such signers do know of such Default, the certificate shall
describe its status with particularity. The Officers' Certificate shall also
notify the Trustee should the Company elect to change the manner in which it
fixes its fiscal year end.
(b) The Company shall deliver to the Trustee as soon as possible and
in any event within 30 days after the Company becomes aware of the occurrence of
any De-
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fault an Officers' Certificate specifying the Default and describing its status
with particularity and the action proposed to be taken thereto.
SECTION 4.07. Compliance with Laws.
The Company shall comply, and shall cause each of its Subsidiaries to
comply, with all applicable statutes, rules, regulations, orders and
restrictions of the United States, all states and municipalities thereof, and of
any governmental department, commission, board, regulatory authority, bureau,
agency and instrumentality of the foregoing, in respect of the conduct of their
respective businesses and the ownership of their respective properties, except,
in any such case, to the extent the failure to so comply would not, individually
or in the aggregate, have a material adverse effect on the business, financial
condition or results of operations of the Company and its Restricted
Subsidiaries taken as a whole.
SECTION 4.08. Waiver of Stay, Extension or Usury Laws.
Each of the Company and each Guarantor covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law that would prohibit or forgive the
Company or such Guarantor from paying all or any portion of the principal of
and/or interest on the Notes or the Subsidiary Guarantee of any such Guarantor
as contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture, and (to
the extent that it may lawfully do so) each hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.09. Change of Control.
If a Change of Control occurs, each Holder of Notes will have the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of that Holder's Notes pursuant to a Change of
Control Offer (the "Change of Control Offer"). In the Change of Control Offer,
the Company will offer to pay an amount in cash (the "Change of Control
Payment") equal to 101% of the aggregate principal amount of Notes repurchased,
plus accrued and unpaid interest thereon, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant Interest Payment Date). Within 30 days
following any Change of Control, the Company will mail a notice to each Holder
describing the transaction or transactions that constitute the Change of Control
and offering to repurchase Notes on the date (the "Change of Control Payment
Date") specified in such notice, which date shall be a Business Day no earlier
than 30 days and no later than 60 days from the date such notice is
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mailed, pursuant to the procedures required by this Indenture and described in
such notice. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.09 and that all Notes tendered and not withdrawn will be accepted
for payment;
(2) the purchase price (including the amount of accrued and unpaid
interest, if any, to the Change of Control Payment Date) and the Change of
Control Payment Date;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a
Change of Control Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the reverse of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the
Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Change of Control Payment Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(7) that Holders whose Notes are purchased only in part will be issued
new Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; and
(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company will, to
the extent lawful:
(1) accept for payment all Notes or portions thereof (equal to $1,000 or
an integral multiple thereof) properly tendered pursuant to the Change
of Control Offer;
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(2) deposit with the Paying Agent U.S. Legal Tender sufficient to pay the
Change of Control Payment in respect of all Notes or portions thereof
so tendered; and
(3) deliver or cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate principal
amount of Notes or portions thereof being purchased by the Company.
The Paying Agent will promptly mail to each Holder of Notes so
tendered the Change of Control Payment for such Notes, and the Trustee will
promptly authenticate and mail (or cause to be transferred by book entry) to
each Holder a new Note equal in principal amount to any unpurchased portion of
the Notes surrendered, if any; provided that each such new Note will be in a
principal amount of $1,000 or an integral multiple thereof.
The Company will not be required to make a Change of Control Offer
upon a Change of Control if a third party makes the Change of Control Offer in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Indenture applicable to a Change of Control Offer made by the
Company and purchases all Notes validly tendered and not withdrawn under such
Change of Control Offer.
The Company will comply, and will cause any third party making a
Change of Control Offer to 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 are applicable in connection with a Change of
Control Offer. To the extent the provisions of any applicable securities laws or
regulations conflict with the provisions of this Indenture relating to a Change
of Control Offer, the Company will not be deemed to have breached its
obligations under this Indenture by virtue of complying with such laws or
regulations.
SECTION 4.10. Limitation on Indebtedness.
The Company will not, and will not permit any Restricted Subsidiary
to, Incur any Indebtedness; provided, however, that the Company, any Guarantor
and any Securitization Entity that is a Restricted Subsidiary may Incur
Indebtedness, and any Restricted Subsidiary may incur Acquired Indebtedness, in
either case, if:
(a) the Consolidated Coverage Ratio for the Company and the Restricted
Subsidiaries is at least 2.00 to 1.00; and
(b) no Default has occurred and is continuing or would occur as a
consequence of Incurring the Indebtedness (this proviso, the "Coverage
Ratio Exception").
The first paragraph of this covenant will not prohibit the Incurrence
of the following Indebtedness (collectively, "Permitted Indebtedness"):
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(1) Indebtedness represented by the Notes issued on the Issue Date,
the Exchange Securities and the Subsidiary Guarantees;
(2) any Refinancing Indebtedness Incurred in respect of any
Indebtedness outstanding on the Issue Date (other than Indebtedness
outstanding under the Credit Agreement and Indebtedness of the type
described in clause (4) or (5)) or Incurred pursuant to the first paragraph
of this covenant, clause (1) or this clause (2);
(3) Indebtedness Incurred, whether before, on or after the Issue Date,
pursuant to the Credit Agreement and/or pursuant to a Permitted
Securitization Transaction in an aggregate principal amount not to exceed
the greater of:
(a) $50,000,000 at any time outstanding, less the aggregate
principal amount of all mandatory prepayments of principal and
commitment reductions, in each case permanently reducing the
commitments thereunder; and
(b) the sum of (x) 60% of the consolidated book value of the
inventory of the Company and its Restricted Subsidiaries and (y) 85%
of the consolidated book value of the accounts receivable of the
Company and its Restricted Subsidiaries less any amount of any
Indebtedness Incurred pursuant to clause (13) below, in each case as
determined as of the last day of the most recent fiscal quarter for
which internal financial statements are in existence;
(4) Indebtedness owed by the Company or any Restricted Subsidiary to
the Company or any Restricted Subsidiary; provided, however, that
(a) any such Indebtedness owed by the Company shall be expressly
subordinated to the prior payment in full in cash of all obligations
with respect to the Notes, and any such Indebtedness owed by any
Guarantor shall be expressly subordinated to the prior payment in full
in cash of all obligations with respect to the Subsidiary Guarantee of
such Guarantor; and
(b) if such Indebtedness is subsequently held by a Person other
than the Company or any Restricted Subsidiary, the obligor of such
Indebtedness shall be deemed to have Incurred Indebtedness not
permitted by this clause (4);
(5) the Guarantee by the Company or any Restricted Subsidiary of
Indebtedness of the Company or a Guarantor; provided, however, that the
Indebtedness being Guaranteed is, or was at the time of issuance, permitted
to be Incurred by another provision of the indenture;
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(6) Indebtedness under Currency Agreements and Interest Rate
Agreements; provided, however, that (x) in the case of Currency Agreements,
such Currency Agreements are related to business transactions of the
Company or any Restricted Subsidiary entered into in the ordinary course of
business and (y) such Currency Agreements and Interest Rate Agreements are
entered into for bona fide hedging purposes of the Company or any
Restricted Subsidiary and not for purposes of speculation;
(7) Capitalized Lease Obligations and Purchase Money Indebtedness, and
Refinancing Indebtedness thereof, in an aggregate principal amount not to
exceed $7,500,000 at any time outstanding;
(8) Indebtedness of the Company and its Restricted Subsidiaries, to
the extent the proceeds thereof are immediately used after the Incurrence
thereof to purchase Notes tendered in an offer to purchase made as a result
of a Change of Control;
(9) Indebtedness of the Company or any Restricted Subsidiary
represented by letters of credit and guarantees for the account of the
Company or any Restricted Subsidiary, as the case may be, in order to
provide security for workers' compensation claims, payment obligations in
connection with self-insurance or similar requirements in the ordinary
course of business, and other Indebtedness with respect to workers'
compensation claims, self-insurance obligations, performance, surety and
similar bonds and completion guarantees provided by the Company or any
Restricted Subsidiary in the ordinary course of business;
(10) Indebtedness in respect of trade and standby letters of credit,
performance bonds, bankers' acceptances and surety or appeal bonds issued
for the account of the Company or any Restricted Subsidiary in the ordinary
course of its business;
(11) indemnification, adjustment of purchase price or similar
obligations, in each case, Incurred in connection with the disposition of
any business, assets or capital stock of the Company or any Restricted
Subsidiary, provided, however, that the maximum aggregate liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
actually received by the Company and the Restricted Subsidiaries in
connection with such disposition;
(12) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument (except in
the case of daylight overdrafts) drawn against insufficient funds in the
ordinary course of business; provided, however, that such Indebtedness is
extinguished within five business days of Incurrence;
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(13) Indebtedness of Foreign Subsidiaries in an aggregate principal
amount at any time not to exceed the sum of (x) 60% of the consolidated
book value of the inventory of Foreign Subsidiaries and (y) 85% of the
consolidated book value of the accounts receivable of such Foreign
Subsidiaries, in each case as of the end of the most recent fiscal quarter
for which internal financial statements are available;
(14) Acquired Indebtedness; provided, however, that at the time such
Person becomes a Restricted Subsidiary or is acquired by the Company or at
the time such Person is merged with or into the Company or one of its
Restricted Subsidiaries, the Company would have been able to Incur $1.00 of
additional Indebtedness pursuant to the first paragraph of this covenant
after giving effect to the Incurrence of such Acquired Indebtedness
pursuant to this clause; and
(15) in addition to the Indebtedness referred to in clauses (1)
through (14) above, Indebtedness in an aggregate principal amount not to
exceed $20,000,000 at any time outstanding.
The outstanding principal amount of any particular Indebtedness shall
be counted only once and any obligation arising under any Guarantee, Lien,
letter of credit or similar instrument supporting such Indebtedness shall be
disregarded, so long as the obligor is permitted to Incur such obligation. In
the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (2) through (15)
of the definition of "Permitted Indebtedness" or is entitled to be Incurred
pursuant to the Coverage Ratio Exception, the Company shall, in its sole
discretion, classify such item of Indebtedness in any manner that complies with
this covenant (provided, however, that all Indebtedness outstanding under the
Credit Agreement on the Issue Date shall be deemed to have been incurred
pursuant to clause (3) of the definition of "Permitted Indebtedness") and, in
the Company's sole discretion, may later reclassify such item into any one or
more of the categories of Permitted Indebtedness described in clauses (2)
through (15) of the definition of "Permitted Indebtedness" or the first
paragraph of this covenant (provided, however, that at the time of
reclassification it meets the criteria in such category or categories). The
amount of Indebtedness issued at a price that is less than the principal amount
thereof will be equal to the amount of the liability in respect thereof
determined in accordance with GAAP.
Accrual of interest, accrual of dividends, fluctuations in exchange
rates and commodity prices and the accretion of accreted value will not be
deemed to be an Incurrence of Indebtedness for purposes of this covenant. The
amount of any Indebtedness outstanding as of any date shall be (1) the accreted
value of the Indebtedness in the case of any Indebtedness issued with original
issue discount and (2) the principal amount or liquidation preference thereof,
together with any interest and dividends thereon that is more than 30 days past
due, in the case of any other Indebtedness.
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For purposes of determining compliance of any non-U.S.
dollar-denominated Indebtedness with this covenant, the U.S. dollar-equivalent
principal amount of Indebtedness denominated in a foreign currency shall be
calculated based on the relevant currency exchange rate in effect on the date
such Indebtedness was Incurred, in the case of term Indebtedness, or first
committed, in the case of revolving credit Indebtedness; provided, however, that
if such Indebtedness is Incurred to Refinance other Indebtedness denominated in
the same or different currency, and such Refinancing would cause the applicable
U.S. dollar-denominated restriction to be exceeded if calculated at the relevant
currency exchange rate in effect on the date of such Refinancing, such U.S.
dollar-denominated restriction shall be deemed not to have been exceeded so long
as the principal amount of such Refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being Refinanced. Notwithstanding any
other provision of this Section 4.10, the maximum amount of Indebtedness that
may be Incurred pursuant to this Section 4.10 shall not be deemed to be exceeded
solely as a result of fluctuations in the exchange rate of currencies.
The Company will not permit any Unrestricted Subsidiary to Incur any
Indebtedness or issue any shares of Disqualified Stock, other than Non-Recourse
Debt. If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary,
any Indebtedness of such Subsidiary shall be deemed to be Incurred by a
Restricted Subsidiary of the Company as of such time (and, if such Indebtedness
is not permitted to be Incurred as of such time under this Section 4.10, the
Company shall be in Default of this Section 4.10).
SECTION 4.11. Limitation on Restricted Payments.
The Company will not, and will not permit any Restricted Subsidiary,
directly or indirectly, to:
(1) declare or pay any dividend or make any distribution on or in
respect of its Capital Stock (including any payment in connection with any
merger or consolidation involving the Company or any Restricted Subsidiary)
except:
(a) dividends or distributions payable in Qualified Stock or in
options, warrants or other rights to purchase Qualified Stock; and
(b) dividends or distributions payable to the Company or a
Restricted Subsidiary of the Company (and if such Restricted
Subsidiary is not a Wholly-Owned Subsidiary, to its other holders of
common Capital Stock on a pro rata basis);
(2) purchase, repurchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or a Restricted Subsidiary held by
Persons other than the Company or a Restricted Subsidiary of the Company
(other than in exchange for Qualified Stock);
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(3) purchase, repurchase, redeem, defease or otherwise acquire or
retire for value, before scheduled maturity, scheduled repayment or
scheduled sinking fund payment, any Subordinated Obligations; or
(4) make any Restricted Investment in any Person
(any of the foregoing referred to in clauses (1) through (4) shall be referred
to herein as a "Restricted Payment"), if at the time the Company or such
Restricted Subsidiary makes such Restricted Payment:
(a) a Default has occurred and is continuing (or would result from
such Restricted Payment);
(b) the Company is not able to Incur an additional $1.00 of
Indebtedness pursuant to the Coverage Ratio Exception; or
(c) the aggregate amount of such Restricted Payment and all other
Restricted Payments declared or made subsequent to the Issue Date (other
than Restricted Payments made pursuant to clauses (2), (3) and (5) of the
next paragraph) would exceed the sum of:
(i) 50% of Consolidated Net Income for the period (treated as one
accounting period) from the first day of the fiscal quarter in which
the Issue Date occurs to the end of the most recent fiscal quarter
ending prior to the date of such Restricted Payment for which internal
financial statements are available (or, in case such Consolidated Net
Income is a deficit, minus 100% of such deficit); plus
(ii) the aggregate Net Cash Proceeds received after the Issue
Date by the Company or its Restricted Subsidiaries from the (A)
issuance and sale of Qualified Stock by the Company or its Restricted
Subsidiaries or capital contributions to the Company or (B) issuance
and sale of Disqualified Stock or Indebtedness of the Company or its
Restricted Subsidiaries that has been converted into or exchanged by
the Company or its Restricted Subsidiaries for Qualified Stock of the
Company or a Restricted Subsidiary, less the amount of any cash, or
the fair market value of any other assets, distributed by the Company
or any Restricted Subsidiary upon such conversion or exchange (other
than Net Cash Proceeds received from an issuance and sale of Capital
Stock to or capital contributions from (x) the Company or a Subsidiary
of the Company or (y) an employee stock ownership plan, option plan or
similar trust to the extent such sale to an employee stock ownership
plan, option plan or similar trust is financed by loans from or
Guaranteed by the Company or any Restricted Subsidiary unless such
loans have been repaid with cash on or prior to the date of
determination); plus
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(iii) to the extent not otherwise included in the calculation of
Consolidated Net Income for purposes of clause (i) above, 100% of (x)
any amount received in cash or Marketable Securities (upon conversion
thereof to cash within 30 days of receipt thereof) by the Company or
any Restricted Subsidiary as dividends, distributions or return of
capital from, or payment of interest or principal on any loan or
advance to, and (y) the aggregate amount of cash or Marketable
Securities (upon conversion thereof to cash within 30 days of receipt
thereof) received by the Company or any Restricted Subsidiary upon the
sale or other disposition of, the investee (other than an Unrestricted
Subsidiary) of any Investment made by the Company and the Restricted
Subsidiaries since the Issue Date (other than from an Investment in a
Restricted Subsidiary); provided, however, that the foregoing sum
shall not exceed, in the case of any investee (other than an
Unrestricted Subsidiary), the aggregate amount of Restricted
Investments previously made by the Company or any Restricted
Subsidiary in such investee subsequent to the Issue Date; plus
(iv) to the extent not otherwise included in the calculation of
Consolidated Net Income for purposes of clause (i) above, 100% of (x)
any amount received in cash by the Company or any Restricted
Subsidiary as dividends, distributions or return of capital from, or
payment of interest or principal on any loan or advance to, or upon
the sale or other disposition of the Capital Stock of, an Unrestricted
Subsidiary of the Company and (y) the fair market value of the net
assets of an Unrestricted Subsidiary of the Company, at the time such
Unrestricted Subsidiary is redesignated as a Restricted Subsidiary or
is merged, consolidated or amalgamated with or into, or is liquidated
into, the Company or any Restricted Subsidiary, multiplied by the
Company's proportionate interest in such Subsidiary; provided,
however, that the foregoing sum shall not exceed, in the case of any
Unrestricted Subsidiary, the aggregate amount of Restricted
Investments previously made by the Company or any Restricted
Subsidiary in such Unrestricted Subsidiary subsequent to the Issue
Date.
The provisions of the preceding paragraph will not prohibit:
(1) dividends paid within 60 days after the date of declaration if at
such date of declaration such dividend would have complied with this
Section 4.11;
(2) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Capital Stock of the Company or
Subordinated Obligations made by exchange for, or out of the proceeds of
the substantially concurrent issuance and sale of, Qualified Stock (other
than Capital Stock issued or sold to a Subsidiary of the Company or an
employee stock ownership plan, option plan or similar trust to the extent
such sale to an employee stock ownership plan, option plan
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or similar trust is financed by loans from or Guaranteed by the Company or
any Restricted Subsidiary unless such loans have been repaid with cash
prior to the date of determination) or a substantially concurrent cash
capital contribution to the Company; provided, however, that the Net Cash
Proceeds from such sale will be excluded from clause (c)(ii) of the
preceding paragraph;
(3) any purchase, repurchase, redemption, defeasance or other
acquisition or retirement for value of Subordinated Obligations made by
exchange for, or out of the proceeds of the substantially concurrent
Incurrence of, Subordinated Obligations that qualify as Refinancing
Indebtedness;
(4) repurchases of Capital Stock deemed to occur upon the exercise of
stock options if such Capital Stock represents a portion of the exercise
price thereof; provided, however, that such repurchases will be excluded
from subsequent calculations of the amount of Restricted Payments;
(5) so long as no Default or Event of Default has occurred and is
continuing, any purchase, repurchase, redemption or other acquisition of
Subordinated Obligations from Net Available Cash to the extent not
otherwise required to be applied pursuant to Section 4.13; provided,
however, that such purchase, repurchase, redemption of other acquisition
will be excluded in the calculation of the amount of Restricted Payments;
(6) so long as no Default or Event of Default has occurred and is
continuing (or would result therefrom) loans or advances to employees or
directors of the Company or any Subsidiary of the Company the proceeds of
which are used to purchase Qualified Stock (or repurchases of such Capital
Stock in exchange for cancellation of such loans or advances), in an
aggregate amount not in excess of $1,000,000 at any one time outstanding;
provided, however, that (a) the amount of such loans and advances will be
included in the calculation of the amount of Restricted Payments and (b)
the Net Cash Proceeds from any such sale of Qualified Stock of the Company
will be excluded from clause (c)(ii) of the preceding paragraph;
(7) any purchase, repurchase, redemption of other acquisition of (a)
Disqualified Stock of the Company made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Disqualified Stock of the
Company that qualifies as Refinancing Indebtedness or (b) Disqualified
Stock of a Restricted Subsidiary made by exchange for, or out of the
proceeds of the substantially concurrent sale of, Disqualified Stock of
such Restricted Subsidiary or the Company that qualifies as Refinancing
Indebtedness; provided, however, in each case under this clause (7) that
(i) such Refinancing Indebtedness is not issued or sold to a Subsidiary or
an employee stock ownership plan or similar trust to the extent such sale
to an employee stock ownership plan or similar trust is financed by loans
from or guaranteed by the Company or any Restricted Subsidiary unless such
loans have been repaid with cash
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on or prior to the date of determination, (ii) at the time of such
exchange, no Default or Event of Default shall have occurred and be
continuing or would result therefrom and (iii) such purchase, repurchase,
redemption or other acquisition will be excluded in the calculation of the
amount of Restricted Payments;
(8) upon the occurrence of a Change of Control and within 60 days
after the completion of the offer to repurchase the Notes pursuant to
Section 4.09 above (including the purchase of all Notes tendered), any
purchase, repurchase, redemption or other acquisition of Subordinated
Obligations required pursuant to the terms thereof as a result of such
Change of Control at a purchase, repurchase, redemption or other
acquisition price not to exceed 101% of the outstanding principal amount
thereof, plus accrued and unpaid interest thereon, if any; provided,
however, that (a) at the time of such purchase, repurchase, redemption or
other acquisition, no Default shall have occurred and be continuing (or
would result therefrom), (b) the Company would be able to Incur an
additional $1.00 of Indebtedness pursuant to the first paragraph of Section
4.10 after giving pro forma effect to such Restricted Payment, (c) such
purchase, repurchase, redemption or other acquisition is not made,
indirectly or indirectly, from the proceeds of (or made in anticipation of)
any Incurrence of Indebtedness by the Company or any Subsidiary and (d)
such purchase, repurchase, redemption or other acquisition will be included
in the calculation of the amount of Restricted Payments;
(9) purchases of Capital Stock of Restricted Subsidiaries from
minority Holders (other than Affiliates of the Company); provided, however,
that upon giving effect to any such purchase of Capital Stock of any
Restricted Subsidiary, such Subsidiary shall be a Guarantor; provided
further, however, that such purchases will be included in the calculation
of the amount of Restricted Payments;
(10) any Investment made by the exchange for, or out of the proceeds
of, a capital contribution in respect of or the substantially concurrent
sale of, Capital Stock (other than Disqualified Stock) of the Company to
the extent the net cash proceeds thereof are received by the Company (other
than from a Restricted Subsidiary of the Company); provided, however, that
the amount of such capital contribution or proceeds used to make such
Investment shall be excluded from the calculation of the amount of
Restricted Payments;
(11) repayment of all outstanding Indebtedness under the (a) Senior
Credit Agreement, dated as of March 16, 2000, as amended, between Nelson
Stud Welding, Inc., Progessive Stamping Co. (DE), Inc., the subsidiary
borrowers, the lenders and Bank One, NA, as Administrative Agent, (b)
Amended and Restated Credit Agreement, dated as of June 11, 1998, as
amended, among Fabri-Steel Products, Inc., the eligible subsidiaries,
Morgan Guaranty Trust Company, as Agent, (c) Senior Subordinated Credit
Agreement dated as of March 31, 1999, between Fabri-Steel Products, Inc.,
and Citigroup Mezzanine Partners, L.P., (d) Subordinated Credit
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Agreement, dated as of March 17, 2002, by and between FabriSteel Holdings,
Inc., and Citicorp Mezzanine Partners, L.P., (e) Swap Transaction Letter
Agreement, dated July 5, 2000, between Morgan Guaranty Trust Company of New
York and Fabri-Steel Products, Inc. and (f) Letter Agreement, dated
November 8, 2000, between Nelson Stud Welding, Inc. and Banc One, NA
(Chicago, Illinois) with respect to interest rate swaps; and
(12) Restricted Payments in an amount not to exceed $10,000,000 in the
aggregate.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of such Restricted Payment of the asset(s) or
securities proposed to be paid, transferred or issued by the Company or any
Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment.
The fair market value of any cash Restricted Payment shall be its face amount
and any non-cash Restricted Payment shall be determined conclusively by the
Board of Directors acting in good faith, whose resolution with respect thereto
shall be delivered to the trustee, such determination to be based upon an
opinion or appraisal issued by an accounting, appraisal or investment banking
firm of national standing if such fair market value is estimated to exceed
$10,000,000.
SECTION 4.12. Limitation on Liens.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, create, incur or suffer to exist any Lien (other
than Permitted Liens) upon any of its respective assets (including Capital
Stock), whether owned on the date of the indenture or acquired after that date,
which Lien secures any Indebtedness that ranks equally with, or is subordinate
to the Notes or any Subsidiary Guarantee in right of payment, unless
contemporaneously with the Incurrence of such Lien, effective provision is made
to secure the Indebtedness due under this Indenture and the Notes or any
Subsidiary Guarantees equally and ratably with or prior to such obligation with
a Lien on the same collateral for so long as such obligation is secured by such
Lien; provided, however, that, in the case of any Lien securing an obligation
that is subordinated in right of payment to the Notes or a Subsidiary Guarantee,
the Lien securing such Obligations, will also be subordinated by its terms to
the Notes or such Subsidiary Guarantee, as the case may be, at least to the same
extent.
SECTION 4.13. Limitation on Sales of Assets and Subsidiary Stock.
The Company will not, and will not permit any Restricted Subsidiary
to, make any Asset Disposition unless:
(1) the Company or such Restricted Subsidiary, as the case may be,
receives consideration at the time of such Asset Disposition at least equal
to the fair market value, as determined in good faith by the Board of
Directors (including as to the value of all non-cash consideration), of the
assets subject to such Asset Disposition;
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(2) at least 75% of the consideration from such Asset Disposition
received by the Company or such Restricted Subsidiary, as the case may be,
is in the form of cash or Cash Equivalents; and
(3) an amount equal to 100% of the Net Available Cash from such Asset
Disposition is applied within 360 days from the later of the date of such
asset Disposition or the receipt of such Net Available Cash:
(a) to prepay, repay or purchase Senior Debt or Guarantor Senior
Debt, including, without limitation, obligations under the Credit
Agreement; provided, however, that, in connection with any such
prepayment, repayment or purchase, the Company will cause the related
commitment (if any) to be permanently reduced in an amount equal to
the principal amount so prepaid, repaid or purchased;
(b) to repay any Indebtedness that was secured by the assets sold
in such Asset Disposition; and
(c) to invest in Additional Assets.
Any Net Available Cash from Asset Dispositions that is not applied or
invested as provided in the preceding paragraph will be deemed to constitute
"Excess Proceeds." On the 361st day after the later of the date of an Asset
Disposition or the receipt of Net Available Cash, if the aggregate amount of
Excess Proceeds exceeds $5,000,000, the Company will be required to make an
offer (an "Asset Disposition Offer") to all holders of Notes and to the extent
required by the terms of other Pari Passu Indebtedness, to all holders of other
Pari Passu Indebtedness outstanding with similar provisions requiring the
Company to make an offer to repurchase such Pari Passu Indebtedness with the
proceeds from any Asset Disposition ("Pari Passu Notes"), to repurchase the
maximum principal amount of Notes and any such Pari Passu Notes to which the
Asset Disposition Offer applies that may be repurchased out of the Excess
Proceeds, at an offer price in cash in an amount equal to 100% of the principal
amount of the Notes, plus accrued and unpaid interest, if any, to the date of
repurchase and the offer price for the Pari Passu Notes, in accordance with the
procedures set forth in the indenture or the agreements governing the Pari Passu
Notes, as applicable, in each case in integral multiples of $1,000. To the
extent that the aggregate amount of Notes and Pari Passu Notes so validly
tendered and not properly withdrawn pursuant to an Asset Disposition Offer is
less than the Excess Proceeds, the Company may use any remaining Excess Proceeds
for general corporate purposes, subject to the other provisions of this
Indenture. If the aggregate principal amount of Notes surrendered by holders
thereof and other Pari Passu Notes surrendered by holders or lenders,
collectively, exceeds the amount of Excess Proceeds, the trustee shall select
the Notes and Pari Passu Notes to be repurchased on a pro rata basis on the
basis of the aggregate principal amount of tendered Notes and Pari Passu Notes.
Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds
shall be reset at zero.
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The Asset Disposition Offer will remain open for a period of 20
Business Days following its commencement, except to the extent that a longer
period is required by applicable law (the "Asset Disposition Offer Period"). No
later than five Business Days after the termination of the Asset Disposition
Offer Period (the "Asset Disposition Purchase Date"), the Company will
repurchase the principal amount of Notes and Pari Passu Notes required to be
purchased pursuant to this covenant (the "Asset Disposition Offer Amount") or,
if less than the Asset Disposition Offer Amount has been so validly tendered,
all Notes and Pari Passu Notes validly tendered in response to the Asset
Disposition Offer.
Upon the commencement of an Asset Disposition Offer, the Company shall
send, by first class mail, a notice to the Trustee and to each Holder at its
registered address. The notice shall contain all instructions and materials
necessary to enable such Holder to tender Notes pursuant to the Asset
Disposition Offer. Any Asset Disposition Offer shall be made to all Holders. The
notice, which shall govern the terms of the Asset Disposition Offer, shall
state:
(1) that the Asset Disposition Offer is being made pursuant to this
Section 4.13 and that all Notes tendered and not withdrawn will be accepted
for payment;
(2) the purchase price (including the amount of accrued interest) and
the Asset Disposition Purchase Date;
(3) that any Note not tendered will continue to accrue interest;
(4) that, unless the Company defaults in making payment therefor, any
Note accepted for payment pursuant to the Asset Disposition Offer shall
cease to accrue interest after the Asset Disposition Payment Date;
(5) that Holders electing to have a Note purchased pursuant to a Asset
Disposition Offer will be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the reverse of the Note
completed, to the Paying Agent at the address specified in the notice prior
to the close of business on the third Business Day prior to the Asset
Disposition Payment Date;
(6) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than the second Business Day prior to the
Asset Disposition Payment Date, a telegram, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Notes the Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Note purchased;
(7) that Holders whose Notes are purchased only in part will be issued
new Notes in a principal amount equal to the unpurchased portion of the
Notes surrendered; and
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(8) the circumstances and relevant facts regarding such Asset
Disposition Offer.
On or before the Asset Disposition Purchase Date, the Company will, to
the extent lawful, accept for payment, on a pro rata basis to the extent
necessary, the Asset Disposition Offer Amount of Notes and Pari Passu Notes or
portions of Notes and Pari Passu Notes so validly tendered and not properly
withdrawn pursuant to the Asset Disposition Offer, or if less than the Asset
Disposition Offer Amount has been validly tendered and not properly withdrawn,
all Notes and Pari Passu Notes so validly tendered and not properly withdrawn,
in each case in integral multiples of $1,000. The Company will deliver to the
Trustee an Officers' Certificate stating that such Notes or portions thereof
were accepted for payment by the Company in accordance with the terms of this
Section 4.13 and, in addition, the Company will deliver all certificates and
Notes required, if any, by the agreements governing the Pari Passu Notes. The
Company or the Paying Agent, as the case may be, will promptly (but in any case
not later than five Business Days after the termination of the Asset Disposition
Offer Period) mail or deliver to each tendering Holder of Notes or holder or
lender of Pari Passu Notes, as the case may be, an amount equal to the
repurchase price of the Notes or Pari Passu Notes so validly tendered and not
properly withdrawn by such holder or lender, as the case may be, and accepted by
the Company for purchase, and the Company will promptly issue a new Note, and
the Trustee, upon delivery of an Officers' Certificate from the Company, will
authenticate and mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note surrendered; provided,
however, that each such new Note will be in a principal amount of $1,000 or an
integral multiple of $1,000. In addition, the Company will take any and all
other actions required by the agreements governing the Pari Passu Notes. Any
Note not so accepted will be promptly mailed or delivered by the Company to the
Holder thereof. The Company will publicly announce the results of the Asset
Disposition Offer on the Asset Disposition Purchase Date.
For the purposes of this covenant, the following will be deemed to be
cash:
(1) the assumption by the transferee of Indebtedness (other than
Subordinated Obligations or Disqualified Stock) of the Company or of any
Restricted Subsidiary of the Company that is a Guarantor and the release of
the Company or such Restricted Subsidiary from all liability on such
Indebtedness in connection with such Asset Disposition (in which case the
Company will, without further action, be deemed to have applied such deemed
cash to Indebtedness in accordance with clause (3)(a) above); and
(2) Notes or other securities received by the Company or any
Restricted Subsidiary of the Company from the transferee that are converted
promptly by the Company or such Restricted Subsidiary into cash.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act and any other securities laws
or regulations in connection
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with the repurchase of Notes pursuant to the indenture. To the extent that the
provisions of any securities laws or regulations conflict with provisions of
this Section 4.13, the Company will comply with the applicable securities laws
and regulations and will not be deemed to have breached its obligations under
this Indenture by virtue of any conflict.
SECTION 4.14. Limitation on Affiliate Transactions.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, enter into or conduct any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with or for the benefit of any Affiliate of the Company (an "Affiliate
Transaction") unless:
(1) the terms of such Affiliate Transaction are no less favorable to
the Company or such Restricted Subsidiary, as the case may be, than those
that could be obtained in a comparable transaction at the time of such
transaction in arm's-length dealings with a Person that is not an
Affiliate;
(2) in the event such Affiliate Transaction involves an aggregate
amount in excess of $2,000,000, the terms of such transaction have been
approved by a majority of the members of the Board of Directors of the
Company and by a majority of the disinterested members of such Board of
Directors, if any (and such majority or majorities, as the case may be,
determine that such Affiliate Transaction satisfies the criteria in clause
(1) above); and
(3) in the event such Affiliate Transaction involves an aggregate
amount in excess of $15,000,000, the Company has received a written opinion
from an independent investment banking, accounting or appraisal firm of
nationally recognized standing that such Affiliate Transaction is not
materially less favorable than those that might reasonably have been
obtained in a comparable transaction at such time on an arm's-length basis
from a Person that is not an Affiliate.
The preceding paragraph will not apply to:
(1) transactions exclusively between or among the Company and/or any
of its Restricted Subsidiaries; provided, however, in each case, such
transaction is not otherwise prohibited by the indenture and that no
Affiliate of the Company (other than another Restricted Subsidiary) owns
Capital Stock in any such Restricted Subsidiary;
(2) any agreement in effect on the Issue Date as in effect on the
Issue Date or as thereafter amended in a manner which is, taken as a whole,
in the good faith judgment of the Board of Directors of the Company not
materially less favorable to the Company or such Restricted Subsidiary than
the original agreement as in effect on the Issue Date;
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(3) any directors' fees, employment, compensation, benefit, incentive,
indemnity or similar agreements, arrangements or plans in respect of any
officer, director, employee or consultant of the Company or any Restricted
Subsidiary entered into in the ordinary course of business and approved by
the Board of Directors of the Company;
(4) loans and advances permitted by clause (7) of the definition of
"Permitted Investment";
(5) any transaction with a Unrestricted Subsidiary in the ordinary
course of business that complies with the requirements of clause (1) of the
first paragraph of this Section 4.14;
(6) the performance of obligations of the Company or any of its
Restricted Subsidiaries under the terms of any agreement to which the
Company or any of its Restricted Subsidiaries is a party on the Issue Date
and identified on a schedule to the indenture on the Issue Date, as these
agreements may be amended, modified or supplemented from time to time in
compliance with the first paragraph of this Section 4.14;
(7) customary commercial banking, investment banking, underwriting,
placement agent or financial advisory fees paid in connection with services
rendered to the Company or the Restricted Subsidiaries in the ordinary
course of business that complies with the requirements of clause (1) of the
first paragraph of this Section 4.14;
(8) the Advisory Agreement;
(9) purchase, lease, supply or similar agreements entered into in the
ordinary course of business between the Company or any Restricted
Subsidiaries and any Unrestricted Subsidiary or any Affiliate, so long as a
majority of the disinterested directors determine that any such agreement
is on terms no less favorable to the Company or the Restricted Subsidiary,
as applicable, than those that could have been obtained in a comparable
arm's-length transaction with Person that is not an Affiliate;
(10) the issuance and sale of Qualified Stock;
(11) any Restricted Payment (other than a Restricted Investment)
permitted to be made pursuant to Section 4.11; and
(12) transactions effected as part of a Permitted Securitization
Transaction.
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SECTION 4.15. Limitation on Restrictions on Distributions from Restricted
Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary
to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or consensual restriction on the ability of any
Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Capital Stock
or pay any Indebtedness or other obligations owed to the Company or any
Restricted Subsidiary;
(2) make any loans or advances to the Company or any Restricted
Subsidiary; or
(3) transfer any of its property or assets to the Company or any
Restricted Subsidiary.
The preceding provisions will not prohibit:
(i) any encumbrance or restriction pursuant to this Indenture or an
agreement in effect at or entered into on the date of this Indenture
(including, without limitation, this Indenture and the Credit Agreement in
effect on such date) or any encumbrance or restriction pursuant to any
Indebtedness Incurred after the Issue Date no more restrictive, taken as a
whole, than the encumbrances or restrictions pursuant to the Credit
Agreement or this Indenture;
(ii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to an agreement relating to any Indebtedness Incurred
by a Restricted Subsidiary before the date on which such Restricted
Subsidiary was acquired by the Company (other than Indebtedness Incurred as
consideration in, or to provide all or any portion of the funds utilized to
consummate, the transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted Subsidiary or was
acquired by the Company or in contemplation of such transaction) and
outstanding on such date;
(iii) any encumbrance or restriction with respect to a Restricted
Subsidiary pursuant to Refinancing Indebtedness or Indebtedness under the
Credit Agreement Incurred to refinance Indebtedness pursuant to an
agreement referred to in clause (i) or (ii) of this paragraph or this
clause (iii) or contained in any amendment to an agreement referred to in
clause (i) or (ii) of this paragraph or this clause (iii); provided,
however, that the encumbrances and restrictions with respect to such
Restricted Subsidiary contained in any such agreement or amendment are no
less favorable, taken as a whole, in any material respect to the holders of
the Notes than the encumbrances and restrictions contained in such
agreements referred to in clauses (i) and (ii) of this paragraph on the
Issue Date or the date such Restricted
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Subsidiary became a Restricted Subsidiary, whichever is applicable or are
ordinary and customary for a financing of that type and would not
materially adversely affect our ability to make payments on the Notes (in
each case as determined in good faith by the Board of Directors of the
Company);
(iv) in the case of clause (3) of the first paragraph of this Section
4.15, any encumbrance or restriction:
(A) that restricts in a customary manner the subletting, assignment or
transfer of any property or asset that is subject to a lease, license
or similar contract, or the assignment or transfer of any such lease,
license or other contract;
(B) contained in mortgages, pledges or other security agreements
securing Indebtedness of the Company or a Restricted Subsidiary to the
extent such encumbrances or restrictions restrict the transfer of the
property subject to such mortgages, pledges or other security
agreements; or
(C) pursuant to customary provisions restricting dispositions of real
property interests set forth in any reciprocal easement agreements of
the Company or any Restricted Subsidiary;
(v) purchase money obligations for property acquired in the ordinary
course of business that impose encumbrances or restrictions of the nature
described in clause (3) of the first paragraph of this Section 4.15 on the
property so acquired;
(vi) any restriction with respect to a Restricted Subsidiary (or any
of its property or assets) imposed pursuant to an agreement entered into
for the direct or indirect sale or disposition of all or substantially all
the Capital Stock or assets of such Restricted Subsidiary (or the property
or assets that are subject to such restriction) pending the closing of such
sale or disposition;
(vii) encumbrances or restrictions arising or existing by reason of
applicable law or any applicable rule, regulation or order;
(viii) any restriction with respect to a Restricted Subsidiary
contained in any agreement or instrument governing Capital Stock (other
than Disqualified Stock) of any Restricted Subsidiary that is in effect on
the date such Restricted Subsidiary is acquired by the Company (and is not
incurred in contemplation of such acquisition);
(ix) any encumbrance or restriction on cash or other deposits or net
worth imposed by customers under contracts entered into in the ordinary
course of business; and
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(x) any agreement or instrument placing contract restrictions or
restrictions applicable only to a Securitization Entity effected in
connection with or Liens on receivables or related assets which are the
subject of, a Permitted Securitization Transaction.
SECTION 4.16. Future Guarantors.
If, after the Issue Date, (a) the Company or one or more of its
Restricted Subsidiaries (other than a Securitization Entity) shall acquire or
create another Subsidiary (other than (x) a Subsidiary that has been designated
an Unrestricted Subsidiary or (y) a Foreign Subsidiary) or (b) any Unrestricted
Subsidiary is redesignated a Restricted Subsidiary (other than a Foreign
Subsidiary), then, in each such case, the Issuer shall cause such Restricted
Subsidiary (other than a Securitization Entity) to:
(1) execute and deliver to the Trustee (x) a supplemental indenture in
form and substance satisfactory to the Trustee pursuant to which such
Restricted Subsidiary shall unconditionally Guarantee, on a joint and
several basis, the full and prompt payment of the principal of, premium, if
any and interest on the Notes on a senior subordinated basis and (y) a
notation of guarantee in respect of its Subsidiary Guarantee; and
(2) deliver to the Trustee one or more Opinions of Counsel that such
supplemental indenture (x) has been duly authorized, executed and delivered
by such Restricted Subsidiary and (y) constitutes a valid and legally
binding obligation of such Restricted Subsidiary in accordance with its
terms.
SECTION 4.17. Limitations on Layering Indebtedness.
The Company will not, and will not permit any Restricted Subsidiary
to, directly or indirectly, Incur or suffer to exist any Indebtedness that is or
purports to be by its terms (or by the terms of any agreement governing such
Indebtedness) senior to the Notes or the Subsidiary Guarantee of such Restricted
Subsidiary and subordinated to any other Indebtedness of the Company or of such
Restricted Subsidiary, as the case may be.
SECTION 4.18. SEC Reports.
Notwithstanding that the Company may not be subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, to the extent permitted
by the Exchange Act, the Company will file with the Commission, and provide to
the Trustee and the Holders of the Notes, the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) that are
specified in Sections 13 and 15(d) of the Exchange Act within the time periods
specified therein; provided, however, that availability of the foregoing
materials on the Commission's EDGAR service shall be deemed to satisfy the
Company's delivery obligations hereunder. In the event that the Company is not
permitted to file such re-
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ports, documents and information with the Commission pursuant to the Exchange
Act, the Company will nevertheless provide such Exchange Act information to the
Trustee and the Holders of the Notes as if the Company were subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act within the
time periods specified therein.
If the Company has designated any of its Subsidiaries as Unrestricted
Subsidiaries, then the quarterly and annual financial information required by
the preceding paragraph will include a reasonably detailed presentation, either
on the face of the financial statements or in the footnotes to the financial
statements, and in "Management's Discussion and Analysis of Financial Condition
and Results of Operations," of the financial condition and results of operations
of the Company and the Restricted Subsidiaries.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers' Certificates).
SECTION 4.19. Limitation on Sales of Capital Stock of Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary
(other than a Securitization Entity) to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of any Restricted Subsidiary or to issue
any Capital Stock of any Restricted Subsidiary (other than, if necessary, shares
of Capital Stock constituting directors' qualifying shares) to any Person
except:
(1) to the Company or a Wholly-Owned Subsidiary; or
(2) in compliance with Section 4.13 and immediately after giving
effect to such issuance or sale, such Restricted Subsidiary either
continues to be a Restricted Subsidiary or if such Restricted Subsidiary
would no longer be a Restricted Subsidiary, then the Investment of the
Company in such Person (after giving effect to such issuance or sale) would
have been permitted to be made under Section 4.11 as if made on the date of
such issuance or sale.
Notwithstanding the preceding paragraph, the Company may sell all the
Capital Stock of a Restricted Subsidiary as long as the Company complies with
the terms of Section 4.13 and may create Liens that are Permitted Liens.
SECTION 4.20. Limitation on Lines of Business.
The Company will not, and will not permit any Restricted Subsidiary
to, engage in any business other than a Related Business.
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ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation, Etc.
(a) The Company will not consolidate with or merge with or into, or
sell, lease, convey, assign, transfer or otherwise dispose of all or
substantially all its assets to, any Person, unless:
(1) the resulting, surviving or transferee Person (the "Successor
Company") will be a corporation or limited liability company organized and
existing under the laws of the United States of America, any State of the
United States of America or the District of Columbia and the Successor
Company (if not the Company) will expressly assume, by supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all the obligations of the Company under the Notes, this
Indenture and the Registration Rights Agreement;
(2) immediately after giving effect to such transaction (including any
Indebtedness Incurred and Liens Incurred or granted in connection
therewith), no Default has occurred and is continuing;
(3) immediately after giving effect to such transaction, the Successor
Company would be able to Incur at least an additional $1.00 of Indebtedness
pursuant to the Coverage Ratio Exception;
(4) each Guarantor (unless it is the other party to the transactions
above, in which case clause (1) above shall apply) shall have by
supplemental indenture confirmed that its Subsidiary Guarantee shall apply
to such Person's obligations in respect of this Indenture and the Notes and
its obligations under the Registration Rights Agreement shall continue to
be in effect; and
(5) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture (if any)
comply with this Indenture.
(b) Except as provided in Article Eleven, no Guarantor may consolidate
with or merge with or into (whether or not such Guarantor is the Successor
Company) another Person, whether or not Affiliated with such Guarantor, unless:
(1) the Successor Company will be a corporation or limited liability
company organized and existing under the laws of the United States of
America, any State of the United States of America or the District of
Columbia and the Successor Company (if not such Guarantor) will expressly
assume, by supplemental indenture,
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executed and delivered to the Trustee, in form satisfactory to the Trustee,
all the obligations of such Guarantor under the Subsidiary Guarantee of
such Guarantor and the Registration Rights Agreement; and
(2) immediately after giving effect to such transaction (including any
Indebtedness Incurred and Liens Incurred or granted in connection
therewith), no Default has occurred and is continuing.
(c) Upon any consolidation or merger of the Company or a Guarantor, or
any transfer of all or substantially all of the assets of the Company in
accordance with the foregoing, in which the Company or such Guarantor is not the
continuing obligor under the Notes or its Subsidiary Guarantee, as the case may
be, the Surviving Company formed by such consolidation or into which the Company
or such Guarantor is merged or to which the conveyance, lease or transfer is
made will succeed to, and be substituted for, and may exercise every right and
power of, the Company or such Guarantor under this Indenture, the Notes and the
Subsidiary Guarantees with the same effect as if such Surviving Company had been
named therein as the Company or such Guarantor and, except in the case of a
conveyance, transfer or lease, the Company or such Guarantor, as the case may
be, will be released from the obligation to pay the principal of and interest on
the Notes or in respect of its Subsidiary Guarantee, as the case may be, and all
of the Company's or such Guarantor's other obligations and covenants under the
Notes, this Indenture and its Subsidiary Guarantee, if applicable.
(d) For purposes of this Article V, the sale, lease, conveyance,
assignment, transfer or other disposition of all or substantially all of the
assets of one or more Subsidiaries of the Company, which assets, if held by the
Company instead of such Subsidiaries, would constitute all or substantially all
of the assets of the Company on a consolidated basis, shall be deemed to be the
transfer of all or substantially all of the assets of the Company.
(e) Notwithstanding clause (3) of Section 5.01(a), (x) any Restricted
Subsidiary may consolidate with, merge into or transfer all or part of its
assets to the Company or a Wholly-Owned Subsidiary of the Company and (y) the
Company may merge with an Affiliate incorporated solely for the purpose, and
with the effect, of reincorporating the Company in another jurisdiction to
realize tax or other benefits.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following is an "Event of Default":
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(1) default by the Company in any payment of interest (including
Additional Interest as required by the Registration Rights Agreement) on
any Note when due and payable, continued for 30 days (whether or not such
payment is prohibited by the subordination provisions of this Indenture);
(2) default by the Company in the payment of principal of or premium,
if any, on any Note when due and payable at its Stated Maturity, upon
optional redemption, upon required repurchase, upon declaration or
otherwise (whether or not such payment is prohibited by the subordination
provisions of this Indenture);
(3) failure by the Company or any Guarantor to comply with its
obligations described in Article V;
(4) failure by the Company to comply for 30 days after the notice
specified below with any of its obligations under Article Four (other than
a failure to repurchase Notes when required pursuant to Section 4.09 or
4.13, which will constitute an Event of Default under clause (2) above);
(5) failure by the Company to comply for 60 days after the notice
specified below with its other agreements contained in this Indenture;
(6) 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 Restricted Subsidiary
(or the payment of which is Guaranteed by the Company or any Restricted
Subsidiary), other than Indebtedness owed to the Company or a Restricted
Subsidiary, whether such Indebtedness or Guarantee now exists or is created
after the date of this Indenture, which default:
(a) is caused by a failure to pay principal of, or interest or
premium, if any, on such Indebtedness before the expiration of the
grace period provided in such Indebtedness; or
(b) results in the acceleration of such Indebtedness before its
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 Payment Default or the maturity of which has been so
accelerated, aggregates $5,000,000 or more;
(7) a court having jurisdiction in the premises enters (a) a decree or
order for relief in respect of the Company or any of its Significant
Subsidiaries or group of Restricted Subsidiaries that, taken together (as
of the latest available financial statements for the Company and the
Restricted Subsidiaries), would constitute a Signifi-
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cant Subsidiary in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar
law or (b) a decree or order adjudging the Company or any of its
Significant Subsidiaries or group of Restricted Subsidiaries that, taken
together (as of the latest available financial statements for the Company
and the Restricted Subsidiaries), would constitute a Significant Subsidiary
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any of its Significant Subsidiaries or group of Restricted
Subsidiaries that, taken together (as of the latest available financial
statements for the Company and the Restricted Subsidiaries), would
constitute a Significant Subsidiary under any applicable Federal or state
law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any of its
Significant Subsidiaries or group of Restricted Subsidiaries that, taken
together (as of the latest available financial statements for the Company
and the Restricted Subsidiaries), would constitute a Significant Subsidiary
or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and any such decree or order of the type in
clause (a) or (b) above remains unstayed and in effect for a period of 60
consecutive days;
(8) the Company or any of its Significant Subsidiaries or group of
Restricted Subsidiaries that, taken together (as of the latest available
financial statements for the Company and the Restricted Subsidiaries),
would constitute a Significant Subsidiary:
(a) commences a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or any other case or proceeding to be adjudicated a
bankrupt or insolvent; or
(b) consents to the entry of a decree or order for relief in
respect of the Company or any of its Significant Subsidiaries or group
of Restricted Subsidiaries that, taken together (as of the latest
available financial statements for the Company and the Restricted
Subsidiaries), would constitute a Significant Subsidiary in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding
against the Company or any of its Significant Subsidiaries or group of
Restricted Subsidiaries that, taken together (as of the latest
available financial statements for the Company and the Restricted
Subsidiaries), would constitute a Significant Subsidiary; or
(c) files a petition or answer or consent seeking reorganization
or relief under any applicable Federal or state law; or
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(d) consents to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or
any of its Significant Subsidiaries or group of Restricted
Subsidiaries that, taken together (as of the latest available
financial statements for the Company and the Restricted Subsidiaries),
would constitute a Significant Subsidiary or of any substantial part
of its property; or
(e) makes an assignment for the benefit of creditors; or
(f) admits in writing its inability to pay its debts generally as
they become due;
(9) failure by the Company or any Significant Subsidiary or group of
Restricted Subsidiaries that, taken together (as of the latest available
financial statements for the Company and the Restricted Subsidiaries),
would constitute a Significant Subsidiary to pay final judgments
aggregating in excess of $5,000,000 or its foreign currency equivalent (net
of any amounts for which a reputable and creditworthy insurance company has
acknowledged liability in writing), which judgments are not paid,
discharged or stayed for a period of 60 days; or
(10) any Subsidiary Guarantee ceases to be in full force and effect
(except as contemplated by the terms of the Subsidiary Guarantee and this
Indenture) or is declared null and void in a judicial proceeding or any
Guarantor denies or disaffirms its obligations under this Indenture or its
Subsidiary Guarantee.
Notwithstanding anything to the contrary herein, a Default under clause (4) or
(5) of this Section 6.01 will not constitute an Event of Default until the
Trustee or the Holders of at least 25% in principal amount of the outstanding
Notes notify the Company of the Default and the Company does not cure such
Default within the time specified in such clause (4) or (5) after the receipt of
such notice.
SECTION 6.02. Acceleration.
In the case of an Event of Default arising from either Section 6.01(7)
or (8) with respect to the Company, all outstanding Notes will become due and
payable immediately without further action or notice. If any other Event of
Default occurs and is continuing, the Trustee, by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding Notes, by
notice to the Company and the Trustee, may declare all the Notes to be due and
payable immediately.
At any time after a declaration of acceleration with respect to the
Notes as described in the preceding paragraph, the Holders of a majority in
principal amount of the Notes, by notice to the Trustee, may rescind and cancel
such declaration and its consequences:
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(1) if the rescission would not conflict with any judgment or decree
of a court of competent jurisdiction; and
(2) if all existing Defaults have been cured or waived except
nonpayment of principal, premium or interest that has become due solely
because of the acceleration;
(3) to the extent the payment of such interest is lawful, interest on
overdue installments of overdue principal, premium and interest, which has
become due otherwise than by such declaration of acceleration, has been
paid;
(4) if the Company has paid the Trustee its reasonable compensation
and reimbursed the Trustee for its expenses, disbursements and advances;
and
(5) in the event of the cure or waiver of a Default of the type set
forth in Section 6.01(7) or (8), the Trustee shall have received an
Officers' Certificate and an Opinion of Counsel that such Default has been
cured or waived.
No such waiver or rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies.
If a Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment of
principal of or interest on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon a Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
Subject to Sections 2.09, 6.07 and 9.02, the Holders of a majority in
principal amount of the outstanding Notes by notice to the Trustee may waive an
existing Default and its consequences, except a Default in the payment of
principal of or premium, if any, or interest on any Note as specified in Section
6.01(1) or (2). The Company shall deliver to the Trustee an Officers'
Certificate stating that the requisite percentage of Holders have consented to
such waiver and attaching copies of such consents. When a Default is waived, it
is cured and ceases.
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SECTION 6.05. Control by Majority.
The Holders of not less than a majority in principal amount of the
outstanding Notes may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. Subject to Section 7.01, however, the Trustee may refuse
to follow any direction that conflicts with any law or this Indenture, that the
Trustee determines may be unduly prejudicial to the rights of another
Noteholder, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction
pursuant to this Indenture, the Trustee shall be entitled to indemnification
against any loss or expense caused by taking or not taking such action or
following or not following such direction.
SECTION 6.06. Limitation on Suits.
A Noteholder may not pursue any remedy with respect to this Indenture
or the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holder or Holders of at least 25% in principal amount of the
outstanding Notes have made a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer and provide to the Trustee reasonable
security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer and the provision of indemnity; and
(5) during such 60-day period the Holder or Holders of a majority in
principal amount of the outstanding Notes do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
A Noteholder may not use this Indenture to prejudice the rights of
another Noteholder or to obtain a preference or priority over such other
Noteholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder to receive payment of principal, premium and interest on a Note, on
or after the respective due dates expressed in such Note, or to bring suit for
the enforcement of any such payment
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on or after such respective dates, shall not be impaired or affected without the
consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
If a Default in payment of principal or interest specified in Section
6.01(1) or (2) occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company or any other
obligor on the Notes for the whole amount of principal and accrued interest and
fees remaining unpaid, together with interest on overdue principal and, to the
extent that payment of such interest is lawful, interest on overdue installments
of interest, in each case at the rate per annum borne by the Notes and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relating to the Company, its
creditors or its property and shall be entitled and empowered to collect and
receive any monies or other property payable or deliverable on any such claims
and to distribute the same, and any Custodian in any such judicial proceedings
is hereby authorized by each Noteholder 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 Noteholders, to pay to the Trustee any amount due to it for the
compensation, expenses, disbursements and advances of the Trustee, its agent and
counsel, and any other amounts due the Trustee under Section 7.07. Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Noteholder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceeding. The Trustee shall be
entitled to participate as a member of any official committee of creditors in
the matters as it deems necessary or advisable.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article
Six, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for interest accrued on the Notes, ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Notes for interest;
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Third: to Holders for principal and premium due and unpaid on the
Notes, ratably, without preference or priority of any kind, according to
the amounts due and payable on the Notes for principal and premium; and
Fourth: to the Company or, if applicable, the Guarantors, as their
respective interests may appear.
The Trustee, upon prior notice to the Company, may fix a record date
and payment date for any payment to Noteholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the outstanding Notes.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If a 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 their exercise as a prudent Person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of a Default:
(1) the Trustee need perform only those duties as are specifically set
forth herein or in the TIA and no duties, covenants, responsibilities or
obligations shall be implied in this Indenture against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates (including Officers'
Certificates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, in
the case of any such certificates or opinions which by
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any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) Notwithstanding anything to the contrary herein, the Trustee may
not be relieved from liability for its own negligent action, its own negligent
failure to act, or its own bad faith or willful misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or take any action at the request or direction of Holders
if it shall have reasonable grounds for believing that repayment of such funds
is not assured to it.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to this Section
7.01.
(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.
(g) The Trustee shall not be responsible for the application of any
money by any Paying Agent other than the Trustee.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely conclusively on any document believed by it
to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting with respect to
any matters contemplated by this Indenture or the Notes, it may require an
Officers' Cer-
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tificate and an Opinion of Counsel, which shall conform to the provisions
of Section 12.05. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent (other than an
agent who is an employee of the Trustee) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel of its selection and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection from liability in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate (including any
Officers' Certificate), statement, instrument, opinion (including any
Opinion of Counsel), notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled, upon reasonable notice to
the Company, to examine the books, records, and premises of the Company,
personally or by agent or attorney at the sole cost of the Company.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as duties.
(j) The Trustee shall not be deemed to have notice of any Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and
such notice references the Notes and this Indenture.
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(k) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company, its
Subsidiaries or their respective Affiliates with the same rights it would have
if it were not Trustee. Any Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes, and it shall
not be responsible for any statement of the Company in this Indenture or any
document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee's certificate of authentication. The Trustee makes
no representations with respect to the effectiveness or adequacy of this
Indenture.
SECTION 7.05. Notice of Default.
If a Default occurs and is continuing and the Trustee receives actual
notice of such Default, the Trustee shall mail to each Noteholder notice of the
uncured Default within 90 days after such Default occurs. Except in the case of
a Default in payment of principal of, or interest on, any Note, including an
accelerated payment and the failure to make payment on the Change of Control
Payment Date pursuant to a Change of Control Offer or the Asset Disposition
Purchase Date pursuant to an Asset Disposition Offer, the Trustee may withhold
the notice if and so long as the Board of Directors, the executive committee, or
a trust committee of directors and/or Responsible Officers, of the Trustee in
good faith determines that withholding the notice is in the interest of the
Noteholders.
SECTION 7.06. Reports by Trustee to Holders.
Within 60 days after each November 15, beginning with November 15,
2003, the Trustee shall, to the extent that any of the events described in TIA
(S) 313(a) occurred within the previous twelve months, but not otherwise, mail
to each Noteholder a brief report dated as of such date that complies with TIA
(S) 313(a). The Trustee also shall comply with TIA (S)(S) 313(b), 313(c) and
313(d).
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A copy of each report at the time of its mailing to Noteholders shall
be mailed to the Company and filed with the Commission and each securities
exchange, if any, on which the Notes are listed.
The Company shall notify the Trustee if the Notes become listed on any
securities exchange or of any delisting thereof and the Trustee shall comply
with TIA (S) 313(d).
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for its 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 upon request for all reasonable disbursements,
expenses and advances (including reasonable fees and expenses of counsel)
incurred or made by it in addition to the compensation for its services, except
any such disbursements, expenses and advances as may be attributable to the
Trustee's negligence, bad faith or willful misconduct. Such expenses shall
include the reasonable fees and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee or any predecessor
Trustee and its agents, employees, officers, stockholders and directors for, and
hold them harmless against, any and all loss, damage, claims including taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee), liability or expense incurred by them except for such actions to the
extent caused by any negligence, bad faith or willful misconduct on their part,
arising out of or in connection with the acceptance or administration of this
trust including the reasonable costs and expenses of defending themselves
against or investigating any claim or liability in connection with the exercise
or performance of any of the Trustee's rights, powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee or any of its agents, employees, officers, stockholders and directors
for which it may seek indemnity. The Company may, subject to the approval of the
Trustee (which approval shall not be unreasonably withheld), defend the claim
and the Trustee shall cooperate in the defense. The Trustee and its agents,
employees, officers, stockholders and directors subject to the claim may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel; provided, however, that the Company will not be required to pay
such fees and expenses if, subject to the approval of the Trustee (which
approval shall not be unreasonably withheld), it assumes the Trustee's defense
and there is no conflict of interest between the Company and the Trustee and its
agents, employees, officers, stockholders and directors subject to the claim in
connection with such defense as reasonably determined by the Trustee. The
Company need not pay for any settlement made without its written consent. The
Company need not reimburse any expense or indemnify against any loss or
liability to the extent incurred by the Trustee through its negligence, bad
faith or willful misconduct.
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To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a senior claim prior to the Notes against all money or
property held or collected by the Trustee, in its capacity as Trustee. The
obligations of the Company and the Guarantors under this Section 7.07 shall not
be subordinated to the payment of Senior Debt pursuant to Article Ten or
Guarantor Senior Debt pursuant to Section 11.02 except assets or money held in
trust to pay principal of or interest on particular Notes.
When the Trustee incurs expenses or renders services after a Default
specified in Section 6.01(7) or (8) occurs, such expenses and the compensation
for such services shall be paid to the extent allowed under any Bankruptcy Law.
Notwithstanding any other provision in this Indenture, the foregoing
provisions of this Section 7.07 shall survive the satisfaction and discharge of
this Indenture or the appointment of a successor Trustee.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in
writing. The Holders of a majority in principal amount of the outstanding Notes
may remove the Trustee by so notifying the Company and the Trustee and may
appoint a successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall notify each Holder of such
event and shall promptly appoint a successor Trustee. Within one year after the
successor Trustee takes office, the Holders of a majority in principal amount of
the Notes may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer, after payment of all sums then owing to the
Trustee pursuant to Section 7.07, all property held by it as Trustee to the
successor Trustee, subject to the Lien provided in Section 7.07, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Noteholder.
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If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee at the expense of the Company.
If the Trustee fails to comply with Section 7.10, any Noteholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided, however, that
such corporation shall be otherwise qualified and eligible under this Article
Seven.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirement of TIA (S)(S) 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee shall
have a combined capital and surplus of at least $75,000,000 as set forth in its
most recent published annual report of condition. In addition, if the Trustee is
a corporation included in a bank holding company system, the Trustee,
independently of the bank holding company, shall meet the capital requirements
of TIA (S) 310(a)(2). The Trustee shall comply with TIA (S) 310(b); provided,
however, that there shall be excluded from the operation of TIA (S) 310(b)(1)
any indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are outstanding,
if the requirements for such exclusion set forth in TIA (S) 310(b)(1) are met.
The provisions of TIA (S) 310 shall apply to the Company and any other obligor
of the Notes.
SECTION 7.11. Preferential Collection of Claims Against the Company.
The Trustee, in its capacity as Trustee hereunder, shall comply with
TIA (S) 311(a), excluding any creditor relationship listed in TIA (S) 311(b). A
Trustee who has resigned or been removed shall be subject to TIA (S) 311(a) to
the extent indicated.
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ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
The Company may terminate its obligations under the Notes and this
Indenture, except those obligations referred to in the penultimate paragraph of
this Section 8.01, if all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid) have been
delivered to the Trustee for cancellation and the Company has paid all sums
payable by it hereunder, or if:
(a) either (i) pursuant to Article Three, the Company shall have given
notice to the Trustee and mailed a notice of redemption to each Holder of
the redemption of all of the Notes in accordance with the provisions hereof
or (ii) all Notes have otherwise become or will become due and payable;
(b) the Company shall have irrevocably deposited or caused to be
deposited with the Trustee or a trustee satisfactory to the Trustee, under
the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust solely for the benefit
of the Holders of that purpose, U.S. Legal Tender or U.S. Government
Obligations, or a combination thereof, in such amount as is, in the opinion
of a nationally recognized firm of independent public accountants,
sufficient without consideration of reinvestment of such interest, to pay
principal of, premium, if any, and interest on the outstanding Notes to
maturity or redemption; provided, however, that the Trustee shall have been
irrevocably instructed to apply such U.S. Legal Tender or U.S. Government
Obligations, or a combination thereof, to the payment of said principal,
premium, if any, and interest with respect to the Notes; and provided
further, however, that from and after the time of deposit, the U.S. Legal
Tender or U.S. Government Obligations, or combination thereof, deposited
shall not be subject to the rights of holders of Senior Debt pursuant to
the provisions of Article Ten or Guarantor Senior Debt pursuant to the
provisions of Section 11.02 and the Holders shall have a valid, perfected,
exclusive security interest in such deposit;
(c) no Default with respect to this Indenture or the Notes shall have
occurred and be continuing on the date of such deposit or shall occur as a
result of such deposit (other than a Default resulting from borrowing of
funds to be applied to such deposit) and such deposit will not result in a
breach or violation of, or constitute a default under, this Indenture, the
Credit Agreement or any other material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which it is bound;
(d) the Company shall have paid all other sums payable by it
hereunder; and
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(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent providing for or relating to the termination of the Company's
obligations under the Notes and this Indenture have been complied with.
Such Opinion of Counsel shall also state that such satisfaction and
discharge does not result in a default under the Senior Credit Facility or
any other material agreement or instrument then known to such counsel that
binds or affects the Company.
Subject to the next sentence and notwithstanding the foregoing
paragraph, the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01,
4.02, 7.07, 8.05 and 8.06 shall survive until the Notes are no longer
outstanding pursuant to the last paragraph of Section 2.08. After the Notes are
no longer outstanding, the Company's obligations in Sections 7.07, 8.05 and 8.06
shall survive.
After such delivery or irrevocable deposit, the Trustee upon request
shall acknowledge in writing the discharge of the Company's obligations under
the Notes and this Indenture except for those surviving obligations specified
above.
SECTION 8.02. Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option by Board Resolution of the Board of
Directors of the Company, at any time, elect to have either paragraph (b) or (c)
below be applied to all outstanding Notes upon compliance with the conditions
set forth in Section 8.03.
(b) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (b), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.03, be deemed to have been
discharged from its obligations with respect to all outstanding Notes 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 Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.04 hereof and the other Sections of this Indenture
referred to in (i) and (ii) below, and to have satisfied all its other
obligations under such Notes and this Indenture and the Guarantors shall be
deemed to have satisfied all of their obligations under the Subsidiary
Guarantees 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:
(i) the rights of Holders of outstanding Notes to receive, solely from
the trust fund described in Section 8.04 hereof, and as more fully set
forth in such Section 8.04, payments in respect of the principal of,
premium, if any, and interest on such Notes when such payments are due;
(ii) the Company's obligations with respect to such Notes under
Article Two and Section 4.02 hereof;
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(iii) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection therewith; and
(iv) this Article Eight.
Subject to compliance with this Article Eight, the Company may
exercise its option under this Section 8.02(b) notwithstanding the prior
exercise of its option under Section 8.02(c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company and the Guarantors shall,
subject to the satisfaction of the conditions set forth in Section 8.03 hereof,
be released from their respective obligations under the covenants contained in
Sections 4.03 (with respect to Restricted Subsidiaries only), 4.04, 4.05, 4.07
and 4.09 through 4.20 and clause (3) or (4) of Section 5.01(a) hereof with
respect to the outstanding Notes on and after the date the conditions set forth
in Section 8.03 are satisfied (hereinafter, "Covenant Defeasance"), and the
Notes shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes and the Guarantees, the Company and the Guarantors may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any 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 an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under paragraph (a) hereof of the option applicable to this
paragraph (c), subject to the satisfaction of the conditions set forth in
Section 8.03 hereof, clauses (3) (solely with respect to the failure of the
Company to comply with clause (3) or (4) of Section 5.01(a)), (4), (5), (6),
(7), (8) and (9) of Section 6.01 hereof shall not constitute Events of Default.
SECTION 8.03. Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02(b) or 8.02(c) hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Notes, cash in U.S. Legal Tender,
U.S. Government Obligations, or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any,
and interest on the outstanding Notes on the Stated
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Maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Notes are being defeased to maturity or to
a particular redemption date;
(2) in the case of an election under Section 8.02(b) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
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 Notes will not recognize income, gain or loss
for federal income tax purposes as a result of such Legal Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(3) in the case of an election under Section 8.02(c) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for Federal
income tax purposes as a result of such Covenant Defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance
had not occurred;
(4) no Default shall have occurred and be continuing either: (a) on
the date of such deposit (other than a Default resulting from the borrowing
of funds to be applied to such deposit), or (b) insofar as Events of
Default from bankruptcy or insolvency events are concerned, at any time in
the period ending on the 91st day after the date of deposit; provided,
however, that such Legal Defeasance or Covenant Defeasance, as the case may
be, shall be deemed to have occurred on the date of such deposit, subject
to an Event of Default from bankruptcy or insolvency within such 91-day
period;
(5) such Legal Defeasance or Covenant Defeasance will 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 Restricted Subsidiaries is a party or by which the Company or
any of its Restricted Subsidiaries is bound;
(6) the Company must deliver to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Notes over the other creditors of the Company
with the intent of defeating, hindering, delaying or defrauding creditors
of the Company or others; and
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(7) the Company must deliver to the Trustee an Officers' Certificate
and an Opinion of Counsel stating that all conditions precedent relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
SECTION 8.04. Application of Trust Money.
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender and
U.S. Government Obligations deposited with it pursuant to this Article Eight,
and shall apply the deposited U.S. Legal Tender and the money from U.S.
Government Obligations in accordance with this Indenture to the payment of
principal of and interest on the Notes. The Trustee shall be under no obligation
to invest said U.S. Legal Tender and U.S. Government Obligations except as it
may agree in writing with the Company.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Legal Tender and U.S.
Government Obligations deposited pursuant to Section 8.03 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article Eight to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company's
request any U.S. Legal Tender and U.S. Government Obligations held by it as
provided in Section 8.03 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 8.05. Repayment to the Company.
Subject to this Article Eight, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess U.S. Legal Tender and U.S.
Government Obligations held by them at any time and thereupon shall be relieved
from all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years; provided, however,
that the Trustee or such Paying Agent, before being required to make any
payment, may at the expense of the Company cause to be published once in a
newspaper of general circulation in the City of New York or mail to each Holder
entitled to such money notice that such money remains unclaimed and that after a
date specified therein which shall be at least 30 days from the date of such
publication or mailing any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person.
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SECTION 8.06. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with this Article Eight by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Eight until such time as the Trustee or Paying Agent is permitted
to apply all such U.S. Legal Tender and U.S. Government Obligations in
accordance with this Article Eight; provided, however, that if the Company has
made any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the U.S. Legal Tender
and U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
Subject to Section 9.03, the Company, the Guarantors and the Trustee,
together, may amend or supplement this Indenture, the Notes or the Subsidiary
Guarantees without notice to or consent of any Noteholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for uncertificated Notes in addition to or in place of
certificated Notes; provided, however, that the uncertificated Notes are
issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Notes are described in Section
163(f)(2)(B) of the Code;
(3) to add Subsidiary Guarantees;
(4) to secure the Notes;
(5) to provide for the assumption of the Company's obligations to
Holders of Notes in the case of a merger or consolidation or sale of all or
substantially all of the Company's assets;
(6) to make any change that would provide any additional rights or
benefits to the Holders of Notes or surrender any power conferred upon the
Company;
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(7) to make any change that would not adversely affect the rights of
any Holder;
(8) to comply with requirements of the Commission in order to effect
or maintain the qualification of this Indenture under the TIA; or
(9) to provide for the issuance of the Exchange Securities or any
other Notes issued under this Indenture in accordance with Section 2.02;
provided, however, that the Company has delivered to the Trustee an Officers'
Certificate stating that such amendment or supplement complies with the
provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
(a) Subject to Sections 6.07 and 9.03, the Company, the Guarantors and
the Trustee, together, with the written consent of the Holder or Holders of a
majority in aggregate principal amount of the outstanding Notes, may amend or
supplement this Indenture, the Notes or the Subsidiary Guarantees, without
notice to any other Noteholders. Subject to Sections 6.07 and 9.03, the Holder
or Holders of a majority in aggregate principal amount of the outstanding Notes
may waive compliance with any provision of this Indenture, the Notes or the
Subsidiary Guarantees without notice to any other Noteholders.
(b) Notwithstanding Section 9.02(a), without the consent of each
Noteholder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not (with respect to any Notes held by a
non-consenting Holder):
(1) reduce the principal amount of Notes whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the principal of or change or have the effect of changing
the fixed maturity of any Note or alter the provisions with respect to the
redemption of the Notes;
(3) reduce the rate of or change the time for payment of interest on
any Note;
(4) make any Note payable in money other than that stated in the
Notes;
(5) impair or affect the right of any Holder of Notes to receive
payment of principal of and interest on the Notes on or after the due dates
therefor or to institute suit for payment for the enforcement of any such
payment on or after the due dates therefor, or make any changes in the
provisions of this Indenture permitting Holders of a majority in principal
amount of Notes to waive any past Default and its consequences;
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(6) release any Guarantor from any of its obligations under its
Subsidiary Guarantee or this Indenture otherwise than in accordance with
the terms of this Indenture;
(7) make any change to Article Ten or Section 11.02 (including the
related definitions) that adversely affects the rights of the Holders of
the Notes; or
(8) make any change in the preceding amendment and waiver provisions
which require each Holder's consent.
(c) It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver but it shall be sufficient if such consent approves the
substance thereof.
(d) After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders 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 amendment, supplement or
waiver.
SECTION 9.03. Effect on Senior Debt.
No amendment of, or supplement or waiver to, this Indenture shall
adversely affect the rights of any holder of Senior Debt under Article Ten or
Guarantor Senior Debt under Section 11.02 and the defined terms as used therein
without the consent of such holder or its Representative.
SECTION 9.04. Compliance with TIA.
From the date on which this Indenture is qualified under the TIA,
every amendment, waiver or supplement of this Indenture, the Notes or the
Subsidiary Guarantees shall comply with the TIA as then in effect.
SECTION 9.05. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder or subsequent Holder may revoke the consent as to
his Note or portion of his Note by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Notes have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
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The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver. If a record date is fixed, then notwithstanding the last
sentence of the immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled to revoke any consent previously given, whether or not such
Persons continue to be Holders after such record date. No such consent shall be
valid or effective for more than 90 days after such record date. The Company
shall inform the Trustee in writing of the fixed record date if applicable.
After an amendment, supplement or waiver becomes effective, it shall
bind every Noteholder, unless it makes a change described in any of clauses (1)
through (9) of Section 9.02(b), in which case, the amendment, supplement or
waiver shall bind only each Holder of a Note who has consented to it and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note; provided, however, that any such waiver shall not
impair or affect the right of any Holder to receive payment of principal of and
interest on a Note, on or after the respective due dates therefor, or to bring
suit for the enforcement of any such payment on or after such respective dates
without the consent of such Holder.
SECTION 9.06. Notation on or Exchange of Notes.
If an amendment, supplement or waiver changes the terms of a Note, the
Company may require the Holder of the Note to deliver it to the Trustee. The
Company shall provide the Trustee with an appropriate notation on the Note about
the changed terms and cause the Trustee to return it to the Holder at the
Company's expense. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Note shall issue and the Trustee shall
authenticate a new Note that reflects the changed terms. Failure to make the
appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.07. Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided, however, that the Trustee
may, but shall not be obligated to, execute any such amendment, supplement or
waiver which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel and an Officers' Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture and constituted the legal, valid and binding obligations of the
Company enforceable in accordance with its terms. Such Opinion of Counsel shall
be at the expense of the Company.
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ARTICLE TEN
SUBORDINATION OF NOTES
SECTION 10.01. Notes Subordinated to Senior Debt.
Anything herein to the contrary notwithstanding, the Company, for
itself and its successors, and each Holder, by his or her acceptance of Notes,
agrees that the payment of all Obligations owing to the Holders in respect of
the Notes is subordinated, to the extent and in the manner provided in this
Article Ten, to the prior payment in full in cash or Cash Equivalents, or such
payment duly provided for to the satisfaction of the holders of Senior Debt, of
all Obligations due in respect of Senior Debt (including the Obligations with
respect to the Senior Credit Facility, whether outstanding on the Issue Date or
thereafter incurred). Notwithstanding the foregoing, payments and distributions
(a) of Permitted Junior Securities and (b) made relating to the Notes from the
trust established pursuant to Article Eight shall not be so subordinated in
right of payment, so long as, with respect to (b), (i) the conditions specified
in Article Eight (without any waiver or modification of the requirement that the
deposits pursuant thereto do not conflict with the terms of the Senior Credit
Facility or any other Senior Debt) are satisfied on the date of any deposit
pursuant to said trust and (ii) such payments and distributions did not violate
the provisions of this Article Ten or Section 11.02 of this Indenture when made.
This Article Ten shall constitute a continuing offer to all Persons
who become holders of, or continue to hold, Senior Debt, and such provisions are
made for the benefit of the holders of Senior Debt and such holders are made
obligees hereunder and any one or more of them may enforce such provisions.
SECTION 10.02. Suspension of Payment When Senior Debt Is in Default.
(a) If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or fees with respect to, any Designated Senior Debt (a "Payment
Default"), then no payment or distribution of any kind or character shall be
made by the Company with respect to any Obligations on or with respect to the
Notes or to acquire any of the Notes for cash or assets or otherwise (other
than, in either case, Permitted Junior Securities).
(b) If any other event of default (other than a Payment Default)
occurs and is continuing with respect to any Designated Senior Debt (as such
event of default is defined in the instrument creating or evidencing such
Designated Senior Debt) permitting the holders of such Designated Senior Debt
then outstanding to accelerate the maturity thereof (a "Non-Payment Default")
and if the Representative for the respective issue of Designated Senior Debt
gives notice of the Non-Payment Default to the Trustee stating that such notice
is a payment blockage notice (a "Payment Blockage Notice"), then during the
period (the
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"Payment Blockage Period") beginning upon the date of receipt of such Payment
Blockage Notice and ending on the earlier of the 179th day after such date of
receipt and the date on which (x) all Non-Payment Default with respect to such
Designated Senior Debt have been cured or waived, (y) such Designated Senior
Debt with respect to which any such Non-Payment Default has occurred and is
continuing is discharged or paid in full in cash or cash equivalents, or (z) the
Trustee receives notice thereof from the Representative for the respective issue
of Designated Senior Debt terminating the Payment Blockage Period, unless the
maturity of the Designated Senior Debt has been accelerated, neither the Company
nor any other Person on its behalf shall make any payment or distribution of any
kind or character with respect to any Obligations on or with respect to the
Notes or acquire any of the Notes for cash or assets or otherwise (other than,
in either case, Permitted Junior Securities). Notwithstanding anything herein to
the contrary, (x) in no event will a Payment Blockage Period extend beyond 179
days from the date the applicable Payment Blockage Notice is received by the
Trustee and (y) only one such Payment Blockage Period may be commenced within
any 360 consecutive days. For all purposes of this Section 10.02(b), no
Non-Payment Default which existed or was continuing on the date of the
commencement of any Payment Blockage Period with respect to the Designated
Senior Debt shall be, or be made, the basis for the commencement of a second
Payment Blockage Period by the Representative of such Designated Senior Debt
whether or not within a period of 360 consecutive days, unless such Non-Payment
Default shall have been cured or waived for a period of not less than 90
consecutive days (it being acknowledged that any subsequent action, or any
breach of any financial covenants for a period ending after the date of
commencement of such Payment Blockage Period that, in either case, would give
rise to a Non-Payment Default pursuant to any provisions under which a
Non-Payment Default previously existed or was continuing shall constitute a new
Non-Payment Default for this purpose).
(c) The foregoing Sections 10.02(a) and (b) shall not apply to
payments and distributions (A) of Permitted Junior Securities and (B) made
relating to the Notes from the trust established pursuant to Article Eight, so
long as, with respect to (B), (i) the conditions specified in Article Eight
(without any waiver or modification of the requirement that the deposits
pursuant thereto do not conflict with the terms of the Credit Agreement or any
other Senior Debt) are satisfied on the date of any deposit pursuant to said
trust and (ii) such payments and distributions did not violate the provisions of
this Article Ten when made.
(d) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by the foregoing provisions of this Section 10.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt (pro rata to such holders on the basis of the respective amount of
Senior Debt held by such holders) or their respective Representatives, as their
respective interests may appear. The Trustee shall be entitled to rely on
information regarding amounts outstanding on the Senior Debt, if any, received
from the holders of the Senior Debt (or their Representatives).
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Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Notes to take any action to accelerate the maturity of
the Notes pursuant to Section 6.02 or to pursue any rights or remedies
hereunder; provided, however, that all Senior Debt thereafter due or declared to
be due shall first be paid in full in cash or Cash Equivalents before the
Holders are entitled to receive any payment of any kind or character with
respect to Obligations on the Notes.
SECTION 10.03. Notes Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of the Company.
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, assets or securities, to creditors upon any
total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets and liabilities
of the Company or in a bankruptcy, reorganization, insolvency, receivership or
other similar proceeding relating to the Company or its assets, whether
voluntary or involuntary, all Obligations due in respect of Senior Debt shall
first be paid in full in cash or Cash Equivalents, or such payment duly provided
for to the satisfaction of the holders of Senior Debt, before any payment or
distribution of any kind or character is made on account of any Obligations on
or relating to the Notes, or for the acquisition of any of the Notes for cash or
assets or otherwise (other than, in each case, Permitted Junior Securities).
Upon any such dissolution, winding-up, liquidation, reorganization, receivership
or similar proceeding, any payment or distribution of assets of the Company of
any kind or character, whether in cash, assets or securities, to which the
Holders of the Notes or the Trustee under this Indenture would be entitled,
except for the provisions hereof, shall be paid by the Company or by any
receiver, trustee in bankruptcy, liquidating trustee, agent or other Person
making such payment or distribution, or by the Holders or by the Trustee under
this Indenture if received by them, directly to the holders of Senior Debt (pro
rata to such holders on the basis of the respective amounts of Senior Debt held
by such holders) or their respective Representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Debt may have
been issued, as their respective interests may appear, for application to the
payment of Senior Debt remaining unpaid until all such Senior Debt has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf
of the Company, as proceeds of security or enforcement of any right of setoff or
otherwise) is declared to be fraudulent or preferential, set aside or required
to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or
other similar Person under any bankruptcy, insolvency, receivership, fraudulent
conveyance or similar law, then, if such payment is recovered by, or paid over
to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other
similar Person, the Senior Debt or part thereof originally intended to be
satisfied shall be deemed to be reinstated and outstanding as if such payment
had not occurred.
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It is further agreed that any diminution (whether pursuant to court
decree or otherwise, including without limitation for any of the reasons
described in the preceding sentence) of the Company's obligation to make any
distribution or payment pursuant to any Senior Debt, except to the extent such
diminution occurs by reason of the repayment (which has not been disgorged or
returned) of such Senior Debt in cash or cash equivalents, shall have no force
or effect for purposes of the subordination provisions contained in this Article
Ten, with any turnover of payments as otherwise calculated pursuant to this
Article Ten to be made as if no such diminution had occurred.
(c) In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
assets or securities, shall be received by any Holder when such payment or
distribution is prohibited by this Section 10.03, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Senior Debt (pro rata to such holders on the basis of the
respective amount of Senior Debt held by such holders) or their respective
Representatives, or to the trustee or trustees under any indenture pursuant to
which any of such Senior Debt may have been issued, as their respective
interests may appear, for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full in cash or cash
equivalents, after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of such Senior Debt.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another Person or the liquidation or dissolution of the
Company following the conveyance or transfer of all or substantially all of its
assets, to another Person upon the terms and conditions provided in Article Five
hereof and as long as permitted under the terms of the Senior Debt shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section 10.03 if such other Person shall, as a part of such
consolidation, merger, conveyance or transfer, assume the Company's obligations
hereunder in accordance with Article Five hereof.
SECTION 10.04. Payments May Be Made Prior to Dissolution.
Nothing contained in this Article Ten or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Sections
10.02 and 10.03, from making payments at any time for the purpose of making
payments of principal of and interest on the Notes, or from depositing with the
Trustee any moneys for such payments, or (ii) in the absence of actual knowledge
by the Trustee that a given payment would be prohibited by Section 10.02 or
10.03, the application by the Trustee of any moneys deposited with it for the
purpose of making such payments of principal of, and interest on, the Notes to
the Holders entitled thereto unless at least two Business Days prior to the date
upon which such payment would otherwise become due and payable a Responsible
Officer of the Trustee shall have actually received the written notice provided
for in the first sentence of Section 10.02(b) or in Section 10.07 (provided,
however, that, notwithstanding the foregoing, the Holders receiving any payments
made in contravention of Section 10.02 and/or 10.03 (and
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the respective such payments) shall otherwise be subject to the provisions of
Section 10.02 and Section 10.03). The Company shall give prompt written notice
to the Trustee of any dissolution, winding-up, liquidation or reorganization of
the Company, although any delay or failure to give any such notice shall have no
effect on the subordination provisions contained herein.
SECTION 10.05. Holders To Be Subrogated to Rights of Holders of Senior Debt.
Subject to the payment in full in cash or Cash Equivalents of all
Senior Debt, the Holders of the Notes shall be subrogated to the rights of the
holders of Senior Debt to receive payments or distributions of cash, assets or
securities of the Company applicable to the Senior Debt until the Notes shall be
paid in full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of the Senior Debt by or on behalf of the Company,
or by or on behalf of the Holders by virtue of this Article Ten, which otherwise
would have been made to the Holders shall, as between the Company and the
Holders, be deemed to be a payment by the Company to or on account of the Senior
Debt, it being understood that the provisions of this Article Ten are and are
intended solely for the purpose of defining the relative rights of the Holders,
on the one hand, and the holders of Senior Debt, on the other hand.
SECTION 10.06. Obligations of the Company Unconditional.
Nothing contained in this Article Ten or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among the Company, its
creditors other than the holders of Senior Debt, and the Holders, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders the
principal of and any interest on the Notes as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
Holder of any Note or the Trustee on its behalf from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, in respect of cash, assets or securities of the Company
received upon the exercise of any such remedy.
SECTION 10.07. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Notes pursuant to the provisions of this
Article Ten, although any delay or failure to give any such notice shall have no
effect on the subordination provisions contained herein. Regardless of anything
to the contrary contained in this Article Ten or elsewhere in this Indenture,
the Trustee shall not be charged with knowledge of the existence of any default
or event of default with respect to any Senior Debt or of any other facts which
would prohibit the making of any payment to or by the Trustee unless and until
the Trustee shall
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have received notice in writing from the Company, or from a holder of Senior
Debt or a Representative therefor and, prior to the receipt of any such written
notice, the Trustee shall be entitled to assume (in the absence of actual
knowledge to the contrary) that no such facts exist. The Trustee shall be
entitled to rely on the delivery to it of any notice pursuant to this Section
10.07 to establish that such notice has been given by a holder of Senior Debt
(or a trustee thereof).
In the event that the Trustee determines in good faith that any
evidence is required with respect to the right of any Person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article Ten, the Trustee may request such Person to furnish evidence to the
satisfaction of the Trustee as to the amounts of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article Ten, and if such evidence is not furnished the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
SECTION 10.08. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article Ten, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders of the Notes shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which any insolvency,
bankruptcy, receivership, dissolution, winding-up, liquidation, reorganization
or similar case or proceeding is pending, or upon a certificate of the receiver,
trustee in bankruptcy, liquidating trustee, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or the Holders of the Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Debt and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article Ten.
SECTION 10.09. Trustee's Relation to Senior Debt.
The Trustee and any agent of the Company or the Trustee shall be
entitled to all the rights set forth in this Article Ten with respect to any
Senior Debt which may at any time be held by it in its individual or any other
capacity to the same extent as any other holder of Senior Debt and nothing in
this Indenture shall deprive the Trustee or any such agent of any of its rights
as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article Ten, and no implied covenants or
obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt.
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Whenever a distribution is to be made or a notice given to holders or
owners of Senior Debt, the distribution may be made and the notice may be given
to their Representative, if any.
SECTION 10.10. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt to
enforce subordination as provided herein shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms of this Indenture, regardless of any
knowledge thereof which any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee, without incurring responsibility to the
Trustee or the Holders of the Notes and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders of the Notes to the holders of the Senior Debt, do any one or more of
the following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt, or any instrument evidencing the same or
any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Senior Debt; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 10.11. Noteholders Authorize Trustee To Effectuate Subordination of
Notes.
Each Holder of Notes by its acceptance of them authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the holders of Senior Debt
and the Holders of Notes, the subordination provided in this Article Ten, and
appoints the Trustee its attorney-in-fact for such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency, receivership, reorganization or
similar proceedings or upon an assignment for the benefit of credits or
otherwise) tending towards liquidation of the business and assets of the
Company, the filing of a claim for the unpaid balance of its Notes and accrued
interest in the form required in those proceedings.
If the Trustee does not file a proper claim or proof of debt in the
form required in such proceeding prior to 30 days before the expiration of the
time to file such claim or claims, then the holders of the Senior Debt or their
Representative are or is hereby authorized to have the right to file and are or
is hereby authorized to file an appropriate claim for and on behalf of the
Holders of said Notes. Nothing herein contained shall be deemed to
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authorize the Trustee or the holders of Senior Debt or their Representative to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee or the holders of
Senior Debt or their Representative to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 10.12. This Article Ten Not To Prevent Events of Default.
The failure to make a payment on account of principal of or interest
on the Notes by reason of any provision of this Article Ten will not be
construed as preventing the occurrence of an Event of Default.
SECTION 10.13. Trustee's Compensation Not Prejudiced.
Nothing in this Article Ten will apply to amounts due to the Trustee
(other than payments of Obligations owing to Holders in respect of Notes)
pursuant to other sections of this Indenture.
ARTICLE ELEVEN
SUBSIDIARY GUARANTEE
SECTION 11.01. Unconditional Guarantee.
Subject to the provisions of this Article Eleven, each of the
Guarantors hereby, jointly and severally, unconditionally and irrevocably
guarantees, on a senior subordinated basis to each Holder of a Note
authenticated and delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability of this Indenture,
the Notes or the obligations of the Company or any other Guarantors to the
Holders or the Trustee hereunder or thereunder: (a) (x) the due and punctual
payment of the principal of, premium, if any, and interest on the Notes when and
as the same shall become due and payable, whether at maturity, upon redemption
or repurchase, by acceleration or otherwise, (y) the due and punctual payment of
interest on the overdue principal and (to the extent permitted by law) interest,
if any, on the Notes and (z) the due and punctual payment and performance of all
other obligations of the Company and all other obligations of the other
Guarantors (including under the Subsidiary Guarantees), in each case, to the
Holders or the Trustee hereunder or thereunder (including amounts due the
Trustee under Section 7.07 hereof), all in accordance with the terms hereof and
thereof (collectively, the "Guarantee Obligations"); and (b) in case of any
extension of time of payment or renewal of any Notes or any of such other
obligations, the due and punctual payment and performance of Guarantee
Obligations in accordance with the terms of the extension or renewal, whether at
maturity, upon redemption or repurchase, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed, or failing performance of any
other obliga-
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tion of the Company to the Holders under this Indenture or under the Notes, for
whatever reason, each Guarantor shall be obligated to pay, or to perform or
cause the performance of, the same immediately. A Default under this Indenture
or the Notes shall constitute an event of default under the Subsidiary
Guarantees, and shall entitle the Holders of Notes to accelerate the obligations
of the Guarantors thereunder in the same manner and to the same extent as the
obligations of the Company.
Each of the Guarantors hereby agrees that its obligations hereunder
shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, any release of any other Guarantor, the
recovery of any judgment against the Company, any action to enforce the same,
whether or not a Subsidiary Guarantee is affixed to any particular Note, or any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each of the Guarantors hereby waives the
benefit of diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest, notice and all demands
whatsoever and covenants that its Subsidiary Guarantee shall not be discharged
except by complete performance of the obligations contained in the Notes, this
Indenture and this Subsidiary Guarantee. This Subsidiary Guarantee is a
guarantee of payment and not of collection. If any Holder or the Trustee is
required by any court or otherwise to return to the Company or to any Guarantor,
or any custodian, trustee, liquidator or other similar official acting in
relation to the Company or such Guarantor, any amount paid by the Company or
such Guarantor to the Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor further agrees that, as between it, on the one hand, and the
Holders of Notes and the Trustee, on the other hand, (a) subject to this Article
Eleven, the maturity of the obligations guaranteed hereby may be accelerated as
provided in Article Six for the purposes of this Subsidiary Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby, and (b) in the
event of any acceleration of such obligations as provided in Article Six hereof,
such obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Subsidiary Guarantee.
SECTION 11.02. Subordination of Subsidiary Guarantee.
The obligations of each Guarantor under its Subsidiary Guarantee
pursuant to this Article Eleven shall be junior and subordinated to the prior
payment in full in cash or Cash Equivalents to Guarantor Senior Debt on the same
basis as the Notes are junior and subordinated to Senior Debt of the Company.
For the purposes of the foregoing sentence, the Trustee and the Holders shall
have the right to receive and/or retain payments by any of the Guarantors only
at such times as they may receive and/or retain payments in respect of the Notes
pursuant to this Indenture, including Article Ten hereof. In addition to the
foregoing in this Section 11.02, all of the covenants, obligations and
agreements contained in Arti-
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cle Ten (together with related definitions) shall be deemed incorporated in this
Section 11.02, mutatis mutandis, as if references to the Company therein are
references to each Guarantor herein and references to Senior Debt therein are
references to Guarantor Senior Debt herein. This Section 11.02 shall constitute
a continuing offer to all Persons who become holders of, or continue to hold,
Guarantor Senior Debt, and such provisions are made for the benefit of the
holders of Guarantor Senior Debt and such holders are made obligees hereunder
and any one or more of them may enforce such provisions in accordance with the
terms of this Section 11.02.
SECTION 11.03. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Subsidiary Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor under its Subsidiary Guarantee and this
Article Eleven shall be limited to the maximum amount as will, after giving
effect to such maximum amount and all other contingent and fixed liabilities of
such Guarantor that are relevant under such laws, and after giving effect to any
collections from, rights to receive contribution from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under this Article Eleven, result in the obligations of such Guarantor
under its Subsidiary Guarantee not constituting a fraudulent transfer or
conveyance.
SECTION 11.04. Execution and Delivery of Subsidiary Guarantee.
To further evidence its Subsidiary Guarantee set forth in Section
11.01, each Guarantor hereby agrees that a notation of such Subsidiary
Guarantee, substantially in the form of Exhibit E hereto, shall be endorsed on
each Note authenticated and delivered by the Trustee. Such Subsidiary Guarantee
shall be executed on behalf of each Guarantor by either manual or facsimile
signature of one Officer or other Person duly authorized by all necessary
corporate action of each Guarantor who shall have been duly authorized to so
execute by all requisite corporate action. The validity and enforceability of
any Subsidiary Guarantee shall not be affected by the fact that it is not
affixed to any particular Note.
Each of the Guarantors hereby agrees that its Subsidiary Guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Subsidiary Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Subsidiary Guarantee no longer holds that office at the time the Trustee
authenticates the Note on which such Subsidiary Guarantee is endorsed or at any
time thereafter, such Guarantor's Subsidiary Guarantee of such Note shall
nevertheless be valid.
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The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Subsidiary Guarantee set
forth in this Indenture on behalf of each Guarantor.
SECTION 11.05. Release of a Guarantor.
In the event a Guarantor is sold or disposed of (whether by merger,
consolidation, the sale of its Capital Stock or the sale of all or substantially
all of its assets (other than by lease)) and whether or not the Guarantor is the
surviving corporation in such transaction, to a Person which is not the Company
or a Restricted Subsidiary, such Guarantor will be released from its obligations
under the indenture and its Subsidiary Guarantee if:
(1) the sale or other disposition is in compliance with this
Indenture, including the Sections 4.13 and 4.19; and
(2) all the obligations of such Guarantor under the Credit Agreement
and related documentation and any other agreements relating to any other
Indebtedness of the Company or the Restricted Subsidiaries (other than such
Guarantor) terminate upon consummation of such transaction.
A Guarantor will be released from its obligations under this
Indenture, the Subsidiary Guarantee and the Registration Rights Agreement if the
Company designates such Subsidiary as an Unrestricted Subsidiary and such
designation complies with the other applicable provisions of this Indenture.
The Trustee shall execute an appropriate instrument prepared by the
Company evidencing the release of a Guarantor from its obligations under its
Subsidiary Guarantee upon receipt of a request by the Company or such Guarantor
accompanied by an Officers' Certificate and an Opinion of Counsel certifying as
to the compliance with this Section 11.05; provided, however, that the legal
counsel delivering such Opinion of Counsel may rely as to matters of fact on one
or more Officers' Certificates of the Company.
Except as set forth in Articles Four and Five and this Section 11.05,
nothing contained in this Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor or shall prevent any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or another
Guarantor.
SECTION 11.06. Waiver of Subrogation.
Until this Indenture is discharged and all of the Notes are discharged
and paid in full, each Guarantor hereby irrevocably waives and agrees not to
exercise any claim or other rights which it may now or hereafter acquire against
the Company that arise from the existence, payment, performance or enforcement
of the Company's obligations under the Notes or this Indenture and such
Guarantor's obligations under this Subsidiary Guarantee
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and this Indenture, in any such instance including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of the Holders against the
Company, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including, without limitation, the right to
take or receive from the Company, directly or indirectly, in cash or other
assets or by set-off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Guarantor in
violation of the preceding sentence and any amounts owing to the Trustee or the
Holders of Notes under the Notes, this Indenture, or any other document or
instrument delivered under or in connection with such agreements or instruments,
shall not have been paid in full, such amount shall have been deemed to have
been paid to such Guarantor for the benefit of, and held in trust for the
benefit of, the Trustee or the Holders and shall forthwith be paid to the
Trustee for the benefit of itself or such Holders to be credited and applied to
the obligations in favor of the Trustee or the Holders, as the case may be,
whether matured or unmatured, in accordance with the terms of this Indenture.
Each Guarantor acknowledges that it will receive direct and indirect benefits
from the financing arrangements contemplated by this Indenture and that the
waiver set forth in this Section 11.06 is knowingly made in contemplation of
such benefits.
SECTION 11.07. Immediate Payment.
Each Guarantor agrees to make immediate payment to the Trustee on
behalf of the Holders of all Guarantee Obligations owing or payable to the
respective Holders upon receipt of a demand for payment therefor by the Trustee
to such Guarantor in writing.
SECTION 11.08. No Set-Off.
Each payment to be made by a Guarantor hereunder in respect of the
Guarantee Obligations shall be payable in the currency or currencies in which
such Guarantee Obligations are denominated, and shall be made without set-off,
counterclaim, reduction or diminution of any kind or nature.
SECTION 11.09. Guarantee Obligations Absolute.
The obligations of each Guarantor hereunder are and shall be absolute
and unconditional and any monies or amounts expressed to be owing or payable by
each Guarantor hereunder which may not be recoverable from such Guarantor on the
basis of a Guarantee shall be recoverable from such Guarantor as a primary
obligor and principal debtor in respect thereof.
SECTION 11.10. Guarantee Obligations Continuing.
The obligations of each Guarantor hereunder shall be continuing and
shall remain in full force and effect until all such obligations have been paid
and satisfied in full. Each Guarantor agrees with the Trustee that it will from
time to time deliver to the Trustee suitable acknowledgments of this continued
liability hereunder and under any other instru-
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ment or instruments in such form as counsel to the Trustee may advise and as
will prevent any action brought against it in respect of any default hereunder
being barred by any statute of limitations now or hereafter in force and, in the
event of the failure of a Guarantor so to do, it hereby irrevocably appoints the
Trustee the attorney and agent of such Guarantor to make, execute and deliver
such written acknowledgment or acknowledgments or other instruments as may from
time to time become necessary or advisable, in the judgment of the Trustee on
the advice of counsel, to fully maintain and keep in force the liability of such
Guarantor hereunder.
SECTION 11.11. Guarantee Obligations Not Reduced.
The obligations of each Guarantor hereunder shall not be satisfied,
reduced or discharged solely by the payment of such principal, premium, if any,
interest, fees and other monies or amounts as may at any time prior to discharge
of this Indenture pursuant to Article Eight be or become owing or payable under
or by virtue of or otherwise in connection with the Notes or this Indenture.
SECTION 11.12. Guarantee Obligations Reinstated.
The obligations of each Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case may be, if at any time any payment
which would otherwise have reduced the obligations of any Guarantor hereunder
(whether such payment shall have been made by or on behalf of the Company or by
or on behalf of a Guarantor) is rescinded or reclaimed from any of the Holders
upon the insolvency, bankruptcy, liquidation or reorganization of the Company or
any Guarantor or otherwise, all as though such payment had not been made. If
demand for, or acceleration of the time for, payment by the Company or any other
Guarantor is stayed upon the insolvency, bankruptcy, liquidation or
reorganization of the Company or such Guarantor, all such Indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by
each Guarantor as provided herein.
SECTION 11.13. Guarantee Obligations Not Affected.
The obligations of each Guarantor hereunder shall not be affected,
impaired or diminished in any way by any act, omission, matter or thing
whatsoever, occurring before, upon or after any demand for payment hereunder
(and whether or not known or consented to by any Guarantor or any of the
Holders) which, but for this provision, might constitute a whole or partial
defense to a claim against any Guarantor hereunder or might operate to release
or otherwise exonerate any Guarantor from any of its obligations hereunder or
otherwise affect such obligations, whether occasioned by default of any of the
Holders or otherwise, including, without limitation:
(a) any limitation of status or power, disability, incapacity or other
circumstance relating to the Company or any other Person, including any
insolvency, bank-
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ruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding-up or other proceeding involving or affecting the
Company or any other Person;
(b) any irregularity, defect, unenforceability or invalidity in
respect of any indebtedness or other obligation of the Company or any other
Person under this Indenture, the Notes or any other document or instrument;
(c) any failure of the Company or any other Guarantor, whether or not
without fault on its part, to perform or comply with any of the provisions
of this Indenture, the Notes or any Subsidiary Guarantee, or to give notice
thereof to a Guarantor;
(d) the taking or enforcing or exercising or the refusal or neglect to
take or enforce or exercise any right or remedy from or against the Company
or any other Person or their respective assets or the release or discharge
of any such right or remedy;
(e) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other Person;
(f) any change in the time, manner or place of payment of, or in any
other term of, any of the Notes, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from, any
of the Notes or this Indenture, including, without limitation, any increase
or decrease in the principal amount of or premium, if any, or interest on
any of the Notes;
(g) any change in the ownership, control, name, objects, businesses,
assets, capital structure or constitution of the Company or a Guarantor;
(h) any merger or amalgamation of the Company or a Guarantor with any
Person or Persons;
(i) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of
the Guarantee Obligations or the obligations of a Guarantor under its
Subsidiary Guarantee; and
(j) any other circumstance, including release of a Guarantor pursuant
to Section 11.05 (other than by complete, irrevocable payment) that might
otherwise constitute a legal or equitable discharge or defense of the
Company under this Indenture or the Notes or of a Guarantor in respect of
its Subsidiary Guarantee hereunder.
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SECTION 11.14. Waiver.
Without in any way limiting the provisions of Section 11.01, each
Guarantor hereby waives notice of acceptance hereof, notice of any liability of
any Guarantor hereunder, notice or proof of reliance by the Holders upon the
obligations of any Guarantor hereunder, and diligence, presentment, demand for
payment on the Company, protest, notice of dishonor or non-payment of any of the
Guarantee Obligations, or other notice or formalities to the Company or any
Guarantor of any kind whatsoever.
SECTION 11.15. No Obligation To Take Action Against the Company.
Neither the Trustee nor any other Person shall have any obligation to
enforce or exhaust any rights or remedies against the Company or any other
Person or any property of the Company or any other Person before the Trustee is
entitled to demand payment and performance by any or all Guarantors of their
liabilities and obligations under their Subsidiary Guarantees or under this
Indenture.
SECTION 11.16. Dealing with the Company and Others.
The Holders, without releasing, discharging, limiting or otherwise
affecting in whole or in part the obligations and liabilities of any Guarantor
hereunder and without the consent of or notice to any Guarantor, may
(a) grant time, renewals, extensions, compromises, concessions,
waivers, releases, discharges and other indulgences to the Company or any
other Person;
(b) take or abstain from taking security or collateral from the
Company or from perfecting security or collateral of the Company;
(c) release, discharge, compromise, realize, enforce or otherwise deal
with or do any act or thing in respect of (with or without consideration)
any and all collateral, mortgages or other security given by the Company or
any third party with respect to the obligations or matters contemplated by
this Indenture or the Notes;
(d) accept compromises or arrangements from the Company;
(e) apply all monies at any time received from the Company or from any
security upon such part of the Guarantee Obligations as the Holders may see
fit or change any such application in whole or in part from time to time as
the Holders may see fit; and
(f) otherwise deal with, or waive or modify their right to deal with,
the Company and all other Persons and any security as the Holders or the
Trustee may see fit.
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SECTION 11.17. Default and Enforcement.
If any Guarantor fails to pay in accordance with Section 11.07 hereof,
the Trustee may proceed in its name as trustee hereunder in the enforcement of
the Subsidiary Guarantee of any such Guarantor and such Guarantor's obligations
thereunder and hereunder by any remedy provided by law, whether by legal
proceedings or otherwise, and to recover from such Guarantor the obligations.
SECTION 11.18. Amendment, Etc.
No amendment, modification or waiver of any provision of this
Indenture relating to any Guarantor or consent to any departure by any Guarantor
or any other Person from any such provision will in any event be effective
unless it is signed by such Guarantor and the Trustee.
SECTION 11.19. Acknowledgment.
Each Guarantor hereby acknowledges communication of the terms of this
Indenture and the Notes and consents to and approves of the same.
SECTION 11.20. Costs and Expenses.
Each Guarantor shall pay on demand by the Trustee any and all
reasonable costs, fees and expenses (including, without limitation, legal fees
on a solicitor and client basis) incurred by the Trustee, its agents, advisors
and counsel or any of the Holders in enforcing any of their rights under any
Subsidiary Guarantee.
SECTION 11.21. No Merger or Waiver; Cumulative Remedies.
No Subsidiary Guarantee shall operate by way of merger of any of the
obligations of a Guarantor under any other agreement, including, without
limitation, this Indenture. No failure to exercise and no delay in exercising,
on the part of the Trustee or the Holders, any right, remedy, power or privilege
hereunder or under this Indenture or the Notes, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder or under this Indenture or the Notes preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges in the Subsidiary
Guarantee and under this Indenture, the Notes and any other document or
instrument between a Guarantor and/or the Company and the Trustee are cumulative
and not exclusive of any rights, remedies, powers and privilege provided by law.
SECTION 11.22. Survival of Guarantee Obligations.
Without prejudice to the survival of any of the other obligations of
each Guarantor hereunder, the obligations of each Guarantor under Section 11.01
shall survive the
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payment in full of the Guarantee Obligations and shall be enforceable against
such Guarantor without regard to and without giving effect to any defense, right
of offset or counterclaim available to or which may be asserted by the Company
or any Guarantor.
SECTION 11.23. Guarantee in Addition to Other Guarantee Obligations.
The obligations of each Guarantor under its Subsidiary Guarantee and
this Indenture are in addition to and not in substitution for any other
obligations to the Trustee or to any of the Holders in relation to this
Indenture or the Notes and any guarantees or security at any time held by or for
the benefit of any of them.
SECTION 11.24. Severability.
Any provision of this Article Eleven which is prohibited or
unenforceable in any jurisdiction shall not invalidate the remaining provisions
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction
unless its removal would substantially defeat the basic intent, spirit and
purpose of this Indenture and this Article Eleven.
SECTION 11.25. Successors and Assigns.
Each Subsidiary Guarantee shall be binding upon and inure to the
benefit of each Guarantor and the Trustee and the other Holders and their
respective successors and permitted assigns, except that no Guarantor may assign
any of its obligations hereunder or thereunder.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
SECTION 12.02. Notices.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
by telex, by nationally recognized overnight courier service, by telecopier or
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
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if to the Company or a Guarantor:
c/o FastenTech, Inc.
8500 Normandale Lake Blvd.
Suite 1230
Minneapolis, MN 55437
Attention: President
Telephone: (952) 921-2092
Facsimile: (952) 921-2099
with a copy to:
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Attention: John LaRocca
Telephone: (215) 994-4000
Facsimile: (215) 994-2222
if to the Trustee:
BNY Midwest Trust Company
2 North LaSalle Street
Suite 1020
Chicago, IL 60602
Attention: Corporate Trust Administration
Telephone: (312) 827-8547
Facsimile: (312) 827-8542
Each of the Company and the Trustee by written notice to each other
such Person may designate additional or different addresses for notices to such
Person. Any notice or communication to the Company and the Trustee, shall be
deemed to have been given or made as of the date so delivered if Personally
delivered; when answered back; when receipt is acknowledged, if telecopied; five
(5) calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee); and next Business Day if
by nationally recognized overnight courier service.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration
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books of the Registrar and shall be sufficiently given to him if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA (S) 312(b) with other
Noteholders with respect to their rights under this Indenture, the Notes or the
Subsidiary Guarantees. The Company, the Trustee, the Registrar and any other
Person shall have the protection of TIA (S) 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee at the
request of the Trustee:
(1) an Officers' Certificate, in form and substance satisfactory to
the Trustee, stating that, in the opinion of the signers, all conditions
precedent to be performed or effected by the Company, if any, provided for
in this Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, any and all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the Officers'
Certificate required by Section 4.06, shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed
-115-
opinion as to whether or not such covenant or condition has been complied
with or satisfied; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee, Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 12.07. Legal Holidays.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day.
SECTION 12.08. Governing Law.
This Indenture, the Notes and the Subsidiary Guarantees will be
governed by and construed in accordance with the laws of the State of New York,
as applied to contracts made and performed within the State of New York, without
regard to principles of conflicts of law.
SECTION 12.09. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. No Recourse Against Others.
No director, officer, employee, incorporator or stockholder of the
Company or of any Guarantor, as such, shall have any liability for any
obligations of the Company or the Guarantors under the Notes, this Indenture,
the Guarantors' Subsidiary Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder of Notes by
accepting a Note waives and releases all such liability. Such waiver and release
are part of the consideration for issuance of the Notes.
SECTION 12.11. Successors.
All agreements of the Company and the Guarantors in this Indenture,
the Notes and the Subsidiary Guarantees shall bind their respective successors.
All agreements of the Trustee in this Indenture shall bind its successor.
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SECTION 12.12. Duplicate Originals.
All parties may sign any number of copies of this Indenture. Each
signed copy or counterpart shall be an original, but all of them together shall
represent the same agreement.
SECTION 12.13. Severability.
In case any one or more of the provisions in this Indenture, in the
Notes or in the Subsidiary Guarantees shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the date first written above.
FASTENTECH, INC.,
as Issuer
By: /s/ David L Harbert
--------------------------------------------
Name: David L. Harbert
Title: Chief Financial Officer, Executive
Vice President, Treasurer and Secretary
S-1
PROGRESSIVE STAMPING CO. (DE), INC.
By: /s/ Ronald B. Kalich
--------------------------------------------
Name: Ronald B. Kalich
Title: Vice President
NELSON STUD WELDING, INC.
By: /s/ David L Harbert
--------------------------------------------
Name: David L. Harbert
Title: Executive Vice President, Treasurer
and Secretary
FABRI-STEEL PRODUCTS INCORPORATED
By: /s/ David L Harbert
--------------------------------------------
Name: David L. Harbert
Title: Chief Financial Officer, Executive
Vice President, Treasurer and Secretary
NELSON STUD WELDING INTERNATIONAL, INC.
By: /s/ David L Harbert
--------------------------------------------
Name: David L. Harbert
Title: President and Assistant Secretary
PROFILE STEEL AND WIRE, INC.
By: /s/ David L Harbert
--------------------------------------------
Name: David L. Harbert
Title: President and Assistant Secretary
S-2
THE FERRY CAP AND SET SCREW COMPANY
By: /s/ Ronald B. Kalich
--------------------------------------------
Name: Ronald B. Kalich
Title: Vice President
SPECIALTY BAR PRODUCTS COMPANY
By: /s/ David L Harbert
--------------------------------------------
Name: David L. Harbert
Title: Assistant Treasurer and Assistant
Secretary
INTEGRATED ENERGY TECHNOLOGIES, INC.
By: /s/ David L Harbert
--------------------------------------------
Name: David L. Harbert
Title: Secretary and Treasurer
S-3
BNY MIDWEST TRUST COMPANY,
as Trustee
By: /s/ D. G. Donovan
--------------------------------------------
Name: D. G. Donovan
Title: Assistant Vice President
S-4
EXHIBIT A
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
FASTENTECH, INC.
11 1/2% Senior Subordinated Notes 2011
CUSIP No.[___]
No. [___] $[___]
FASTENTECH, INC., a Delaware corporation (the "Company", which term
includes any successor corporation), for value received promises to pay to CEDE
& CO. or its registered assigns, the principal sum of [________________] on May
1, 2011.
Interest Payment Dates: May 1 and November 1, commencing November 1,
2003.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Note contained
herein, which will for all purposes have the same effect as if set forth at this
place.
A-1
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officer.
Dated: [_____]
FASTENTECH, INC.
By:
--------------------------------------------
Name:
Title:
A-2
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 11 1/2% Senior Subordinated Notes due 2011
described in the within-mentioned Indenture.
Dated: [_____] BNY MIDWEST TRUST COMPANY,
as Trustee
By:
--------------------------------------------
Authorized Signatory
A-3
(Reverse of Note)
11 1/2% Senior Subordinated Notes due 2011
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
SECTION 1. Interest. FastenTech, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Note at 11
1/2% per annum from May 1, 2003 until maturity. The Company will pay interest
semi-annually on May 1 and November 1 of each year, or if any such day is not a
Business Day, on the next succeeding Business Day (each, an "Interest Payment
Date"), commencing November 1, 2003. Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of original issuance; provided, however, that if there is no
existing Default in the payment of interest, and if this Note 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. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal and premium, if
any, from time to time on demand to the extent lawful at the interest rate
applicable to the Notes; it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
(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.
SECTION 2. Method of Payment. The Company will pay interest on the
Notes (except defaulted interest) to the Persons who are registered Holders of
Notes at the close of business on the April 15 or October 15 next preceding the
Interest Payment Date, even if such Notes are canceled after such record date
and on or before such Interest Payment Date, except as provided in Section 2.12
of the Indenture with respect to defaulted interest. The Notes will be issued in
denominations of $1,000 and integral multiples thereof. The Company shall pay
principal, premium, if any, and interest on the Notes 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 ("U.S. Legal Tender"). Principal, premium,
if any, and interest on the Notes will be payable at the office or agency of the
Company maintained for such purpose or, at the option of the Company, payment of
interest may be made by check mailed to the Holders of the Notes not issued in
global form at their respective addresses set forth in the register of Holders
of Notes; provided, however, that all payments of principal, premium and
interest with respect to Notes the Holders of $500,000 aggregate principal
amount or more of which have given wire transfer instructions to the Company
prior to the Record Date will be required to be made by wire transfer of
immediately available funds to the accounts specified by the Holders thereof.
Until otherwise designated by the Company, the Company's office or agency in New
York will be the office of the Trustee maintained for such purpose.
A-4
SECTION 3. Paying Agent and Registrar. Initially, BNY Midwest Trust
Company, 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.
SECTION 4. Indenture and Subordination. The Company issued the Notes
under an Indenture dated as of May 1, 2003 ("Indenture") by and among the
Company, the Guarantors and the Trustee. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939, as amended (15 U.S. Code (S)(S) 77aaa-77bbbb) (the
"TIA"). The Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. To the extent any provision
of this Note conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling. The payment of the
Notes will, to the extent set forth in the Indenture, be subordinated in right
of payment to the prior payment in full in cash or cash equivalents of all
Senior Debt and Guarantor Senior Debt.
SECTION 5. Optional Redemption. Except as set forth in Section 6
hereof, the Notes will not be redeemable at the Company's option until May 1,
2007. On or after May 1, 2007, the Company may redeem all or, from time to time,
a part of the Notes upon not less than 30 nor more than 60 days' notice at the
redemption prices (expressed as percentages of principal amount) set forth below
plus accrued and unpaid interest thereon, if any, to the applicable redemption
date, if redeemed during the twelve-month period beginning on May 1 of the years
indicated below:
Year Percentage
- ---- ----------
2007.......................................... 105.750%
2008.......................................... 102.875%
2009 and thereafter........................... 100.000%
SECTION 6. Optional Redemption upon Public Equity Offering. At any
time prior to May 1, 2006, the Company may on any one or more occasions redeem
up to 35% of the aggregate principal amount of Notes issued under the Indenture,
including additional Notes permitted under the Indenture, if any, with the Net
Cash Proceeds of one or more Public Equity Offerings at a redemption price equal
to 111.50% of the principal amount of the Notes to be redeemed, plus accrued and
unpaid interest, if any, to the redemption date (subject to the right of Holders
on the relevant Record Date to receive interest due on the relevant Interest
Payment Date); provided, however, that (i) there is a Public Market at the time
of such redemption; (ii) at least 65% of the aggregate principal amount of Notes
issued under the Indenture, including additional Notes permitted under the
Indenture, if any, remains outstanding immediately after the occurrence of such
redemption (excluding Notes held by the Company and its Subsidiaries) and (iii)
such redemption shall occur within 90 days after the date of the closing of such
Public Equity Offering (or, if later, the closing of any over-allotment option
with respect thereto).
A-5
SECTION 7. Mandatory Redemption. For the avoidance of doubt, an offer
to purchase pursuant to Section 8 hereof shall not be deemed a redemption. The
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
SECTION 8. Repurchase at Option of Holder. Upon the occurrence of a
Change of Control, and subject to certain conditions set forth in the Indenture,
the Company will be required to offer to purchase all of the outstanding Notes
at a purchase price in each equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any, thereon to the date of repurchase (subject
to the right of Holders to receive interest due on the relevant interest payment
date).
The Company is, subject to certain conditions and exceptions,
obligated to make an offer to purchase Notes at 100% of their principal amount,
plus accrued and unpaid interest, if any, thereon to the date of repurchase,
with certain net cash proceeds of certain sales or other dispositions of assets
in accordance with the Indenture.
SECTION 9. Notice of Redemption. Notice of redemption will be mailed
by first class mail at least 30 days but not more than 60 days before the
redemption date to each Holder of Notes to be redeemed at its registered
address. Notes in denominations larger than $1,000 may be redeemed in part. If
any Note is to be redeemed in part only, the notice of redemption that relates
to such Note shall state the portion of the principal amount thereof to be
redeemed. A new Note in principal amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof upon cancellation of the
original Note. On and after the redemption date interest ceases to accrue on
Notes or portions thereof called for redemption.
SECTION 10. Denominations, Transfer, Exchange. The Notes are in
registered form without coupons in denominations of $1,000 and integral
multiples of $1,000. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Registrar and the Trustee may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a Holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company or the Registrar
is not required to transfer or exchange any Note selected for redemption. Also,
the Company or the Registrar is not required to transfer or exchange any Notes
for a period of 15 days before a selection of Notes to be redeemed.
SECTION 11. Persons Deemed Owners. The registered Holder of a Note may
be treated as its owner for all purposes.
SECTION 12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
A-6
SECTION 13. Amendment, Supplement and Waiver. Subject to certain
exceptions, the Indenture and the Notes may be amended or supplemented with the
written consent of the Holders of at least a majority in aggregate principal
amount of the Notes then outstanding, and any existing Default or compliance
with any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Notes then outstanding. Without notice to
or consent of any Holder, the parties thereto may amend or supplement the
Indenture and the Notes to, among other things, cure any ambiguity, defect or
inconsistency in the Indenture, provide for uncertificated Notes in addition to
certificated Notes, comply with any requirements of the Commission in connection
with the qualification of the Indenture under the TIA, or make any change that
does not adversely affect the rights of any Holder of a Note.
SECTION 14. Defaults and Remedies. If a Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes generally may declare all the Notes to be due and
payable immediately. Notwithstanding the foregoing, in the case of a Default
arising from certain events of bankruptcy or insolvency as set forth in the
Indenture, with respect to the Company, all outstanding Notes will become due
and payable without further action or notice. Holders of the Notes may not
enforce the Indenture or the Notes except as provided in the Indenture. Subject
to certain limitations, Holders of a majority in principal amount of the then
outstanding Notes may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default (except a Default relating to the payment of principal or interest) if
it determines that withholding notice is in their interest. The Holders of a
majority in principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences under the Indenture except a continuing Default in
the payment of interest on, or the principal of, or the premium on, the Notes.
SECTION 15. Restrictive Covenants. The Indenture contains certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to incur indebtedness, to make restricted payments, to
create liens, to sell assets, to permit restrictions on dividends and other
payments by Restricted Subsidiaries of the Company, to consolidate, merge or
sell all or substantially all of its assets, to engage in transactions with
affiliates or to Incur other indebtedness senior to the Notes but subordinate to
other Indebtedness. The limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
SECTION 16. No Recourse Against Others. No director, officer,
employee, incorporator or stockholder of the Company or any Guarantor, as such,
shall have any liability for any obligations of the Company or the Guarantors
under the Notes, the Indenture, the Guarantors' Subsidiary Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
A-7
SECTION 17. Subsidiary Guarantees. This Note will be entitled to the
benefits of certain Subsidiary Guarantees made for the benefit of the Holders.
Reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.
SECTION 18. Trustee Dealings with the Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
SECTION 19. Authentication. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
SECTION 20. 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 entirety), 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).
SECTION 21. Additional Rights of Holders of Restricted Global Notes
and Restricted Definitive Notes. Pursuant to, but subject to the exceptions in,
the Registration Rights Agreement, the Company and the Guarantors will be
obligated to consummate an exchange offer pursuant to which the Holder of this
Note shall have the right to exchange this Note for a 11 1/2% Senior
Subordinated Note due 2011 of the Company which shall have been registered under
the Securities Act, in like principal amount and having terms identical in all
material respects to this Note (except that such Note shall not be entitled to
Additional Interest). The Holders shall be entitled to receive certain
Additional Interest in the event such exchange offer is not consummated or the
Notes are not offered for resale and upon certain other conditions, all pursuant
to and in accordance with the terms of the Registration Rights Agreement./a/
SECTION 22. 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 Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
SECTION 23. Governing Law. This Note shall be governed by, and
construed in accordance with, the laws of the State of New York without giving
effect to
- ----------
/a/ This Section not to appear on Exchange Notes or on Notes to which the
Holder is not a party to the Registration Rights Agreement.
A-8
applicable principles of conflicts of laws to the extent that the
application of the laws of another jurisdiction would be required thereby.
SECTION 24. Indenture. Each Holder, by accepting this Note, agrees to
be bound by the terms and provisions of the Indenture as the same may be amended
from time to time.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture.
A-9
ASSIGNMENT FORM
I or we assign and transfer this Note to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
- --------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to
---------------------------------------
transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Dated: Signed:
----------------- ---------------------------------------
(Sign exactly as name appears on
the other side of this Note)
Signature Guarantee:
------------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
In connection with any transfer of this Note occurring prior to the date which
is the earlier of (i) the date of the declaration by the Commission of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the date following the second anniversary of the original
issuance of this Note, the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer:
Check One
(1) [ ] to the Company or a subsidiary thereof; or
(2) [ ] pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) [ ] to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has
furnished to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be
obtained from the Trustee); or
(4) [ ] outside the United States to a "foreign purchaser" in compliance
with Rule 904 of Regulation S under the Securities Act; or
(5) [ ] pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) [ ] pursuant to an effective registration statement under the
Securities Act; or
(7) [ ] pursuant to another available exemption from the registration
statement requirements of the Securities Act of 1933;
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act (an "Affiliate"):
[ ] The transferee is an Affiliate of the Company.
Unless one of items (1) through (7) is checked, the Trustee will
refuse to register any of the Notes evidenced by this certificate in the name of
any Person other than the registered Holder thereof; provided, however, that if
item (3), (4), (5) or (7) is checked, the Company or the Trustee may require,
prior to registering any such transfer of the Notes, in their sole discretion,
such written legal opinions, certifications (including an investment letter in
the case of item (3) or (4)) and other information as the Trustee or the Company
has reasonably requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act.
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
Dated: Signed:
----------------------- ---------------------------------------
(Sign exactly as name appears on the
other side of this Note)
Signature Guarantee:
------------------------------------------------------------
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
----------------------- ---------------------------------------
-2-
NOTICE: To be executed by an executive
officer
-3-
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.09 or Section 4.13 of the Indenture, check the appropriate
box:
Section 4.09 [ ] Section 4.13 [ ]
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.09 or Section 4.13 of the Indenture, state the
amount: $
-----------
Dated: Signed:
----------------- -------------------------------
(Sign exactly as name
appears on the other
side of this Note)
Signature Guarantee:
-----------------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
-4-
EXHIBIT B
FORM OF LEGENDS
Each Global Note and Physical Note that constitutes a Restricted
Security or is sold in compliance with Regulation S shall bear the following
legend (the "Private Placement Legend") on the face thereof, unless otherwise
agreed by the Company and the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF
THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF
OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF AND THE LAST DATE ON WHICH THE ISSUER OR ANY AFFILIATE OF THE ISSUER WAS
THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO
THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS
AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN
A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES OF $250,000, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT,
SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
B-1
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE.
Each Global Note authenticated and delivered hereunder shall also bear
the following legend:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE
FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS
NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("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 IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
B-2
EXHIBIT C
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
[_______], [__]
BNY Midwest Trust Company
2 North LaSalle Street
Suite 1020
Chicago, Il 60602
Attention: Corporate Trust Administration
Ladies and Gentlemen:
In connection with our proposed purchase of 11 1/2 % Senior
Subordinated Notes due 2011 (the "Notes") of FASTENTECH, INC., a Delaware
corporation (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated April 24, 2003, relating to the Notes and such other
information as we deem necessary in order to make our investment decision. We
acknowledge that we have read and agreed to the matters stated in the section
entitled "Transfer restrictions" of such Offering Memorandum, including the
restrictions on duplication and circulation of the Offering Memorandum.
2. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture relating to
the Notes (the "Indenture") as described in the Offering Memorandum and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Notes except in compliance with, such restrictions and conditions
and the Securities Act of 1933, as amended (the "Securities Act"), and all
applicable state securities laws.
3. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes 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 any Notes, we will do so only (a) to the Company, (b)
pursuant to a registration statement that has been declared effective under the
Securities Act, (c) for so long as the Notes are eligible for resale pursuant to
Rule 144A under the Securities Act, to a person we reasonably believe is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
that purchases for its own account or for the account of a qualified
institutional buyer to whom notice is
C-1
given that the transfer is being made in reliance on Rule 144A, (d)
pursuant to offers and sales that occur outside the United States within the
meaning of Regulation S under the Securities Act, (e) to an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7)
under the Securities Act that is an institutional accredited investor acquiring
the security for its own account or for the account of such an institutional
accredited investor, in each case in a minimum principal amount of the
securities of $250,000, for investment purposes and not with a view to or for
offer or sale in connection with any distribution in violation of the Securities
Act, or (f) pursuant to another available exemption from the registration
requirements of the Securities Act, subject to the Company's and the Trustee's
right prior to any such offer, sale or transfer pursuant to clause (e) or (f) to
require the delivery of an opinion of counsel, certification and/or other
information satisfactory to each of them, and we further agree to provide to any
Person purchasing any of the Notes from us a notice advising such purchaser that
resales of the Notes are restricted as stated herein.
4. We are not acquiring the Notes for or on behalf of, and will not
transfer the Notes to, any pension or welfare plan (as defined in Section 3 of
the Employee Retirement Income Security Act of 1974, as amended) or plan (as
defined in Section 4975 of the Internal Revenue Code of 1986, as amended),
except as permitted in the section entitled "Transfer Restrictions" of the
Offering Memorandum.
5. We understand that, on any proposed resale of any Notes, we will be
required to furnish to the Trustee and the Company such certification, legal
opinions and other information as the Trustee and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect.
6. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) 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 Notes, and we and any accounts for
which we are acting are each able to bear the economic risk of our or their
investment, as the case may be.
7. We are acquiring the Notes purchased by us for our 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.
C-2
You, the Company, the Trustee and others 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 proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:
---------------------------
Name:
Title:
C-3
EXHIBIT D
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
[_______], [__]
BNY Midwest Trust Company
2 North LaSalle Street
Suite 1020
Chicago, Il 60602
Attention: Corporate Trust Administration
Re: FastenTech, Inc. (the "Company") 11 1/2 % Senior
Subordinated Notes due 2011 (the "Notes")
Ladies and Gentlemen:
In connection with our proposed sale of $[______] aggregate principal
amount of the Notes, we confirm that such sale has been effected pursuant to and
in accordance with Regulation S under the U.S. Securities Act of 1933, as
amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a Person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any Person acting
on our behalf reasonably believed that the transferee was outside the
United States, or (b) the transaction was executed in, on or through
the facilities of a designated offshore securities market and neither
we nor any Person acting on our behalf knows that the transaction has
been prearranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(b) or Rule
904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Notes.
D-1
You, the Company and counsel for 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. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
---------------------------
Authorized Signature
D-2
EXHIBIT E
SUBSIDIARY GUARANTEE
For value received, each of the undersigned hereby unconditionally
guarantees, as principal obligor and not only as a surety, to the Holder of this
Note the cash payment in United States dollars of principal of, premium, if any,
and interest on this Note in the amounts and at the times when due and interest
on the overdue principal, premium, if any, and interest, if any, of this Note,
if lawful, and the payment or performance of all other obligations of the
Company under the Indenture (as defined below) or the Notes, to the Holder of
this Note and the Trustee, all in accordance with and subject to the terms and
limitations of this Note, Article Eleven of the Indenture and this Subsidiary
Guarantee. This Subsidiary Guarantee will become effective in accordance with
Article Eleven of the Indenture and its terms shall be evidenced therein. The
validity and enforceability of any Subsidiary Guarantee shall not be affected by
the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Indenture dated as of May 1, 2003, among FastenTech,
Inc., a Delaware corporation, as issuer (the "Company"), the Guarantors named
therein and BNY Midwest Trust Company, as trustee (the "Trustee"), as amended or
supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Notes and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article Eleven of the Indenture and reference is hereby made to the
Indenture for the precise terms of the Subsidiary Guarantee and all of the other
provisions of the Indenture to which this Subsidiary Guarantee relates.
No director, officer, employee, incorporator or stockholder of any
Guarantor, as such, shall have any liability for any obligations of the
Guarantors under the Guarantors' Subsidiary Guarantees or for any claim based
on, in respect of, or by reason of, such obligations or their creation.
This Subsidiary Guarantee is subordinated in right of payment, in the
manner and to the extent set forth in Article Eleven of the Indenture, to the
prior payment in full in cash or cash equivalents of all Guarantor Senior Debt
of the Guarantors, whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed.
This Subsidiary Guarantee shall be governed by, and construed in
accordance with, the laws of the State of New York without giving effect to
principles of conflicts of law. The undersigned Guarantor hereby agrees to
submit to the jurisdiction of the courts of the State of New York in any action
or proceeding arising out of or relating to this Subsidiary Guarantee.
E-1
This Subsidiary Guarantee is subject to release upon the terms set
forth in the Indenture.
E-2
IN WITNESS WHEREOF, each Guarantor has caused its Subsidiary Guarantee
to be duly executed.
Date: [_______]
[___________]
By:
--------------------------
Name:
Title:
E-3