<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
AMENDMENT NO. 3
TO
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(e)(1) OF THE SECURITIES EXCHANGE ACT OF 1934)
Building One Services Corporation
(Name of Issuer)
Building One Services Corporation
(Name of Person(s) Filing Statement)
COMMON STOCK
(Title of Class of Securities)
120114103
(CUSIP Number of Class of Securities)
Joseph M. Ivey
President and Chief Executive Officer
Building One Services Corporation
800 Connecticut Avenue, N.W., Suite 1111
Washington, DC 20006
(202) 261-6000
(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications on Behalf of the Person(s) Filing the Statement)
Copies to:
F. Traynor Beck, Esquire Linda Griggs, Esquire
Executive Vice President, General Counsel Morgan, Lewis & Bockius LLP
Secretary, Building One Services Corporation 1800 M Street. N.W.
800 Connecticut Avenue, N.W., Suite 1111 Washington, DC 20036
Washington, DC 20006 (202) 467-7000
(202) 261-6000
February 19, 1999
(Date Tender Offer First Published, Sent or Given to Security Holders)
<PAGE>
This Amendment No. 3 modifies and supplements the Issuer Tender Offer
Statement on Schedule 13E-4 dated February 19, 1999, as amended on April 6, 1999
and April 26, 1999, filed by Building One Services Corporation, a Delaware
corporation (the "Issuer").
Item 1. Security and Issuer.
(a) On April 30, the Issuer issued a press release announcing the
preliminary results of its issuer tender offer. A copy of this press release is
filed as Exhibit (a)(16) hereto, and is incorporated herein by reference.
Item 3. Purpose of the Tender Offer and Plans or Proposals of the Issuer or
Affiliate.
Item 3 paragraph (d) is amended by adding the following to the first
paragraph:
Effective April 30, 1999 the three designees of Boss Investment, Andrew Africk,
Michael Gross and Brooks Newmark, were appointed to the Board of Directors.
Also effective April 30, 1999, David Ledecky and Thomas D. Heule resigned from
the Board of Directors.
Item 9. Material to be Filed as Exhibits.
Item 9 is hereby amended to include the following exhibits:
(a)(16) Press Release dated April 30, 1999.
(b)(2) Indenture, dated April 30, 1999, for 7 1/2% Convertible Junior
Subordinated Debentures Due 2012 between Building One Services
Corporation and the United States Trust Company, as Trustee.
(b)(4)(i) Amendment No. 1 to the Investors' Rights Agreement, dated April
6, 1999, between Building One Services Corporation and Boss
Investment LLC.
(b)(7) Indenture, dated April 30, 1999, for up to $400,000,000 10 1/2%
Senior Subordinated Notes between Building One Services
Corporation, the Subsidiary Guarantors named therein, and IBJ
Whitehall Bank & Trust Company, as Trustee.
(b)(8) Credit Agreement, dated April 30, 1999, among Building One
Services Corporation, various lending institutions, Goldman Sachs
Credit Partners L.P., as Documentation Agent, Salomon Smith
Barney Inc., as Syndication Agent, and Bankers Trust Company, as
Administrative Agent.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
BUILDING ONE SERVICES CORPORATION
By: /s/ Joseph M. Ivey
--------------------------------------------
Name: Joseph M. Ivey
Title: President and Chief Executive Officer
Dated: May 4, 1999
<PAGE>
EXHIBIT INDEX
Exhibit Description
- ------ -----------
(a)(16) Press Release dated April 30, 1999.
(b)(2) Indenture, dated April 30, 1999, for 7 1/2%
Convertible Junior Subordinated Debentures Due
2012 between Building One Services Corporation and
the United States Trust Company, as Trustee.
(b)(4)(i) Amendment No.1 to the Investors' Rights Agreement,
dated April 6, 1999, between Building One Services
Corporation and Boss Investment LLC.
(b)(7) Indenture, dated April 30, 1999 for up to
$400,000,000 10 1/2% Senior Subordinated Notes
between Building One Services Corporation, the
Subsidiary Guarantors named therein, and IBJ
Whitehall Bank & Trust Company, as Trustee.
(b)(8) Credit Agreement dated April 30, 1999, among
Building One Services Corporation, various lending
institutions, Goldman Sachs Credit Partners L.P.,
as Documentation Agent, Salomon Smith Barney Inc.,
as Syndication Agent, and Bankers Trust Company,
as Administrative Agent.
<PAGE>
EXHIBIT (a)(16)
[LOGO] BUILDING
O N E
SERVICES CORPORATION PRESS RELEASE
- --------------------------------------------------------------------------------
For immediate release - April 30, 1999 Release No. 99-011
BUILDING ONE SERVICES CORPORATION
(NASDAQ - "BOSS") Company
Contact: Timothy Clayton
Building One Services
Corporation
202-261-6000
[email protected]
Media
Contact: Bill Snethen
RMR & Associates
301-217-0009 ext. 34
bsnethen@rmr,com
BUILDING ONE SERVICES CORPORATION ANNOUNCES
PRELIMINARY RESULTS OF TENDER OFFER
Washington, DC (April 30, 1999) Building One Services Corporation (NASADAQ:BOSS)
announced today the results of its tender offer that expired at 11:59 p.m., New
York City time, on April 29, 1999, Pursuant to the tender offer, the Company
will purchase 25.5 million of its own shares (including shares issuable upon the
exercise of options) at a purchase price of $22.50 per share. Stockholders have
tendered for purchase in the tender offer 45,098,110 shares of the Company's
outstanding common stock and 1,481,701 shares underlying employee stock
options. Included in tendered shares are 3,717,600 shared tendered pursuant to
notice of guarantee delivery.
As a result of an oversubscription in the tender offer, the number of shares
purchased from each tendering stockholder (other than persons holding fewer than
100 shares or persons tendering their shares on a conditional basis) is
approximately 54.74% of the amount tendered. Such percentage is not final. The
Company will determine final percentage and make payment for the shares within
seven business days. All shares not purchased due to proration will be promptly
returned to tendering stockholders. As a result of the Company's acceptance for
purchase of 25.5 million shares, all withdrawal rights are terminated.
Building One Services Corporation is a leader in the facilities services
industry and has a corporate goal of becoming a national single-source provider
of facilities services. Facility services companies provide many products
and services needed for the routine operation and maintenance of a building.
Building One currently has annualized revenues of approximately $1.5 billion and
has operations in the electrical mechanical and janitorial segments of the
facilities services industry.
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BUILDING ONE SERVICES CORPORATION
- --------------------------------------------------------------------------------
Press Release 99-011
Page 2
This press release and our other public documents contain forward-looking
statements. Such statements relate to, among others things, the anticipated
closing of the tender offer and the financing related to the tender offer. Any
or all of our forward-looking statments in this press release or in any other
public statements we make may turn out to be wrong. They can be affected by
inaccurate assumptions we might make or by known or unknown risks and
uncertainties, including, without limitation, the following: the volatility of
the financial markets; the risks associated with significant indebtedness that
we may incur in our tender offer, the dependence on key personnel of the Company
and hourly wage and technical employees; risks related to the Company's
consolidation strategy, its ability to complete acquisitions and the continuing
consolidation in the industry; the ability to integrate acquisitions; risks
related to acquisition financing, including potential dilution; possible
significant amortization charges; exposure to downturns in commercial and
industrial construction; substantial competition, and other factors affecting
the Company's prospects described in the Company's annual report on Form 10-K
for the year ended December 31, 1998 filed with the Securities and Exchange
Commission and in its other public filings.
-END-
<PAGE>
EXHIBIT (b)(2)
================================================================================
BUILDING ONE SERVICES CORPORATION,
as Issuer
AND
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee
______________________________________________
INDENTURE
Dated as of April 30, 1999
_______________________________________________
$100,000,000
7 1/2% Convertible junior subordinated
debentures due 2012
================================================================================
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION....................................... 1
SECTION 101. Definitions.............................................................................. 1
SECTION 102. Compliance Certificates and Opinions..................................................... 18
SECTION 103. Form of Documents Delivered to Trustee................................................... 18
SECTION 104. Acts of Holders; Record Dates............................................................ 19
SECTION 105. Notices, Etc., to Trustee and Company.................................................... 20
SECTION 106. Notice to Holders; Waiver................................................................ 20
SECTION 107. Conflict with Trust Indenture Act........................................................ 20
SECTION 108. Effect of Headings and Table of Contents................................................. 21
SECTION 109. Successors and Assigns................................................................... 21
SECTION 110. Separability Clause...................................................................... 21
SECTION 111. Benefits of Indenture.................................................................... 21
SECTION 112. Governing Law............................................................................ 21
SECTION 113. Legal Holidays........................................................................... 21
SECTION 114. No Security Interest Created............................................................. 21
SECTION 115. Limitation on Individual Liability....................................................... 22
ARTICLE II SECURITY FORMS............................................................................... 22
SECTION 201. Forms Generally.......................................................................... 22
SECTION 202. Form of Face of Security................................................................. 23
SECTION 203. Form of Reverse of Security.............................................................. 25
SECTION 204. Form of Trustee's Certificate of Authentication.......................................... 30
ARTICLE III THE SECURITIES.............................................................................. 30
SECTION 301. Title and Terms.......................................................................... 30
SECTION 302. Denominations............................................................................ 31
SECTION 303. Execution, Authentication, Delivery and Dating........................................... 31
SECTION 304. Temporary Securities..................................................................... 32
SECTION 305. Registration, Registration of Transfer and Exchange...................................... 32
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................................... 35
SECTION 307. Payment of Interest; Interest Rights Preserved........................................... 35
SECTION 308. Persons Deemed Owners.................................................................... 37
SECTION 309. Cancellation............................................................................. 37
SECTION 310. Computation of Interest.................................................................. 37
SECTION 311. CUSIP Number............................................................................. 37
SECTION 312. Restrictions on Transfer................................................................. 37
SECTION 313. Restrictive Legends...................................................................... 38
SECTION 314. Notice of Proposed Transfers............................................................. 38
ARTICLE IV SATISFACTION AND DISCHARGE................................................................... 38
SECTION 401. Satisfaction and Discharge of Indenture.................................................. 38
SECTION 402. Application of Trust Money............................................................... 40
SECTION 403. Reinstatement............................................................................ 40
ARTICLE V REMEDIES...................................................................................... 40
SECTION 501. Events of Default........................................................................ 40
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................................... 42
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......................... 43
SECTION 504. Trustee May File Proofs of Claim......................................................... 44
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.............................. 44
SECTION 506. Application of Money Collected........................................................... 45
SECTION 507. Limitation on Suits...................................................................... 45
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.................................................................. 45
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SECTION 509. Restoration of Rights and Remedies....................................................... 46
SECTION 510. Rights and Remedies Cumulative........................................................... 46
SECTION 511. Delay or Omission Not Waiver............................................................. 46
SECTION 512. Control by Holders....................................................................... 46
SECTION 513. Waiver of Past Defaults.................................................................. 47
SECTION 514. Undertaking for Costs.................................................................... 47
SECTION 515. Waiver of Stay or Extension Laws......................................................... 47
ARTICLE VI THE TRUSTEE.................................................................................. 48
SECTION 601. Certain Duties and Responsibilities...................................................... 48
SECTION 602. Notice of Defaults....................................................................... 48
SECTION 603. Certain Rights of Trustee................................................................ 48
SECTION 604. Not Responsible for Recitals or Issuance of Securities................................... 49
SECTION 605. May Hold Securities...................................................................... 49
SECTION 606. Money Held in Trust...................................................................... 50
SECTION 607. Compensation and Reimbursement........................................................... 50
SECTION 608. Disqualification; Conflicting Interests.................................................. 50
SECTION 609. Corporate Trustee Required; Eligibility.................................................. 51
SECTION 610. Resignation and Removal; Appointment of Successor........................................ 51
SECTION 611. Acceptance of Appointment by Successor................................................... 52
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.............................. 52
SECTION 613. Preferential Collection of Claims Against Company........................................ 53
SECTION 614. Appointment of Authenticating Agent...................................................... 53
ARTICLE VII HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY............................................ 55
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders and the
Representative under the Credit Facility................................................. 55
SECTION 702. Preservation of Information; Communication to Holders.................................... 55
SECTION 703. Reports by Trustee....................................................................... 55
SECTION 704. Reports by Company....................................................................... 56
SECTION 705. Certain Notices.......................................................................... 56
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE....................................... 56
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms..................................... 56
SECTION 802. Successor Substituted.................................................................... 57
ARTICLE IX SUPPLEMENTAL INDENTURES...................................................................... 57
SECTION 901. Supplemental Indentures Without Consent of Holders....................................... 57
SECTION 902. Supplemental Indentures with Consent of Holders.......................................... 58
SECTION 903. Execution of Supplemental Indentures..................................................... 59
SECTION 904. Effect of Supplemental Indentures........................................................ 59
SECTION 905. Conformity with Trust Indenture Act...................................................... 59
SECTION 906. Reference in Securities to Supplemental Indentures....................................... 59
SECTION 907. Notice of Supplemental Indenture......................................................... 59
SECTION 908. Effect on Senior Indebtedness............................................................ 59
ARTICLE X COVENANTS..................................................................................... 60
SECTION 1001. Payment of Principal, Premium and Interest............................................... 60
SECTION 1002. Maintenance of Office or Agency.......................................................... 60
SECTION 1003. Money for Security Payments to Be Held in Trust.......................................... 60
SECTION 1004. Statement by Officers as to Default...................................................... 61
SECTION 1005. Existence................................................................................ 62
SECTION 1006. Waiver of Certain Covenants.............................................................. 62
SECTION 1007. Limitation on Incurrence of Indebtedness................................................. 62
SECTION 1008. Compliance With Investor Rights Agreement................................................ 62
SECTION 1009. Limitation on Restricted Payments........................................................ 63
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ARTICLE XI REDEMPTION OF SECURITIES..................................................................... 63
SECTION 1101. Right of Redemption...................................................................... 63
SECTION 1102. Applicability of Article................................................................. 63
SECTION 1103. Election to Redeem; Notice to Trustee.................................................... 64
SECTION 1104. [Reserved.].............................................................................. 64
SECTION 1105. Notice of Redemption..................................................................... 64
SECTION 1106. Deposit of Redemption Price.............................................................. 64
SECTION 1107. Securities Payable on Redemption Date.................................................... 65
SECTION 1108. [Reserved.].............................................................................. 65
SECTION 1109. Conversion Arrangements on Call for Redemption........................................... 65
ARTICLE XII SUBORDINATION OF SECURITIES................................................................. 66
SECTION 1201. Securities Subordinated to Senior Indebtedness........................................... 66
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc........................................... 66
SECTION 1203. No Payment When Senior Indebtedness in Default........................................... 67
SECTION 1204. Subrogation to Rights of Holders of Senior Indebtedness.................................. 69
SECTION 1205. Provisions Solely to Define Relative Rights.............................................. 69
SECTION 1206. Trustee to Effectuate Subordination...................................................... 69
SECTION 1207. No Waiver of Subordination Provisions.................................................... 70
SECTION 1208. Notice to Trustee........................................................................ 70
SECTION 1209. Reliance on Judicial Order or Certificate of Liquidating Agent........................... 71
SECTION 1210. Trustee Not Fiduciary for Holders of Senior Indebtedness................................. 71
SECTION 1211. Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustee's Rights......................................................................... 71
SECTION 1212. Reserved................................................................................. 72
SECTION 1213. Rights with respect to Conversion and Certain Payments................................... 72
SECTION 1214. Payments May Be Paid Prior to Dissolution................................................ 72
ARTICLE XIII CONVERSION OF SECURITIES................................................................... 72
SECTION 1301. Conversion Privilege and Conversion Price................................................ 72
SECTION 1302. Exercise of Conversion Privilege......................................................... 73
SECTION 1303. Fractions of Shares...................................................................... 73
SECTION 1304. Adjustment of Conversion Price........................................................... 74
SECTION 1305. Notice of Adjustments of Conversion Price................................................ 79
SECTION 1306. Notice of Certain Corporate Action....................................................... 79
SECTION 1307. Company to Reserve Common Stock.......................................................... 80
SECTION 1308. Taxes on Conversions..................................................................... 80
SECTION 1309. Covenant as to Common Stock.............................................................. 80
SECTION 1310. Cancellation of Converted Securities..................................................... 81
SECTION 1311. Provisions as to Consolidation, Merger or Sale of Assets................................. 81
SECTION 1312. Disclaimer of Responsibility for Certain Matters......................................... 82
ARTICLE XIV RIGHT TO REQUIRE REPURCHASE................................................................. 82
SECTION 1401. Right to Require Repurchase.............................................................. 82
SECTION 1402. Notice; Method of Exercising Repurchase Right............................................ 83
SECTION 1403. Deposit of Repurchase Price.............................................................. 84
SECTION 1404. Securities Not Repurchased on Repurchase Date............................................ 84
SECTION 1405. Securities Repurchased in Part........................................................... 84
ARTICLE XV VOTING RIGHTS................................................................................ 84
SECTION 1501. General.................................................................................. 84
SECTION 1502. No Changes to Voting Rights.............................................................. 85
SECTION 1503. Stockholder Approval Required............................................................ 85
SECTION 1504. Effectiveness of this Article XV......................................................... 85
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<PAGE>
INDENTURE, dated as of April 30, 1999 between BUILDING ONE SERVICES
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal executive
offices at 800 Connecticut Avenue, N.W., Washington, D.C. 20006, and UNITED
STATES TRUST COMPANY OF NEW YORK, a banking and trust company organized under
the New York banking law, as Trustee (herein called the "Trustee"), having an
office at 114 West 47th Street, 25th Floor, New York, New York 10036-1532.
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 71/2%
Convertible Junior Subordinated Debentures Due 2012 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally accepted
accounting principles, and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any computation
required and permitted hereunder shall mean United States accounting principles
as are generally accepted at the date of this Indenture; and
<PAGE>
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms used in either Article XII or XIII are defined in such
Article.
"Acquired Indebtedness" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or is assumed by the Company or any of its Subsidiaries in
connection with the acquisition of assets from such Person and in each case not
incurred by such Person in connection with, or in anticipation or contemplation
of, such Person becoming a Subsidiary of the Company or such acquisition,
merger or consolidation.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Securities" has the meaning specified in Section 202.
"Affiliate " of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified 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.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security to the extent
applicable to such transaction and as in effect from time to time.
"Apollo Stockholders" means Boss Investment LLC and any Affiliate
thereof (including without limitation, Apollo Management, L.P., Apollo
Management IV, L.P., Apollo Advisors, L.P., Apollo Advisors IV, L.P., Apollo
Investment Fund IV, L.P., Apollo Overseas Partners IV, L.P. and each of their
respective Affiliates), and all accounts managed by any of them for so long as
any of them holds the power of disposition and voting with respect thereto.
"Appraisal Procedure" if applicable, shall mean the following
procedure to determine the fair market value, as to any security, for purposes
of the definition of "Fair Market Value" or the fair market value, as to any
other property (in either case, the "valuation amount"). So long as the Apollo
Stockholders constitute the Requisite Holders, the valuation amount shall be
determined in good faith jointly by the Board of Directors and the Requisite
Holders; provided, however, that if such parties are not able to agree on the
valuation amount within a reasonable period of time (not to exceed twenty (20)
days) the valuation amount shall be determined by an investment banking firm of
national recognition, which firm shall be reasonably acceptable to the Board of
Directors and the Requisite Holders. If the Board of
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Directors and the Requisite Holders are unable to agree upon an acceptable
investment banking firm within ten (10) days after the date either party
proposed that one be selected, the investment banking firm will be selected by
an arbitrator located in New York City, New York, selected by the American
Arbitration Association (or if such organization ceases to exist, the arbitrator
shall be chosen by a court of competent jurisdiction). The arbitrator shall
select the investment banking firm (within ten (10) days of his appointment)
from a list, jointly prepared by the Board of Directors and the Requisite
Holders, of not more than six investment banking firms of national standing in
the United States, of which no more than three may be named by the Board of
Directors and no more than three may be named by the Requisite Holders. The
arbitrator may consider, within the ten-day period allotted, arguments from the
parties regarding which investment banking firm to choose, but the selection by
the arbitrator shall be made in its sole discretion from the list of six. The
Board of Directors and the Requisite Holders shall submit to the investment
banking firm their respective determinations of the valuation amount, and any
supporting arguments and other data as they may desire, within ten (10) days of
the appointment of the investment banking firm, and the investment banking firm
shall as soon as practicable thereafter make its own determination of the
valuation amount. The final valuation amount for purposes hereof shall be the
average of the two valuation amounts closest together, as determined by the
investment banking firm, from among the valuation amounts submitted by the
Company and the Requisite Holders and the valuation amount calculated by the
investment banking firm. The determination of the final valuation amount by such
investment-banking firm shall be final and binding upon the parties. The Company
shall pay the fees and expenses of the investment banking firm and arbitrator
(if any) used to determine the valuation amount. If required by any such
investment banking firm or arbitrator, the Company shall execute a retainer and
engagement letter containing reasonable terms and conditions, including, without
limitation, customary provisions concerning the rights of indemnification and
contribution by the Company in favor of such investment banking firm or
arbitrator and its officers, directors, partners, employees, agents and
Affiliates. If the Apollo Stockholders no longer constitute the Requisite
Holders, the valuation amount shall be determined in good faith by the Board of
Directors.
"Asset Acquisition" means (a) an Investment by the Company or any
Subsidiary of the Company in any other Person pursuant to which such Person
shall become a Subsidiary of the Company or any Subsidiary of the Company, or
shall be merged with or into the Company or any Subsidiary of the Company, or
(b) the acquisition by the Company or any Subsidiary of the Company of the
assets of any Person (other than a Subsidiary of the Company) which constitute
all or substantially all of the assets of such Person or comprises any division
or line of business of such Person or any other properties or assets of such
Person other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Subsidiaries (including any Sale and Leaseback Transaction) to any Person
other than the Company or a Wholly Owned Subsidiary of the Company of (a) any
Capital Stock of any Subsidiary of the Company; or (b) any other property or
assets of the Company or any Subsidiary of the Company other than in the
ordinary course of business.
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"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
The term "Beneficial Owner" is determined in accordance with Rule 13d-
3 promulgated by the Commission under the Exchange Act.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York or
the city in which the Corporate Trust Office is located are authorized or
obligated to close by law or executive order.
"Capital Stock" means (i) with respect to any Person that is a
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person and (ii) with
respect to any Person that is not a corporation, any and all partnership or
other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by,
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct 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
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Services ("S&P") or Moody's
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250.0 million; provided, that
instruments issued by banks not having one of the two highest ratings obtainable
from either S&P or Moody's shall not constitute "Cash Equivalents" for purposes
of the subordination provisions of this Indenture; (v) repurchase obligations
with a term of not more than seven days for underlying securities of the types
described in clause (i) above entered into
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with any bank meeting the qualifications specified in clause (iv) above; and
(vi) investments in money market funds which invest substantially all their
assets in securities of the types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of any of the following
events (each a "Change of Control"):
(i) the Sale of the Company,
(ii) the adoption of a plan relating to a Liquidation,
(iii) any "person" or "group" (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), directly or indirectly, of
Voting Stock entitled to cast a majority of the votes
entitled to be cast by the holders of the outstanding
Voting Stock of the Company,
(iv) (A) any "person" or "group" (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), directly or indirectly, of Voting
Stock entitled to cast more than 40% of the votes entitled
to be cast by the holders of the outstanding Voting Stock
of the Company and (B) the Permitted Holders beneficially
own, directly or indirectly, Voting Stock entitled to cast
in the aggregate a lesser percentage of the votes entitled
to be cast by the outstanding Voting Stock of the Company
than such other person or group, or
(v) the first day on which a majority of the Common Stock
Directors are not Continuing Directors.
"Charter Amendment" means an amended and restated certificate of
incorporation of the Company substantially in the form of Exhibit A to the
Investors' Rights Agreement.
"Charter Amendment Deadline" means July 25, 1999, or, if later, 60
days after the Original Issuance Date.
"Close of Business" means 5:00 p.m. in New York, New York.
"Commission" means the Securities and Exchange Commission as from time
to time constituted, created under the Exchange Act, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to
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redemption by the Company. However, subject to the provisions of Section 1311,
shares issuable on conversion of Securities shall include only shares of the
class designated as Common Stock of the Company at the date of this Indenture or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption
by the Company; provided, that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Common Stock Directors" means those directors of the Company who have
not been elected by the holders of the Securities pursuant to the separate class
vote granted to the Holders of the Securities to elect directors pursuant to the
Charter Amendment.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
delivered to the Trustee and signed in the name of the Company by (a) the
Chairman of the Board, the President or any Vice President of the Company and
(b) the Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net Income has been reduced thereby, (A) all income
taxes of such Person and Subsidiaries paid or accrued in accordance with GAAP
for such period (other than income taxes attributable to extraordinary, unusual
or nonrecurring gains or losses), (B) Consolidated Interest Expense and (C)
depreciation and amortization less any non-cash items increasing Consolidated
Net Income for such period, all as determined on a consolidated basis for such
Person and its Subsidiaries in accordance with GAAP.
"Consolidated Indebtedness" means with respect to any Person, as of
the date of determination, the aggregate amount of all Indebtedness of such
Person and its Subsidiaries on a consolidated basis included on the face of the
balance sheet of such Person (determined in accordance with GAAP) plus any
Indebtedness included on the face of the balance sheet of any other Person
(determined in accordance with GAAP) as to which such Person and/or any of its
Subsidiaries has created a guarantee or other contingent obligation (to the
extent of such guarantee or other contingent obligation).
"Consolidated Interest Expense" means, with respect to any Person for
any period, the sum of, without duplication (i) the aggregate of the interest
expense of such Person and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, including without limitation, (a)
any amortization of debt discount and amortization or write-off of deferred
financing costs (including the amortization of costs relating to interest rate
caps or other similar agreements), (b) the net costs under Interest Swap
Obligations, (c) all capitalized interest and (d) the interest portion of any
deferred payment obligation; and (ii) the
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interest component of Capitalized Lease Obligations paid, accrued and/or
scheduled to be paid or accrued by such Person and its Subsidiaries during such
period as determined on a consolidated basis in accordance with GAAP, minus
interest income for such period.
"Consolidated Leverage Ratio" means, with respect to any Person, the
ratio of Consolidated Indebtedness of such Person on the date of the transaction
giving rise to the need to calculate the Consolidated Leverage Ratio (the
"Transaction Date") to Consolidated EBITDA of such Person for the four full
fiscal quarters (the "Four Quarter Period") most recently ending on or prior to
the Transaction Date for which quarterly consolidated financial statements of
the Company and its Subsidiaries have been distributed to Holders. In addition
to and without limitation of the foregoing, for purposes of this definition,
"Consolidated EBITDA" and "Consolidated Indebtedness" shall be calculated after
giving effect on a pro forma basis, determined in accordance with Article 11 of
Regulation S-X promulgated by the Commission, for the period of such calculation
to any Asset Sales or Asset Acquisitions (including, without limitation, any
Asset Acquisition giving rise to the need to make such calculation as a result
of such Person or one of its Subsidiaries (including any Person who becomes a
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA attributable to the assets which are the subject of the
Asset Acquisition but excluding the Consolidated EBITDA attributable to the
assets which are the subject of the Asset Sale) occurring during the Four
Quarter Period or at any time subsequent to the last day of the Four Quarter
Period and on or prior to the Transaction Date, as if such Asset Sale or Asset
Acquisition (including the incurrence, assumption or liability for any such
Acquired Indebtedness) occurred on the first day of the Four Quarter Period. If
such Person or any of its Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the preceding sentence shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or any Subsidiary
of such Person had directly incurred or otherwise assumed such guaranteed
Indebtedness.
"Consolidated Net Income" means, with respect to any Person, for any
period, the aggregate net income (or loss) of such Person and its Subsidiaries
for such period on a consolidated basis, determined in accordance with GAAP;
provided that there shall be excluded therefrom (a) after-tax gains or losses
from Asset Sales or abandonments or reserves relating thereto, (b) after-tax
items classified as extraordinary or nonrecurring gains or losses, (c) the net
income of any Person acquired in a "pooling of interests" transaction accrued
prior to the date it becomes a Subsidiary of the referent Person or is merged or
consolidated with the referent Person or any Subsidiary of the referent Person,
(d) the net income (but not loss) of any Subsidiary of the referent Person to
the extent that the declaration of dividends or similar distributions by that
Subsidiary of that income is by a contract, operation of law or otherwise
prohibited, (e) the net income of any Person, other than a Subsidiary of the
referent Person, except to the extent of cash dividends or distributions paid to
the referent Person or to a Wholly Owned Subsidiary of the referent Person by
such Person, and (f) in the case of a successor to the referent Person by
consolidation or merger or as a transferee of the referent Person's assets, any
earnings of the successor corporation prior to such consolidation, merger or
transfer of assets.
"Continuing Directors" means (a) the Common Stock Directors in office
immediately after the Original Issuance Date, (b) the directors of the Company
designated by the Holders and (c) any directors of the Company nominated to the
Board of Directors by a majority
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of the directors included in clause (a) and clause (b) of this definition
(voting together as one board) or by a majority of Company directors who are
Continuing Directors.
"Conversion Date" has the meaning specified in Section 1302.
"Conversion Price" shall mean $22.50 per share of Common Stock,
subject to adjustment pursuant to the terms of the Indenture.
"Conversion Price Reduction Date" has the meaning specified in Section
1304.
"Converted Amount" means, with respect to any Security being
converted, the principal amount of such Security or, if less than the entire
principal amount of such Security is being converted, such portion of the
principal amount thereof as is being converted.
"Corporate Trust Office" means the office of the Trustee in New York,
New York, which initially shall be United States Trust Company of New York, 114
West 47th Street, New York, New York 10036-1532.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Credit Facility" means the Credit Agreement to be dated as of the
Original Issuance Date, between the Company, the lenders party thereto in their
capacities as lenders thereunder, Goldman Sachs Partners, L.P., as documentation
agent, Salomon Smith Barney, Inc., as syndication agent, and Bankers Trust
Company, as administrative agent, together with the related documents thereto
(including, without limitation, any guarantee 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 borrowing thereunder or adding Subsidiaries of the Company as
additional borrowers or guarantors thereunder) all or any 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 any foreign contract, currency swap
agreement or other similar agreement or arrangement designed to protect the
Company or any significant subsidiary of the Company against fluctuations in
currency values.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as a Depositary for such Global Securities (or any successor
securities clearing agency so registered).
"Designated Senior Indebtedness" means (i) Indebtedness under or in
respect of the Credit Facility and (ii) any other Indebtedness constituting
Senior Indebtedness which, at the time of determination, has an aggregate
principal amount of at least $25.0 million and is specifically designated in the
instrument evidencing or creating such Senior Indebtedness as
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"Designated Senior Indebtedness" by the Company; provided, that for purposes of
clause (y) of Section 1203(a), the Obligations under, or with respect to, the
Senior Subordinated Notes and the Senior Subordinated Note Indenture shall be
deemed not to be Designated Senior Indebtedness so long as the Credit Facility
is still in effect.
"DTC" means The Depository Trust Company, a New York corporation.
"Disqualified Capital Stock" means that portion of any Capital Stock
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, matures or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the sole option of the holder
thereof, on or prior to the Maturity of the Securities.
"Duly Adopted" means, with respect to the Charter Amendment, duly
adopted in accordance with the General Corporation Law of the State of Delaware
and duly filed with the Secretary of State of Delaware.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Excluded Stock" means (i) shares of Common Stock issuable upon
exercise of any warrants or options of the Company outstanding on the Original
Issuance Date, (ii) shares of Common Stock issued as consideration pursuant to
any acquisition by the Company or any Subsidiary of any business or assets for
which the consent or approval of certain Holders is required pursuant to the
Investors' Rights Agreement and has been obtained, (iii) shares of Common Stock
issued pursuant to the conversion of the Securities, (iv) shares of Common Stock
issued as consideration pursuant to any Asset Acquisition by the Company or any
Subsidiary of any business or assets if (x) the total consideration paid in such
Asset Acquisition is less than $25 million (based on the total cash
consideration, total Indebtedness assumed by the Company and its Subsidiaries
and the Fair Market Value of the shares of Common Stock issued and the other
property paid) and (y) the Consolidated Net Income per outstanding share of
Common Stock for the immediately preceding full twelve month period giving pro
forma effect to such acquisition, the Acquired Indebtedness arising out of such
acquisition, the Indebtedness incurred and the shares of Common Stock issued in
connection with such acquisition, in each case, as if such Asset Acquisition was
consummated at the beginning of such period is greater than the actual
Consolidated Net Income per outstanding share of Common Stock for such period,
(v) shares of Securities issued as dividends to the Holders, (vi) shares of
Common Stock or options issued pursuant to any Company employee incentive or
benefit arrangement existing on the date hereof pursuant to the terms thereof on
the date hereof, (vii) shares of Common Stock issued pursuant to obligations to
pay earnouts with respect to the nine Asset Acquisitions described on Schedule I
hereto in accordance with the agreements relating thereto as in effect on the
date of the Investors' Rights Agreement, and (viii) up to 1,500,000 shares of
Common Stock to be issued pursuant to the long term equity incentive plan
described on Schedule 3.14 to the Securities Purchase Agreement. So long as
Apollo Stockholders constitute Requisite Holders, Apollo Stockholders may by
written consent delivered to the Company include any Common Stock or options
with respect thereto issued pursuant to any Company employee incentive or
benefit arrangement now existing or hereafter created within the definition of
"Excluded Stock".
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"Fair Market Value" means, as to any security, the Twenty Day Average
of the average closing prices of such security's sales on all domestic
securities exchanges on which such security may at the time be listed, or, if
there have been no sales on any such exchange on any day, the average of the
highest bid and lowest asked prices on all such exchanges at the end of such
day, or, if on any day such security is not so listed, the average of the
representative bid and asked prices quoted in the NASDAQ Stock Market as of 4:00
P.M., New York City time, on such day, or, if on any day such security is not
quoted in the NASDAQ Stock Market, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as reported by
the National Quotation Bureau, Incorporated, or any similar or successor
organization (and in each such case excluding any trades that are not bona fide,
arm's length transactions). If at any time such security is not listed on any
domestic securities exchange or quoted in the NASDAQ Stock Market or the
domestic over-the-counter market, the "Fair Market Value" of such security shall
be the fair market value thereof as determined in accordance with the Appraisal
Procedure, using an appropriate valuation method, assuming an arms-length sale
to an independent party. In determining the fair market value of any class or
series of Common Stock, a sale of all of the issued and outstanding Common Stock
of the Corporation will be assumed, without giving regard to the lack of
liquidity of such stock due to any restrictions (contractual or otherwise)
applicable thereto or any discount for minority interests and assuming the
conversion or exchange of all securities then outstanding that are convertible
into or exchangeable for Common Stock and the exercise of all rights and
warrants then outstanding and exercisable to purchase shares of such stock or
securities convertible into or exchangeable for shares of such stock; provided,
however that such assumption will not include those securities, rights and
warrants convertible into Common Stock where the conversion, exchange or
exercise price per share is greater than the fair market value; provided,
further, however, that fair market value shall be determined with regard to the
relative priority of each class or series of Common Stock (if more than one
class or series exists.) "Fair Market Value" means with respect to property
other than securities, the "fair market value" determined in accordance with the
Appraisal Procedure.
"First Redemption Date" means the fifth anniversary of the Original
Issuance Date, i.e., April 30, 2004.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Original Issuance
Date.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or nominee thereof.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means with respect to any Person, without duplication,
(i) all Obligations of such Person for borrowed money, (ii) all Obligations of
such Person evidenced by
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bonds, debentures, notes or other similar instruments, (iii) all Capitalized
Lease Obligations of such Person, (iv) all Obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business), (v) all Obligations for the reimbursement of any
obligor on any letter of credit, banker's acceptance or similar credit
transaction, (vi) guarantees and other contingent obligations in respect of
Indebtedness referred to in clauses (i) through (v) above and clause (viii)
below, (vii) all Obligations of any other Person of the type referred to in
clauses (i) through (vi) which are secured by any lien on any property or asset
of such Person, the amount of such Obligation being deemed to be the lesser of
the fair market value of such property or asset or the amount of the Obligation
so secured, (viii) all Obligations under currency agreements and interest swap
agreements of such Person and (ix) all Disqualified Capital Stock issued by such
Person with the amount of Indebtedness represented by such Disqualified Capital
Stock being equal to the greater of its voluntary or involuntary liquidation
preference and its maximum fixed repurchase price, but excluding accrued
dividends, if any. For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified Capital
Stock as if such Disqualified Capital Stock were purchased on any date on which
Indebtedness shall be required to be determined pursuant to this Indenture, and
if such price is based upon, or measured by, the fair market value of such
Disqualified Capital Stock, such fair market value shall be determined
reasonably and in good faith by the Board of Directors of the issuer of such
Disqualified Capital Stock. For purposes hereof, "Indebtedness" shall exclude
all (i) contingent payment obligations incurred in the ordinary course of the
Company and its Subsidiaries' business with respect to surety bonds, performance
bonds and similar instruments, to the extent they are not secured by any lien on
assets of the Company or its Subsidiaries and do not secure other Indebtedness
of the Company and (ii) earnout obligations with respect to Asset Acquisitions
payable in the form of Common Stock of the Company that is not Disqualified
Capital Stock.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
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"Investment" means, with respect to any Person, any direct or indirect
loan or other extension of credit (including, without limitation, a guarantee)
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 by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude extensions of trade credit by the
Company and its Subsidiaries on commercially reasonable terms in accordance with
normal trade practices of the Company or such Subsidiary, as the case may be.
"Investors' Rights Agreement" means the Investors' Rights Agreement
dated as of March 22, 1999, as amended by Amendment No. 1 to the Investors'
Rights Agreement dated as of April 6, 1999 among the Company and Boss Investment
LLC, as the same may be amended from time to time.
"Liquidation" means any voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the Company, other than any
dissolution, liquidation or winding up in connection with any reincorporation of
the Company in another jurisdiction.
"Management Group" means those individuals listed on Schedule II
attached hereto.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity thereof or by declaration of
acceleration, redemption or otherwise.
"NASD" means the National Association of Securities Dealers, Inc.
"Nasdaq Stock Market" means the stock exchange regulated by the NASD.
"Notice of Default" has the meaning specified in Section 501.
"Obligations" means all obligations for principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officers' Certificate" means a certificate delivered to the Trustee
and signed by (a) the Chairman of the Board, the Chief Executive Officer, the
President or any Vice President of the Company and (b) the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
One of the officers signing an Officers' Certificate given pursuant to Section
1004 shall be the principal executive, financial or accounting officer of the
Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, and who shall be reasonably
acceptable to the Trustee.
"Original Issuance Date" means the first date of issuance of the
Securities; i.e., April 30, 1999.
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"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount have
been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such
Securities; provided, that if such Securities, or portions
thereof, are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of
which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid
obligations of the Company; provided, however, that in
determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent
or waiver hereunder, Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and premium, if any, or interest on any Securities on behalf of the
Company.
"Payment Blockage Period" has the meaning specified in Section 1203.
"Permitted Holders" means the Apollo Stockholders and the Management
Group.
"Permitted Junior Securities" means the Securities, and, any other
debt or equity securities of the Company or any successor corporation issued
pursuant to a plan of reorganization or readjustment of the Company that are
subordinated to the payment of all then outstanding Senior Indebtedness of the
Company at least to the same extent that the Securities are subordinated to the
payment of all Senior Indebtedness of the Company on the Original Issuance Date,
so long as (a) the effect of the use of this defined term in the subordination
provisions contained in Article XII is not to cause the Securities to be treated
as part of: (1) the same class of claims as the Senior Indebtedness of the
Company; or (2) any class of claims pari passu with, or senior to, the Senior
Indebtedness of the Company for any payment or distribution
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in any case or proceeding or similar event relating to the liquidation,
insolvency, bankruptcy, dissolution, winding up or reorganization of the
Company; and (b) to the extent that any Senior Indebtedness of the Company
outstanding on the date of consummation of any such plan of reorganization or
readjustment is not paid in full in cash on such date, either: (1) the holders
of any such Senior Indebtedness not so paid in full in cash have consented to
the terms of such plan or reorganization or readjustment; or (2) such holders
receive securities which constitute Senior Indebtedness of the Company (which
are guaranteed on the same basis as the theretofore outstanding Senior
Indebtedness) and which have been determined by the relevant court to constitute
satisfaction in full in money or money's worth of any Senior Indebtedness of the
Company (and any related guaranties) not paid in full in cash.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" of any Person means any Capital Stock of such Person
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or upon liquidation.
"Record Date" means either a Regular Record Date or a Special Record
Date, as applicable.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" has the meaning specified in Section 203.
"Regular Record Date", for the interest payable on any Interest
Payment Date means the April 15, July 15, October 15 or January 15, (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date.
"Representative" means the indenture trustee or other trustee, agent
or representative in respect of any Designated Senior Indebtedness; provided
that if, and for so long as, any Designated Senior Indebtedness lacks such a
representative, then the Representative for such Designated Senior Indebtedness
shall at all times constitute the holders of a majority in outstanding principal
amount of such Designated Senior Indebtedness in respect of any Designated
Senior Indebtedness.
"Repurchase Date" has the meaning specified in Section 1401.
"Repurchase Price" has the meaning specified in Section 1401.
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"Requisite Holders" means Holders of a majority in principal amount of
the Outstanding Securities.
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Subsidiary of any property, whether owned by
the Company or any Subsidiary at the Original Issuance Date or later acquired,
which has been or is to be sold or transferred by the Company or such Subsidiary
to such Person or to any other Person from whom funds have been or are to be
advanced by such Person on the security of such property.
"Sale of the Company" shall mean (i) the sale or other disposition,
directly or indirectly, of all or substantially all of the Company's assets in
one transaction or a series of transactions or (ii) the merger or consolidation
of the Company with or into another Person, in the case of clause (ii) only,
under circumstances in which the holders of Voting Stock entitled to cast a
majority of the votes entitled to be cast by the holders of the Voting Stock of
the Company, immediately prior to the merger or consolidation, own Voting Stock
entitled to cast less than a majority of the votes entitled to be cast by the
holders of the Voting Stock of the Company or the surviving or resulting Person
or acquirer, as the case may be, immediately following such merger or
consolidation. A sale (or sales) of one or more Subsidiaries of the Company
(whether by way of merger, consolidation, reorganization or sale of all or
substantially all assets or securities) which constitutes all or substantially
all of the consolidated assets of the Company shall be deemed a Sale of the
Company.
"Securities" has the meaning specified in the Recitals hereof.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute or statutes thereto.
"Securities Purchase Agreement" means the Securities Purchase
Agreement dated as of March 22, 1999 among the Company and Boss Investment, LLC,
as the same may be amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Credit Facility Indebtedness" means all Obligations of the
Company under the Credit Facility (including obligations to pay principal and
interest (including any interest accruing subsequent to the filing of a petition
of bankruptcy at the rate provided in the Credit Facility, whether or not such
interest is an allowed claim under applicable law), reimbursement obligations
under letters of credit, fees, expenses and indemnities).
"Senior Indebtedness" means principal of, premium, if any, and accrued
and unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on any Indebtedness of the
Company, whether outstanding on the Original Issuance Date or thereafter,
created, incurred or assumed. Without limiting the generality of the foregoing,
"Senior Indebtedness" shall include (i) the principal of, premium, if any,
interest (including any interest
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accruing subsequent to the filing of a petition of bankruptcy at the rate
provided for in the documentation with respect thereto, whether or not such
interest is an allowed claim under applicable law) on, and all other amounts
owing by the Company in respect of, all Obligations of every nature of the
Company under (x) the Credit Facility, including, without limitation,
obligations to pay principal and interest, reimbursement obligations under
letters of credit, fees, expenses and indemnities, (y) all Interest Swap
Obligations (including guarantees thereof) and (z) all obligations under
Currency Agreements (including guarantees thereof), in each case whether
outstanding on the Original Issuance Date or thereafter incurred and (ii)
Indebtedness of the Company and its Subsidiaries incurred under the Senior
Subordinated Notes and the Senior Subordinated Notes Indenture in an aggregate
principal amount not to exceed $200.0 million less the amount of any repayments
of principal thereof after the Original Issuance Date. Notwithstanding the
foregoing, "Senior Indebtedness" shall not include (i) any Indebtedness of the
Company to a Subsidiary of the Company, (ii) Indebtedness to, or guaranteed on
behalf of, any director, officer or employee of the Company or any Subsidiary of
the Company (including, without limitation, amounts owed for compensation) other
than a shareholder who is a lender (or an Affiliate of a lender) under the
Credit Facility, (iii) liabilities to trade creditors incurred in the ordinary
course of business consistent with past practice in connection with obtaining
goods, materials or services, (iv) Indebtedness represented by Disqualified
Capital Stock, (v) any liability for federal, state, local or other taxes owed
or owing by the Company, (vi) that portion of any Indebtedness incurred in
violation of Section 1007 (except Senior Credit Facility Indebtedness not to
exceed $350 million in aggregate principal amount, and all related interest,
fees and indemnities) (but, as to any such obligation, no such violation shall
be deemed to exist for purposes of this clause (vi) if the holder(s) of such
obligation or their representative shall have received an officers' certificate
of, or a representation and warranty from, 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
Section 1007 of this Indenture), (vii) 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 or any Subsidiary of the Company and
(viii) any Indebtedness which is, by its express terms or the terms of any
instrument creating, evidencing or governing the same, subordinated or junior in
right of payment to, the Securities.
"Senior Subordinated Notes" means the Company's 101/2 % Senior
Subordinated Notes due 2009 issued pursuant to the Senior Subordinated Notes
Indenture, as in effect on the Original Issuance Date.
"Senior Subordinated Notes Indenture" means the Indenture dated as of
April 30, 1999, among the Company and IBJ Whitehall Bank & Trust Company, as
Trustee, relating to the Company's 101/2 % Senior Subordinated Notes due 2009.
"Significant Subsidiary" has the meaning ascribed to it under
Regulation S-X promulgated under the Exchange Act; provided, that, for purposes
of Section 501 hereof, the term "Significant Subsidiary" shall not include any
Subsidiary designated as an "Unrestricted Subsidiary", as defined in the Senior
Subordinated Notes Indenture.
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"Special Interest" in respect of a repurchase of a Security (or a
portion thereof) upon a Change of Control or a conversion of a Security (or
portion thereof) means the amount of interest that would have accrued on such
Security (or portion thereof being converted or repurchased) from the Repurchase
Date or Conversion Date, as applicable, through the First Redemption Date, as if
such Security (or portion thereof) had not been repurchased or converted,
provided that the aggregate amount of Special Interest payable in respect of a
conversion shall not exceed 30 months of interest unless such conversion is in
connection with a Change of Control.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary", with respect to any Person, means (i) any corporation of
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Total Conversion Amount" means the sum of (i) the Converted Amount
plus (ii) unless converted after any Regular Record Date and on or prior to the
next succeeding Interest Payment Date in which case the provisions of the last
paragraph of Section 307 shall apply, accrued and unpaid interest on the
Converted Amount through the Conversion Date plus (iii) if the Conversion Date
is prior to the First Redemption Date, an amount equal to Special Interest on
the Converted Amount.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as amended
and as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Twenty Day Average" means, with respect to any prices and in
connection with the calculation of Fair Market Value, the average of such prices
over the twenty Business Days ending on the Business Day immediately prior to
the day as of which "Fair Market Value" is being determined.
"Vice President", when used with respect to the Company means any vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
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"Voting Stock" of a Person means any class or all classes of capital
stock or other interests (including partnership interests) or Indebtedness of
such Person then outstanding and normally entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
Person of which all the outstanding voting securities (other than in the case of
a foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto; (b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based; (c) a statement that, in the opinion of each
such individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(b) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by or
covered by an opinion of any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certification or Opinion of
Counsel unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate of
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public officials or upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may be proved in any
manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 701)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any Act by the
Holders pursuant to Section 501, 502 or 512.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer therefor or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
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(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any Act of Holders or other documents provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at the address specified in the first paragraph of this
Indenture or such other address as previously furnished in writing by the
Trustee, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company, addressed to it
at the address of its principal executive offices specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail any notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of
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the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, but without regard to the
principles of conflicts of laws of such State.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal and premium if any, or conversion of the Securities need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity, or on such last day for conversion; provided, that no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Stated Maturity or last day for conversion, as the case may be.
SECTION 114. No Security Interest Created.
Nothing in this Indenture or in the Securities, express or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar
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legislation, as now or hereafter enacted and in effect in any jurisdiction where
property of the Company or its Subsidiaries is or may be located.
SECTION 115. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
shareholder, officer or director, as such, past, present or future, of the
Company or any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers or
directors, as such, of the Company or any successor Person, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any Security or implied therefrom; and that any and all such personal
liability of every name and nature, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, shareholder, officer or director, as such, because of
the creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any
Security or implied therefrom, are hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issuance of such Security.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall
be in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with any law or with the rules of any securities exchange on
which the Securities are listed or as may, consistently herewith, be determined
by the officers executing such Securities, as evidenced by their execution of
the Securities.
The definitive Securities (other than a Global Security) shall be
printed, lithographed or engraved or produced by any combination of these
methods on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may be
listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities. A Global Security may be in
the foregoing form or may be in typewritten form.
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SECTION 202. Form of Face of Security.
A legend in substantially the following form shall appear on the face
of each Security (unless otherwise permitted by the provisions of Section
313(b)):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT
IN COMPLIANCE THEREWITH. THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER
AS SET FORTH IN THE INDENTURE DATED AS OF APRIL 30, 1999.
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID"), AS
DEFINED IN SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND
THE REGULATIONS THEREUNDER. FOR INFORMATION ABOUT THE ISSUE PRICE OF THIS DEBT
INSTRUMENT, THE AMOUNT OF OID, THE ISSUE DATE, AND THE YIELD TO MATURITY,
CONTACT THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT 800 CONNECTICUT AVENUE,
N.W., SUITE 1111, WASHINGTON, D.C. 20006.
A legend in substantially the following form shall appear on the face
of each Global Security:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
REFERRED TO BELOW AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE
OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY
AGENT THEREOF AS THE OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
A legend in substantially the following form shall also appear on the
face of each Global Security for which the Depository Trust Company is to be the
Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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 INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
SECURITIES IN DEFINITIVE REGISTERED FORM, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY
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OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY.
BUILDING ONE SERVICES CORPORATION
7 1/2% Convertible Junior Subordinated Debentures Due 2012
No. ________ $___________
BUILDING ONE SERVICES CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
__________________________, or registered assigns, upon presentment and
surrender hereof, the principal sum of ________________ Dollars on _______,
2012, and to pay interest thereon from and including the date of the initial
issuance of Securities under this Indenture or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly on February 1, May 1, August 1 and November 1, in each year,
commencing August 1, 1999 at the rate of 7 1/2% per annum (provided, that, if
the Charter Amendment has not been Duly Adopted by the Charter Amendment
Deadline, the interest rate applicable to the principal sum of the Securities
shall be increased to 12 1/2% from and after the Charter Amendment Deadline
until the date the Charter Amendment is Duly Adopted, whereupon it shall revert
to 7 1/2% for the periods thereafter), until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the Close of Business on the Regular Record Date
for such interest, which shall be the April 15, July 15, October 15 or January
15 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. On any Interest Payment Date occurring on or prior to the
third anniversary of the Original Issuance Date, the Company shall pay interest
on this Security through the issuance of additional Securities ("Additional
Securities"), provided that the Company may, at its option, pay such interest in
whole in cash. On any Interest Payment Date occurring after the third
anniversary and on or prior to the fifth anniversary of the Original Issuance
Date, the Company shall pay interest on this Security through the issuance of
Additional Securities, provided that at the option of either the Requisite
Holders or the Company, the Company shall pay such interest in whole in cash.
Such Additional Securities shall be in an aggregate principal amount equal to
the amount of interest that would be payable with respect to this Security on
such Interest Payment Date (less all cash payments, if any, made in respect of
interest payable on such Interest Payment Date) and such Additional Securities
shall be identical to the Securities otherwise issued. Such Additional
Securities shall be issued only in denominations of $1,000 and multiples
thereof, except as provided in Section 302. Any interest due and payable in
Additional Securities which cannot be paid in Securities because such portion of
the payment would require the issuance of a Security in a denomination other
than a multiple of $1,000 shall be paid in cash, except as provided in Section
302. For purposes of the foregoing sentence, all Securities owned of record by a
Holder shall be aggregated. Except as expressly provided herein, the term
"Securities" shall include all
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Additional Securities that may be issued pursuant to this paragraph. From and
after the fifth anniversary of the Original Issuance Date, all interest on this
Security shall be paid in cash. Payment of the principal of and premium, if any,
and interest on this Security payable in cash will be made at the office or
agency of the Company maintained for that purpose pursuant to Section 1002 of
the Indenture, in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest in cash
may be made by check mailed to the address of the Person entitled thereto as
such address shall appear in the Security Register.
Upon a conversion of this Security or upon a repurchase of this
Security upon a Change of Control, the Holder shall be paid additional interest
equal to the Special Interest with respect thereto, as set forth in this
Security and in this Indenture.
Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date, as
applicable, and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the Close of Business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Notice of a Special Record Date shall be
given to Holders of Securities not less than ten days prior to such Special
Record Date.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _________________ BUILDING ONE SERVICES CORPORATION
Attest: By _________________________
{Title}
___________________
{Title}
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 71/2% Convertible Junior Subordinated Debentures Due
2012 (herein called the "Securities"), limited in aggregate principal
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amount to $100,000,000 plus the aggregate principal amount of all Additional
Securities issued under the Indenture, dated as of April 30, 1999 (herein called
the "Indenture"), between the Company and United States Trust Company of New
York, as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and
delivered.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time to convert
this Security (or any portion of the principal amount hereof which is $1,000 or
an integral multiple thereof), into a number of fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock of the Company calculated by dividing the Total Conversion Amount
of this Security (or if less than the entire principal amount of the Security is
being converted, the Total Conversion Amount of the portion being converted) by
the Conversion Price in effect at the Close of Business on the Conversion Date.
Conversion shall be effected by surrender of this Security, duly
endorsed or assigned to the Company or in blank, to the Company at its office or
agency maintained for that purpose pursuant to Section 1002 of the Indenture,
accompanied by written notice to the Company in the form provided in this
Security (or such other notice as is acceptable to the Company) that the Holder
hereof elects to convert this Security, or if less than the entire principal
amount hereof is to be converted, the portion hereof to be converted, except in
case this Security or a portion hereof is called for redemption, then this
Security or such portion hereof may be converted until and including, but
(unless the Company defaults in making the payment due upon redemption) not
after, the Close of Business on the Business Day immediately preceding the
Redemption Date.
No fractional shares or scrip representing fractions of shares will be
issued on conversion, but instead of any fractional share the Company shall pay
a cash adjustment as provided in the Indenture. The Conversion Price is subject
to adjustment as provided in the Indenture. In addition, the Indenture provides
that in case of certain consolidations, mergers or statutory exchanges of
securities with another corporation to which the Company is a party or the sale
or conveyance of the assets of the Company substantially as an entirety, the
Indenture shall be amended, without the consent of any Holders of Securities, so
that this Security, if then outstanding, will be convertible thereafter, during
the period this Security shall be convertible as specified above, only into the
kind and amount of securities, cash and other property receivable upon the
consolidation, merger, statutory exchange or transfer by a holder of the number
of shares of Common Stock into which this Security was convertible immediately
prior to such consolidation, merger, statutory exchange or transfer (assuming
such holder of Common Stock failed to exercise any rights of election and
received per share the kind and amount of consideration received per share by a
plurality of non-electing shares).
The Securities are subject to redemption upon not less than 30 and not
more than 60 days' notice by mail, at any time on or after the First Redemption
Date, as a whole and not less than in whole, at the election of the Company, at
103% of the sum of (a) the principal amount thereof plus (b) accrued interest
to the Redemption Date (the "Redemption Price"),
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provided that interest installments whose Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the Close of Business on the relevant
Record Dates, all as provided in the Indenture.
If all accrued interest on the Securities has not been paid, the
Company may not purchase or acquire any Security otherwise than pursuant to a
purchase or exchange offer made on the same terms to all holders of the
Securities.
In certain circumstances involving the occurrence of a Change in
Control (as defined in the Indenture), the Holder hereof shall have the right to
require the Company to repurchase this Security (or any portion of the principal
amount hereof which is $1,000 or an integral multiple thereof) at 100% of the
principal amount hereof (or of such portion), together with accrued interest to
the Repurchase Date plus, if applicable, Special Interest, all of which shall be
paid in cash but interest installments whose Stated Maturity is on or prior to
such Repurchase Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the Close of Business on the
relevant Record Dates, all as provided in the Indenture.
In the event of conversion or repurchase of this Security in part only,
a new Security or Securities for the unconverted or unpurchased portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
Any Securities called for redemption, unless surrendered for conversion
by the Close of Business on the Business Day immediately preceding the date
fixed for redemption, are subject to being purchased from the Holder of such
Securities at the redemption price by one or more investment banking firms or
other purchasers who may agree with the Company to purchase such Securities and
convert them into Common Stock.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full in cash or Cash Equivalents of all Senior Indebtedness, and this
Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided, and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their
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<PAGE>
consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed or to convert this Security as provided herein and
in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and premium,
if any, and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, in each case, with an appropriate signature
guarantee, and thereupon one or more new Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in fully registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange except as provided in the Indenture. The Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, except as provided in this Security, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
{FORM OF CONVERSION NOTICE}
TO BUILDING ONE SERVICES CORPORATION:
The undersigned registered owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion hereof (which is
$1,000 or a multiple thereof) designated below, into shares of Common Stock in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon the
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conversion, together with any check in payment for a fractional share and any
Security representing any unconverted principal amount hereof, be issued and
delivered to the registered owner hereof unless a different name has been
provided below. If shares or any portion of this Security not converted are to
be issued in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto.
Dated: _________________________
-------------------------
-------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to Rule
17Ad-15 under the Exchange Act.
______________________________
Signature Guarantee
Fill in for registration of shares of Common Stock if they are to be
delivered, or Securities if they are to be issued, other than to and in the name
of the registered owner:
______________________________
(Name)
______________________________
(Street Address)
______________________________
(City, State and Zip code)
(Please print name and address)
Register: _____ Common Stock
_____ Securities
(Check appropriate line(s)).
Principal amount to be converted (if less than all):
$__________.000
______________________________
Social Security or other Taxpayer
Identification Number of owner
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{Form of Option of Holder to Elect Purchase}
If you want to elect to have this Security purchased by the Company
pursuant to Section 1401 of the Indenture, check this box [_].
If you want to elect to have only part of the Security purchased by
the Company pursuant to Section 1401 of the Indenture, state the amount you
elect to have purchased: $ _____
Date:____________ Your Signature ____________________________________________
(Sign exactly as your name appears on the Security)
Tax Identification No.: _______________________
______________________
Signature Guarantee
SECTION 204. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
_____________________, as Trustee
By ____________________________
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $100,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906, 1302 or 1405 and except for Additional Securities.
The Securities shall be known and designated as the "7 1/2%
Convertible Junior Subordinated Debentures Due 2012" of the Company. Their
Stated Maturity shall be April 30, 2012 and they shall bear interest at the rate
of 7 1/2% per annum (provided, that, if the Charter Amendment has not been Duly
Adopted by the Charter Amendment Deadline, the interest rate
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applicable to the principal amount of the Securities shall be increased to
121/2% from and after the Charter Amendment Deadline until the date the Charter
Amendment is Duly Adopted, whereupon it shall revert to 71/2% for the periods
thereafter), from and including the Original Issuance Date or from and including
the most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly on February 1, May 1, August
1, and November 1, commencing August 1, 1999, until the principal thereof is
paid or made available for payment. Each payment of interest shall include
interest accrued to but excluding the Interest Payment Date on which payment is
to be made. The Holders of the Securities shall also be entitled to receive
Special Interest from time to time to the extent provided in the Securities.
The principal of and premium, if any, and interest on the Securities
shall be payable at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that at the option of the
Company payment of interest in cash may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register.
The Securities shall be redeemable as provided in Article XI.
The Securities shall be subordinated in right of payment to the prior
payment in full in cash or Cash Equivalents of all Obligations on or relating to
Senior Indebtedness as provided in Article XII.
The Securities shall be convertible as provided in Article XIII.
The Securities shall be subject to repurchase at the option of the
Holder as provided in Article XIV.
SECTION 302. Denominations.
The Securities shall be issuable only in fully registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof;
provided that the Company may issue fractional Securities to the extent that it
- --------
is prohibited under the Credit Facility from paying cash in lieu of issuing such
fractional Securities.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal or a facsimile thereof reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall either at one time or from time to time pursuant
to such instructions as may be described therein authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of the Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon receipt of a Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security or Securities in lieu of which it is
issued.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of a like
principal amount of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
For purposes of this Section 304 each Global Security shall be
considered a definitive Security.
SECTION 305. Registration, Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering
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<PAGE>
Securities and transfers of Securities as herein provided. At all reasonable
times the Security Register shall be open for inspection by the Company.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at the office or agency
maintained for that purpose. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
(b) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange. Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing, and, in the case of a transfer, with an
appropriate guarantee of signature.
No service charge shall be made for any registration of transfer or
exchange of Securities except as provided in Section 306. The Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or
exchange of Securities, other than exchanges pursuant to Section 304, 906, 1302
or 1405 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
pursuant to Section 1105 and ending at the Close of Business on the day of such
mailing, (ii) to register the transfer of or exchange of any Security to be
redeemed or (iii) to register the transfer or exchange of any Securities
surrendered for conversion or repurchase upon the occurrence of a Change in
Control.
The provisions of clauses (1), (2), (3), (4) and (5) below shall apply
only to Global Securities;
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
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<PAGE>
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may be
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (i) such Depositary (A) has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) has ceased to be a clearing
agency registered under the Exchange Act or (ii) the Company at any time in
its sole discretion determines not to have Global Securities and shall so
notify the Depositary and Trustee.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion thereof
shall be registered in such names as the Depositary for such Global
Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Article III or
otherwise, shall be authenticated and delivered in the form of, and shall
be, a Global Security, unless such Security is registered in the name of a
Person other than the Depositary for such Global Security or a nominee
thereof.
(5) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all
purposes under this Indenture and the Securities, and owners of beneficial
interests in a Global Security shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such owner's beneficial interest in
a Global Security will be shown only on, and the transfer of such interest
shall be effected only through records maintained by the Depositary or its
nominee or its Agent Members and such owners of beneficial interests in a
Global Security will not be considered the owners or holders thereof.
Neither the Company nor the Trustee will have any responsibility or
obligation to the Depositary or any of its Agent Members with respect to
(i) the accuracy of any records maintained by the Depositary (ii) the
payment by the Depositary or any Agent Members of any amount due to any
owner of beneficial interests in a Global Security in respect of any
Securities, (iii) the delivery of any notice by the Depositary or any Agent
Member, or (iv) any other action taken by the Depositary or any Agent
Members.
(c) Nothing contained in this Section 305 shall be deemed to impair
the Holders' rights to convert the Securities.
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<PAGE>
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence
to their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the Close of Business on the Regular Record Date for such interest. At the
option of the Company, cash interest on any Security may be paid by mailing
checks to the addresses of the Holders thereof as such addresses appear in the
Securities Register.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clauses (a) or (b) below:
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(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the Close of Business on a Special Record Date for
the payment of such Defaulted Interest which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, which payment date shall be at least 30 calendar days after
such notice is delivered by the Company to the Trustee (or such shorter period
as is satisfactory to the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon, the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder at his address as it appears
in the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the Close of Business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (b).
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the Close of Business on such Regular Record Date; provided,
however, that Securities so surrendered for conversion shall (except in the case
of Securities or portions thereof (i) which have been called for redemption or
(ii) as to which there exists a default in the payment of interest thereon) be
accompanied by, at the option of the Holder of this Security, either (i) payment
in funds acceptable to the Company of an amount equal to the interest payable on
such
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Interest Payment Date on the principal amount being surrendered for conversion
or (ii) the delivery of Securities to the Company for surrender having a
principal amount equal to the interest payable on such Interest Payment Date on
the principal amount being surrendered for conversion.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and premium, if
any, and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or conversion shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 311. CUSIP Number.
The Company in issuing the Securities may use a "CUSIP" number and, if
it does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that 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 Securities and that reliance may be placed only
on the other identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any change in the CUSIP number.
SECTION 312. Restrictions on Transfer.
From and after the Original Issuance Date and their respective dates
of issuance, as the case may be, neither the Securities, any Additional
Securities nor any interest therein shall be transferable except upon the
conditions specified in Sections 312 through 314, which conditions are intended
to ensure compliance with the provisions of the Securities Act in respect
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of the transfer of any of the Securities, any Additional Securities or any
interest therein. Each Holder will cause any proposed transferee of its
Securities and any Additional Securities (or any interest therein) to agree that
any transfer thereof shall be subject to the provisions and upon the conditions
specified in Sections 312 through 314.
SECTION 313. Restrictive Legends.
(a) Each certificate of Securities shall (unless otherwise permitted
by the provisions of Section 313(b) and Section 314) include a legend in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INDENTURE DATED AS OF APRIL
30, 1999.
(b) Subject to Section 314, any holders of Securities registered
pursuant to the Securities Act and qualified under applicable state securities
laws may exchange such Securities on transfer for new Securities that shall not
bear the legend set forth in paragraph (a) of this Section 313.
SECTION 314. Notice of Proposed Transfers.
Upon any proposed transfer of Securities, the Company and the Trustee
shall register the transfer of such Securities if the Company and the Trustee
shall have received (i) to the extent required to ensure compliance with the
Securities Act, an opinion of counsel reasonable satisfactory to the Company,
addressed to the Company, to the effect that the proposed transfer of the
Securities may be effected without registration under the Securities Act, and
(ii) representation letters in form and substance reasonably satisfactory to the
Company to ensure compliance with the provisions of the Securities Act. Each
certificate evidencing the Securities transferred as above provided shall bear
the legend set forth in Section 313(a) except that such certificate shall not
bear such legend if the opinion of counsel referred to above is to the further
effect that neither such legend nor the restrictions on transfer in Sections 312
through 314 are required in order to ensure compliance with the provisions of
the Securities Act.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to rights of conversion or registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
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(a) either
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (B)
Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense,
of the Company, or
(D) are delivered to the Trustee for conversion in
accordance with Article XIII;
and the Company, in the case of (A), (B), (C) or (D) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose an amount sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation for
principal and premium, if any, and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company, including but not limited to all amounts due to the
Trustee under Section 607 hereof;
(c) no Default or Event of Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of any such deposit
or shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other material
agreement or instrument (including the Credit Facility) to which the Company is
a party or by which it is bound; and
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with. Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614 and, if
money shall have been deposited with the Trustee pursuant to subclause (ii) of
Clause (a) of this
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Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and premium, if
any, and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
SECTION 403. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article IV by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article IV until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust with respect to the Securities;
provided, however, that if the Company makes any payment of principal of or any
premium or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of the
Securities to receive such payment from the money so held in trust.
ARTICLE V
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article XII or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon any Security, when it
becomes due and payable, whether or not such payment is prohibited by the
provisions of Article XII, and continuance of such default for a period of 30
days; or
(b) default in the payment of the principal of or premium, if any, on
any Security at its Maturity, whether or not such payment is prohibited by the
provisions of Article XII (including the failure to make a payment to purchase
Securities tendered pursuant to a Change of Control on the date specified for
such payment in the offer to repurchase); or
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(c) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 45 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(d) the failure to pay at final stated maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount of any
Indebtedness of the Company or any Significant Subsidiary of the Company which
failure continues for at least 20 days, or the acceleration of the final stated
maturity of any such Indebtedness if the aggregate principal amount of such
Indebtedness (which acceleration is not rescinded, annulled or otherwise cured
within 20 days of receipt by the Company or such Significant Subsidiary of
notice of any such acceleration), together with the principal amount of any
other such Indebtedness in default for failure to pay principal at final stated
maturity or which has been accelerated (in each case with respect to which the
20 day period described above has passed), aggregates $10.0 million or more at
any time;
(e) a final judgment or final judgments for the payment of money
against the Company or any Significant Subsidiary the entry by a court or courts
of competent jurisdiction of which remain undischarged for a period (during
which execution shall not be effectively stayed, the posting of any required
bond not being deemed an execution for purposes hereof) of 60 days, provided
that the aggregate amount of all such judgments exceeds $10.0 million (net of
amounts to which the Company or such Significant Subsidiary is entitled pursuant
to insurance policies which can reasonably be expected to be paid in the
ordinary course); or
(f) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable Federal or
state bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company or any Significant Subsidiary a 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
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 Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive
days; or
(g) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Company or any
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
it, or the filing by it
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of a petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or any Significant Subsidiary or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such action.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501, a record date shall automatically and without any other action by
any Person be set for the purpose of determining the Holders of Outstanding
Securities entitled to join in such Notice of Default, which record date shall
be the Close of Business on the day the Trustee receives such Notice of Default.
The Holders of Outstanding Securities on such record date (or their duly
appointed agents), and only such Persons, shall be entitled to join in such
Notice of Default, whether or not such Holders remain Holders after such record
date: provided, that unless such Notice of Default shall have become effective
by virtue of the Holders of the requisite principal amount of Outstanding
Securities on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such Notice of
Default shall automatically and without any action by any Person be canceled and
of no further force or effect.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(f) or (g) with respect to the Company) occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities may declare the principal of all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), specifying the respective
Event of Default and stating that it is a "notice of acceleration" (the
"Acceleration Notice"), and the same (i) shall become immediately due and
payable or (ii) if there are any amounts outstanding under the Credit Facility,
shall become immediately due and payable upon the first to occur of an
acceleration under the Credit Facility or 5 Business Days after receipt by the
Company and the Representative under the Credit Facility of such Acceleration
Notice unless all Events of Default specified in the respective Acceleration
Notice have been cured within said five Business Day period. In the case of an
Event of Default specified in Section 501(f) or (g) with respect to the Company,
all unpaid principal of and accrued interest on the Securities then outstanding
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the holders of Securities.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in principal amount of the Outstanding Securities, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay (i) all overdue interest on all Securities, (ii) the principal
of and premium, if any, on any Securities which have become due otherwise than
by such declaration of acceleration and interest thereon
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at the rate borne by the Securities, (iii) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate borne by the
Securities, and (iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(b) all Events of Default, other than the nonpayment of the principal
of Securities which has become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission and waiver shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of any declaration of acceleration, or any
rescission and annulment of any such declaration, pursuant to this Section 502,
a record date shall automatically and without any other action by any Person be
set for the purpose of determining the Holders of Outstanding Securities
entitled to join in such declaration, or rescission and annulment, as the case
may be, which record date shall be the Close of Business on the day the Trustee
receives such declaration, or rescission and annulment, as the case may be. The
Holders of Outstanding Securities on such record date (or their duly appointed
agents), and only such Persons, shall be entitled to join in such declaration,
or rescission and annulment, as the case may be, whether or not such Holders
remain Holders after such record date; provided, that unless such declaration,
or rescission and annulment, as the case may be, shall have become effective by
virtue of Holders of the requisite principal amount of Outstanding Securities on
such record date (or their duly appointed agents) having joined therein on or
prior to the 90th day after such record date, such declaration, or rescission
and annulment, as the case may be, shall automatically and without any action by
any Person be canceled and of no further force or effect.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Security at the Maturity thereof,
the Company will, subject to Article XII of the Indenture, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the whole
amount then due and payable on such Securities for principal and premium, if
any, and interest, and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium, if any, and
on any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
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If an Event of Default specified in Section 503(a) or (b) occurs and
is continuing with respect to the Securities, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the
collection of such sums due and unpaid.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, including filing proofs of claim in federal bankruptcy proceedings,
to take any and all actions authorized under the Trust Indenture Act in order to
have the claims of the Holders and the Trustee allowed in any such proceeding.
In particular, the Trustee shall be authorized to collect and receive any moneys
or other securities or property payable or deliverable upon the conversion or
exchange of the Securities or upon any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of the
Creditors' Committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
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SECTION 506. Application of Money Collected.
Subject to Article XII, any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed
by the Trustee and, in case of the distribution of such money on account of
principal or premium, if any, or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and premium, if any, and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and premium, if any, and interest,
respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default; (b) the Holders of not less than 25% in principal
amount of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder; (c) such Holder or Holders have offered to the
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request; (d) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to institute
any such proceeding; and (e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities; it being understood
and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders, or to obtain or to
seek to obtain priority or preference over any other Holders or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and premium, if any, and (subject to Section
307) interest on such Security on the respective Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date or, in the
case of a repurchase pursuant to Article XIV, on the Repurchase Date) and to
convert such Security in accordance with Article XIII and to institute suit for
the enforcement of
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any such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Requisite Holders shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee; provided, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(c) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall determine that the action so
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directed would involve the Trustee in personal liability or would be unduly
prejudicial to Holders not joining in such direction.
Upon receipt by the Trustee of any such direction, a record date shall
automatically and without any other action by any Person be set for the purpose
of determining the Holders of Outstanding Securities entitled to join in such
direction, which record date shall be the Close of Business on the day the
Trustee receives such direction. The Holders of Outstanding Securities on such
record date (or their duly appointed agents), and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders
after such record date; provided, that unless such direction shall have become
effective by virtue of Holders of the requisite principal amount of Outstanding
Securities on such record date (or their duly appointed agents) having joined
therein on or prior to the 90th day after such record date, such direction shall
automatically and without any action by any Person be canceled and of no further
force or effect.
SECTION 513. Waiver of Past Defaults.
The Requisite Holders may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
(a) in the payment of the principal of or premium, if any, or interest
on any Security, or, without the consent of the Holder of the Security affected,
in the repurchase of any Security or part thereof in accordance with Article
XIV, or
(b) in respect of a covenant or provision hereof which under Article
IX cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. 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, suffered or
omitted by it as Trustee, a court in its discretion may require any party
litigant in such suit to file an undertaking to pay the costs of such suit, and
may assess reasonable costs against any such party litigant, including
reasonable attorneys' fees, in the manner and to the extent provided in the
Trust Indenture Act if the Trustee receives actual notice of any such default;
provided, that this Section shall not be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or in any suit for the enforcement of the right to convert any
Security in accordance with Article XIII.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or
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advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder in
the manner and to the extent provided by the Trust Indenture Act if the Trustee
receives actual notice of any such default; provided, however, that in the case
of any default of the character specified in Section 501(c), no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Notwithstanding the foregoing, the Trustee shall be entitled to withhold notice
of any default hereunder to the extent permitted by Section 315(b) of the Trust
Indenture Act.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel satisfactory to it and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee and any Authenticating Agent assume no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee and any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the
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Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. The
Trustee or any Paying Agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder as may be mutually agreed upon in
writing by the Company and the Trustee (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) except to the extent any such expense,
disbursement or advance may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of enforcing this Indenture against the
Company (including this Section 607) and of defending itself against any claim
(whether asserted by Holder or by the Company) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
(d) As security for the performance of the obligations of the Company
under this Section 607, the Trustee shall have a lien prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, or any State or Territory or the District of Columbia that (a) is
eligible pursuant to the Trust Indenture Act to act as such, (b) has (or, in the
case of a corporation included in a bank holding company system, whose related
bank holding company has) a combined capital and surplus of at least $50,000,000
and (c) has an office in the Borough of Manhattan, The City of New York as
required by Section 1002. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of a Federal or state
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. No obligor upon the Securities or Affiliate of such obligor shall
serve as Trustee upon the Securities. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of
a majority in principal amount of the Outstanding Securities delivered to the
Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for the last six months, or
(ii) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
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then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee, or (B) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee and
such successor Trustee shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611 become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee
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hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311 of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311 of the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall
be authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Person organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such Person shall be otherwise eligible under this Section,
without the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an
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Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail notice of such appointment by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the Security
Register. Any successor Authenticating Agent upon acceptance of its appointment
under this Section shall become vested with all the rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible to act as such under the provisions of this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have represented to the Trustee that it is eligible for appointment as
Authenticating Agent under this Section and to have agreed with the Trustee
that: it will perform and carry out the duties of an Authenticating Agent as
herein set forth, including among other things the duties to authenticate
Securities when presented to it in connection with the original issuance and
with exchanges, registrations of transfer or redemptions or conversions thereof
or pursuant to Section 306; it will keep and maintain, and furnish to the
Trustee from time to time as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may reasonably
require; and it will notify the Trustee promptly if it shall cease to be
eligible to act as Authenticating Agent in accordance with the provisions of
this Section. Any Authenticating Agent by the acceptance of its appointment
shall be deemed to have agreed with the Trustee to indemnify the Trustee against
any loss, liability or expense incurred by the Trustee and to defend any claim
asserted against the Trustee by reason of any acts or failures to act of such
Authenticating Agent, but such Authenticating Agent shall have no liability for
any action taken by it in accordance with the specific written direction of the
Trustee.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in lieu of the Trustee's certificate of authentication,
an alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
As Trustee
By_____________________________________
As Authenticating Agent
By_____________________________________
Authorized Officer
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ARTICLE VII
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders and the
Representative under the Credit Facility .
The Company will furnish or cause to be furnished to the Trustee:
(a) quarterly not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require containing all the
information in the possession or control of the Company, or any of its Paying
Agents, other than the Trustee, as to the names and addresses of the Holders as
of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished. Notwithstanding the foregoing, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
(c) the name(s) and address(es) of the Representative(s) under the
Credit Facility who may be entitled to receive an Acceleration Notice pursuant
to Section 502.
SECTION 702. Preservation of Information; Communication to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) The Company, the Trustee and any other Person shall have the
protection of Section 312(c) of the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) On or prior to July 15 of each year commencing July 15, 1999, the
Trustee shall transmit to Holders such reports dated as of May 15 concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
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(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
SECTION 704. Reports by Company .
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act, as amended, shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
SECTION 705. Certain Notices.
(a) The Company shall notify the Trustee promptly after the Charter
Amendment becomes effective.
(b) The Company shall promptly notify the Trustee and, if the Apollo
Stockholders constitute the Requisite Holders, the Apollo Stockholders that hold
Securities of any officers' certificate or any representation or warranty given
pursuant to clause (vi) of the definition of Senior Indebtedness. Such
notification shall include a copy of such certificate or representation or
warranty. The Trustee and such Apollo Stockholders shall be entitled to rely on
such certificate or representation or warranty as if it was addressed to the
Trustee and such Apollo Stockholders.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, unless:
(a) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of and premium, if
any, and interest on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance with
Section 1311;
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(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease does not
adversely affect the validity or enforceability of the Securities; and
(d) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of the
Holders or an additional Event of Default, or to surrender any right or power
herein conferred upon the Company; or
(c) to secure the Securities; or
(d) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Section 1311; or
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(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
(f) to cause the Indenture and the Securities to comply with
applicable law, including the Securities Act and Trust Indenture Act; or
(g) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture; provided, that such action pursuant to this clause (g) shall not
adversely affect the interests of the Holders in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each outstanding Security,
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or make the principal thereof or any premium or interest
thereon payable in any coin or currency other than that provided for in the form
of Security hereinabove set forth or modify the provisions of this Indenture
with respect to the subordination of the Securities in a manner adverse to the
Holders, or impair the right to convert the Securities into Common Stock or to
require the Company to repurchase the Securities upon the occurrence of a Change
in Control, subject to the terms set forth herein, or
(b) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture, or
(c) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby; provided,
however, that this Clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1006, or the deletion of this
proviso, in accordance with the requirements of Section 901(e).
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not (except to the extent required in the case of a
supplemental indenture entered into under Section 901(f)) be obligated to, enter
into any such supplemental indenture which adversely affects in a material way
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act, as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 907. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 902, the Company shall transmit to
the Holders a notice setting forth the substance of such supplemental indenture.
SECTION 908. Effect on Senior Indebtedness.
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Notwithstanding the foregoing, no amendment or modification may be
made to Article XII hereof (or the defined terms used therein) without the
consent of each holder of Senior Indebtedness adversely affected thereby.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of and premium,
if any, and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or agency
(which may be the Corporate Trust Office or other office of the Trustee) where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, where Securities may be surrendered
for exchange, conversion or repurchase in accordance with the terms of this
Indenture and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of any such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind 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 New
York, New York for such purposes. 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.
SECTION 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, on or
before each due date of the principal of and premium, if any, or interest on any
of the Securities, the Company will segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal and
premium, if any, or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, on or prior
to each due date of the principal of and premium, if any, or interest on any
Securities, the Company
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will deposit with a Paying Agent a sum sufficient to pay the principal and any
premium and interest so becoming due, such sum to be held as provided by the
Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (a) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and hold all sums held by it for the payment
of principal of or any premium or interest on the Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided; and (b) at any time during
the continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and premium, if
any, or interest on any Security and remaining unclaimed for two years after
such principal and premium, if any, or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company (which as of the date hereof is December 31)
ending after the date hereof, an Officers' Certificate stating whether or not to
the best knowledge of the signers thereof the Company is in compliance with all
conditions and covenants under this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company
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shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article XIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise,
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1005, 1007 and 1009 if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such covenant or condition shall remain in full force and
effect.
SECTION 1007. Limitation on Incurrence of Indebtedness.
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, acquire, become
liable, contingently or otherwise, with respect to, or otherwise become
responsible for payment of (collectively, "incur") any Indebtedness; except that
(x) the Company and any of its Subsidiaries may incur any Indebtedness if, at
the time such Indebtedness is incurred and after giving effect to the incurrence
thereof, (i) no Default or Event of Default shall have occurred and be
continuing and (ii) the Consolidated Leverage Ratio of the Company is less than
4.0 to 1.0, (y) the Company and its Subsidiaries may incur Indebtedness under
the Credit Facility that would not be permitted under clause (x) above at the
time of such incurrence; provided, that, at the time of such incurrence and
after giving effect to the incurrence of such Indebtedness, the aggregate
outstanding amount of all Indebtedness incurred pursuant to this clause (y)
shall not exceed $50,000,000 and (z) the Company and its Subsidiaries may incur
Indebtedness evidenced by Interest Swap Obligations if such Interest Swap
Obligations are incurred into to protect the Company and its Restricted
Subsidiaries from fluctuations in interest rates on their outstanding
Indebtedness to the extent the notional principal amount of such Interest Swap
Obligations does not, at the time of the incurrence thereof, exceed the
principal amount of the Indebtedness to which such Interest Swap Obligations
relate.
SECTION 1008. Compliance With Investors' Rights Agreement.
The Company shall comply with the covenants applicable to it under the
Investors' Rights Agreement.
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SECTION 1009. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any of its
Subsidiaries to, directly or indirectly, declare or pay any dividend or make any
distribution on or in respect of its Capital Stock to holders of such Capital
Stock other than to the Company or to a Wholly-Owned Subsidiary of the Company.
The Company shall not, and shall not cause or permit any of its Subsidiaries to,
directly or indirectly, (a) purchase, redeem or otherwise acquire or retire for
value any Capital Stock of the Company or any warrants, rights or options to
purchase or acquire shares of any class of such Capital Stock, or (b) make any
principal payment on, purchase, defease, redeem, prepay, decrease or otherwise
acquire or retire for value, prior to any scheduled final maturity, scheduled
repayment or scheduled sinking fund payment, any Indebtedness of the Company
that is subordinate or junior in right of payment to the Securities (each of the
foregoing actions set forth in clauses (a) and (b) being referred to as a
"Restricted Payment"), if at the time of such Restricted Payment or immediately
after giving effect thereto, (i) a Default or an Event of Default shall have
occurred and be continuing or (ii) the Company is not able to incur at least
$1.00 of additional Indebtedness in compliance with Section 1007 or (iii) the
aggregate amount of Restricted Payments (including such proposed Restricted
Payment) made subsequent to the Original Issuance Date (the amount expended for
such purposes, if other than in cash, being the fair market value of such
property as determined reasonably and in good faith by the Board of Directors of
the Company) shall exceed the sum of: (w) 50% of the cumulative Consolidated
Net Income (or if cumulative Consolidated Net Income shall be a loss, minus 100%
of such loss) of the Company earned subsequent to the Original Issuance Date and
to the end of the Company's most recently ended fiscal quarter for which
financial statements are publicly available at the time of such Restricted
Payment (the "Reference Date") (treating such period as a single accounting
period); plus (x) 100% of the aggregate net cash proceeds received by the
Company from any Person (other than a Subsidiary of the Company) from the
issuance and sale subsequent to the Original Issuance Date and on or prior to
the Reference Date of Common Stock of the Company.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, in
whole but not in part, at any time on or after the First Redemption Date at the
Redemption Price specified in the form of Security hereinbefore set forth;
provided, however, that if all accrued interest (including, without limitation,
Additional Interest and Special Interest) on the Securities has not been paid,
the Company may not redeem any Security other than pursuant to a purchase or
exchange offer to all Holders of the Securities.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company as permitted
by any provision of this Indenture shall be made in accordance with such
provision and this Article.
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SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem the Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company, the Company shall, at least 45 days prior to the
Redemption Date fixed by the Company (unless a shorter period shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities to be redeemed.
SECTION 1104. [Reserved.]
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) the CUSIP number (if any),
(d) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest thereon
will cease to accrue on and after said date,
(e) the Conversion Price, the date on which the right to convert the
Securities to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(f) the place or places where such Securities are to be surrendered
for payment of the Redemption Price. Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
At or prior to 10:00 am on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay on such date the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date other than
any Securities called for redemption on that date which have been converted
prior to the Redemption Date.
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If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid for by the Company
at the Redemption Price, on the later of the Redemption Date or the date such
Security is surrendered; provided, however, that installments of interest whose
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the Close of Business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Security called for redemption shall not be so paid for upon
surrender thereof for redemption as provided herein, the principal and premium,
if any, shall, until paid, bear interest from the Redemption Date at the rate
borne by the Security. The Company shall be deemed to have made payment as
provided herein if checks are mailed to the appropriate Persons not later than
the Business Day next subsequent to the Redemption Date.
SECTION 1108. [Reserved.]
SECTION 1109. Conversion Arrangements on Call for Redemption.
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities surrendered for
redemption by an agreement with one or more investment banking firms or other
purchasers to purchase such Securities by paying to the Holders thereof, or to
the Trustee or Paying Agent in trust for such Holders, at or before 10:00 a.m.
on the Redemption Date, an amount not less than the Redemption Price, together
with interest accrued to the Redemption Date, payable by the Company on
redemption of such Securities. Notwithstanding anything to the contrary
contained in this Article XI, the obligation of the Company to pay the
Redemption Price of such Securities, together with interest accrued to the
Redemption Date, shall be satisfied and discharged to the extent such amount is
so paid by such purchasers. Pursuant to such an agreement, any Securities
tendered by the Holder thereof for redemption or not duly surrendered for
conversion by such Holder shall be deemed acquired by such purchasers from such
Holders and simultaneously surrendered by such purchasers for conversion, all as
of immediately prior to the Close of Business on the Redemption Date, subject to
payment of the above amount as aforesaid.
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ARTICLE XII
SUBORDINATION OF SECURITIES
SECTION 1201. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and the Trustee and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, and each
Person holding a Security, whether upon original issuance or transfer,
assignment or exchange thereof, accepts and agrees that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Securities and the payment of all Obligations on each and all of the
Securities, and the amount, if any, of the Repurchase Price payable in respect
of Securities pursuant to Article XIV, are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash or Cash
Equivalents, or such payment duly provided for to the satisfaction of the
holders of the Senior Indebtedness of all Obligations on all Senior
Indebtedness, that the subordination is for the benefit of, and shall be
enforceable directly by, the holders of Senior Indebtedness, and that each
holder of Senior Indebtedness whether now outstanding or hereafter created,
incurred, assumed or guaranteed shall be deemed to have acquired Senior
Indebtedness in reliance upon the provisions contained in this Article XII.
SECTION 1202. Payment Over of Proceeds Upon Dissolution, Etc.
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all Senior Indebtedness
shall first be paid in full in cash or Cash Equivalents, or such payments duly
provided for to the satisfaction of the holders of Senior Indebtedness, before
any payment or distribution of any kind or character is made on account of any
Obligations on the Securities, or for the acquisition of any of the Securities
for cash or property or otherwise. 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,
property or securities, to which the Holders of the Securities 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 Indebtedness (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interest may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash or Cash Equivalents after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of Senior
Indebtedness.
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(b) To the extent any payment on Senior Indebtedness (whether by or on
behalf of the Company, as proceeds of security or enforcement of any right to
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Senior Indebtedness or part thereof originally
intended to be satisfied shall be deemed to be reinstated and outstanding as if
such payment had not 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,
property or securities, shall be received by any Holder when such payment or
distribution is prohibited by Section 1202(a), 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 Indebtedness (pro rata to such holders on the basis of
the respective amounts of Senior Indebtedness held by such holders) or their
respective Representatives, or to the trustee or trustees under any indenture
pursuant to which any of such Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of Senior
Indebtedness remaining unpaid until all such Senior Indebtedness has been paid
in full in cash or Cash Equivalents, after giving effect to any concurrent
payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(d) The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of
the Company following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article VIII hereof and as long as permitted under the terms of the Senior
Indebtedness shall not be deemed a dissolution, winding-up, liquidation or,
reorganization for the purposes of this Section if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer, assume the
Company's obligations hereunder in accordance with Article VIII hereof.
(e) For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include Permitted Junior Securities of the
Company issued in accordance with the requirements of the definition thereof.
SECTION 1203. No Payment When Senior Indebtedness in Default.
(a) In the event (i) that during the continuation of any default in
the payment of principal of, premium, if any, interest on, unpaid drawings for
letter of credit in respect of, or regularly accruing fees with respect to, any
Senior Indebtedness, whether at the date of a required payment, maturity, upon
mandatory prepayment, redemption, by declaration or otherwise, or (ii) that any
other default with respect to any Designated Senior Indebtedness that permits
the holder or holders of such Designated Senior Indebtedness to accelerate its
maturity shall have occurred and be continuing, then no payment of any kind or
character (including any payment which may be payable by reason of the payment
of any other indebtedness of the Company being subordinated to the payment of
the Securities) except payments of interest then due and owing on the Securities
through (x) the issuance of additional Securities in an aggregate
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principal amount equal to the interest then due and owing, Qualified Preferred
Stock (as defined in the Credit Facility as in effect on the date hereof) with a
liquidation preference equal to the interest then due and owing or Common Stock
and/or (y) options, warrants or other rights to acquire any such Qualified
Preferred Stock and/or Common Stock, shall be made by, or on behalf of, the
Company or any other Person on its or their behalf with respect to or on account
of the Obligations on the Securities or on account of the purchase, redemption
or other acquisition of Securities (A) in the case of any default described in
subclause (i) above, unless and until such default shall have been cured or
waived or shall have ceased to exist and (B) in the case of any default
specified in clause (ii) above, during the period ("Payment Blockage Period")
commencing on the date the Company or the Trustee receives written notice of
such default (a "Senior Default Notice") from the Representative of the
Designated Senior Indebtedness to which such default relates and ending on the
earliest of (X) 180 days after such date, (Y) the date, if any, on which all
defaults of the type described in clause (ii) above with respect to then
outstanding Designated Senior Indebtedness shall have been cured or waived or
shall have ceased to exist and (Z) the date, if any, on which the Trustee shall
have received a notice from the Representative for such Designated Senior
Indebtedness rescinding the Senior Default Notice. Notwithstanding anything
herein to the contrary, in no event will a Payment Blockage Period extend beyond
180 days from the date the payment on the Securities was due and only one such
Payment Blockage Period may be commenced within any 360 consecutive days. No
event of default which existed or was continuing on the date of the commencement
of any Payment Blockage Period with respect to the Designated Senior
Indebtedness shall be, or be made, the basis for the commencement of a second
Payment Blockage Period by the Representative of such Designated Senior
Indebtedness whether or not within a period of 360 consecutive days, unless such
event of 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 commencing after the date of
commencement of such Payment Blockage Period that, in either case, would give
rise to an event of default pursuant to any provisions under which an event of
default previously existed or was continuing shall constitute a new event of
default for this purpose).
(b) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by Section 1203(a), such payment shall be held in trust for the benefit of, and
shall be paid over or delivered to, thc holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
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 then due and owing on the Senior Indebtedness, if any,
received from the holders of Senior Indebtedness (or their Representatives) or,
if such information is not received from such holders or their Representatives,
from the Company and only amounts included in the information provided to the
Trustee shall be paid to the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1202 would be applicable.
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SECTION 1204. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due on or in respect of
Senior Indebtedness, the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior
Indebtedness pursuant to the provisions of this Article (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to other indebtedness of the Company to substantially the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of and premium, if any, and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Securities, be deemed to be a payment or distribution by the Company to
or on account of the Senior Indebtedness.
SECTION 1205. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall (a) impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Securities the principal of and premium, if any, and interest on the
Securities as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of the Securities and creditors of the Company other than the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1206. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of the Company (whether in bankruptcy, insolvency, receivership,
reorganization or similar proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the filing of a claim for the unpaid balance of its Securities
and accrued interest in the form required in those proceedings.
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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 Indebtedness
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 Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness 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 Securities or the rights of any Holder thereof, or to authorize
the Trustee or the holders of Senior Indebtedness or their Representative to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 1207. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act by any such holder or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Trustee or the Holders of
the Securities and without impairing or releasing the subordination provided in
this Article or the obligations hereunder of the Holders of the Securities to
the holders of Senior Indebtedness, 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 Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 1208. 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 Securities; provided, that, any failure or failures to
provide such notices shall have no effect on the provisions of Article XII.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Indebtedness or
from a Representative therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to the provisions of Section 601 and in the absence
of actual knowledge to the contrary, shall be entitled in all respects to assume
that no such facts exist.
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Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or Representative therefor) to
establish that such notice has been given by a holder of Senior Indebtedness (or
Representative therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, 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 1209. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article XII, the Trustee, subject to the provisions of Section 601, and
the Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII.
SECTION 1210. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith and in the absence of gross negligence mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which holders of Senior Indebtedness shall be
entitled by virtue of this Article or otherwise; provided, that, any such
payments to Holders shall be and remain subject to the applicable provisions of
this Article XII.
SECTION 1211. Rights of Trustee as Holder of Senior Indebtedness; Preservation
of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
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SECTION 1212. Reserved.
SECTION 1213. Rights with respect to Conversion and Certain Payments.
Nothing contained in this Article or elsewhere in this Indenture, or in
any of the Securities, shall prevent (x) conversion of Securities into Common
Stock of the Company pursuant to Article XII or (y) payment as described in
Section 1202 in the form of Permitted Junior Securities issued in accordance
with the definition thereof.
SECTION 1214. Payments May Be Paid Prior to Dissolution .
Nothing contained in this Article XII or elsewhere in this Indenture
shall prevent (i) the Company, except under the conditions described in Sections
1202 and 1203, from making payments at any time for the purpose of making
payments on the Securities, 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 Sections 1202 or 1203, the application by
the Trustee of any moneys deposited with it for the purpose of making such
payments 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 an
officer of the Trustee shall have actually received the Senior Default Notice as
provided for in Section 1203 or the written notice provided for in Section 1208
(provided that, notwithstanding the foregoing, such application shall otherwise
be subject to the provisions of Section 1202 and Section 1203(a)). The Company
shall give prompt written notice to the Trustee of any dissolution, winding-up,
liquidation or reorganization of the Company; provided, that, any such failure
to provide such notice shall have no effect on the provisions of this Article
XII.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 1301. Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article
XIII, the Holders shall be entitled, at their option, at any time to convert any
Security (or any portion of the principal amount thereof which is $1,000 or an
integral multiple thereof), into a number of fully paid and non-assessable
shares (calculated as to each conversion to the nearest 1/100th of a share) of
Common Stock of the Company calculated by dividing the Total Conversion Amount
of such Security (or if less than the entire principal amount of such Security
is being converted, the Total Conversion Amount of the portion being converted)
by the Conversion Price in effect at the Close of Business on the Conversion
Date. In case a Security is called for redemption, such conversion right in
respect of the Security called shall expire at the Close of Business on the
Business Day immediately preceding the Redemption Date, unless the Company
defaults in making the payment due upon redemption.
The Conversion Price shall be adjusted in certain instances as provided
in Sections 203 and 1304.
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SECTION 1302. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security shall surrender such Security, duly endorsed or assigned to the Company
or in blank, at any office or agency of the Company maintained pursuant to
Section 1002, accompanied by written notice to the Company in the form provided
in the Security (or such other notice as is acceptable to the Company) at such
office or agency that the Holder elects to convert such Security or, if less
than the entire principal amount thereof is to be converted, the portion thereof
to be converted.
Securities shall be deemed to have been converted immediately prior to
the Close of Business on the day (the "Conversion Date") of surrender of such
Securities for conversion in accordance with the foregoing provisions, and at
such time the rights of the Holders of such Securities as Holders shall cease,
and the Person or Persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such Common Stock as and after such time. As promptly as practicable on or after
the Conversion Date, the Company shall issue and shall deliver at any office or
agency of the Company maintained pursuant to Section 1002 a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1303. The shares of Common Stock issued upon conversion
shall be subject to the restrictions on transfer set forth in the Investors'
Rights Agreement and the certificates for the shares of Common Stock shall bear
the transfer restriction legend required by the Investors' Rights Agreement. If
the shares of Common Stock to be issued upon conversion of a Security are to be
registered in a name other than that of the Holder of such Security, then the
Person in whose name such shares of Common Stock are to be registered must
deliver the opinion of counsel and certificate required by Section 314 hereof.
Neither the Trustee nor any conversion agent or the Registrar shall be required
to register in a name other than that of the Holder of the Security being
converted, the shares of Common Stock issued upon conversion of any such
Security not so accompanied by such opinion and certificate.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
SECTION 1303. Fractions of Shares.
No fractional share of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate Total
Conversion Amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fractional share in an amount equal to the product of such fraction
multiplied by the Fair Market Value of one share of Common Stock on the
Conversion Date.
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SECTION 1304. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustment from time to time
as follows:
(a) If the Company shall, at any time or from time to time after the
Original Issuance Date, issue any shares of Common Stock, options to purchase or
rights to subscribe for Common Stock, securities by their terms convertible into
or exchangeable for Common Stock, or options to purchase or rights to subscribe
for such convertible or exchangeable securities, other than Excluded Stock,
without consideration or for a consideration per share less than either (x) the
Conversion Price or (y) the Fair Market Value of the Common Stock, in effect
immediately prior to the issuance of such Common Stock or securities, then such
Conversion Price, as in effect immediately prior to each such issuance, shall
forthwith be lowered to a price equal to the price obtained by multiplying:
(1) the Conversion Price at which Securities were theretofore
convertible by
(2) a fraction of which (x) the denominator shall be the number
of shares of Common Stock outstanding on a fully-diluted basis immediately
after such issuance and (y) the numerator shall be the sum of (i) the
number of shares of Common Stock outstanding on a fully-diluted basis
immediately prior to the date of such issuance and (ii) the number of
additional shares of Common Stock which the aggregate consideration of the
number of shares of Common Stock so offered would purchase at the greater
of the Conversion Price or the Fair Market Value per share of Common Stock.
For purposes of this Section 1304, "fully diluted basis" shall be
determined in accordance with the treasury method of GAAP.
(b) If the Company shall, at any time or from time to time after the
Original Issuance Date, directly or indirectly, redeem, purchase or otherwise
acquire any shares of Common Stock, options to purchase or rights to subscribe
for Common Stock, securities by their terms convertible into or exchangeable for
Common Stock, or options to purchase or rights to subscribe for such convertible
or exchangeable securities, for a consideration per share greater than the Fair
Market Value (plus, in the case of such options, rights, or securities, the
additional consideration required to be paid to the Company upon exercise,
conversion or exchange) for shares of Common Stock in effect immediately prior
to such event, then the Conversion Price, as in effect immediately prior to each
such event, shall forthwith be lowered to a price equal to the price obtained by
multiplying:
(1) the Conversion Price at which Securities were theretofore
convertible by
(2) a fraction of which (x) the denominator shall be the Fair
Market Value per share of Common Stock immediately prior to such event and
(y) the numerator shall be the result of dividing:
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i) (1) the product of (A) the number of shares of
Common Stock outstanding on a fully-diluted basis
and (B) the Fair Market Value per share of Common
Stock, in each case immediately prior to such
event, minus (2) the aggregate consideration paid
by the Company in such event (plus, in the case of
such options, rights, or convertible or
exchangeable securities, the aggregate additional
consideration to be paid by the Company upon
exercise, conversion or exchange), by
ii) the number of shares of Common Stock outstanding on
a fully-diluted basis immediately after such
redemption.
(c) For the purposes of any adjustment of a Conversion Price pursuant
to Sections 1304(a) or 1304(b) above, the following provisions shall be
applicable:
(1) In the case of the issuance of Common Stock for cash in a
public offering or private placement, the consideration shall be deemed to
be the amount of cash paid therefor before deducting therefrom any
discounts, commissions or placement fees payable by the Company to any
underwriter or placement agent in connection with the issuance and sale
thereof.
(2) In the case of the issuance of Common Stock for a
consideration in whole or in part other than cash, the consideration other
than cash shall be deemed to be the Fair Market Value thereof as determined
in accordance with the Appraisal Procedure.
(3) In the case of the issuance of options to purchase or
rights to subscribe for Common Stock, securities by their terms convertible
into or exchangeable for Common Stock, or options to purchase or rights to
subscribe for such convertible or exchangeable securities, except for
options to acquire Excluded Stock:
i) the aggregate maximum number of shares of Common
Stock deliverable upon exercise of such options to
purchase or rights to subscribe for Common Stock
shall be deemed to have been issued at the time
such options or rights were issued and for a
consideration equal to the consideration
(determined in the manner provided in Sections
1304(c)(1) and 1304(c)(2) above), if any, received
by the Company upon the issuance of such options or
rights plus the minimum purchase price provided in
such options or rights for the Common Stock covered
thereby;
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ii) the aggregate maximum number of shares of Common
Stock deliverable upon conversion of or in exchange
of any such convertible or exchangeable securities
or upon the exercise of options to purchase or
rights to subscribe for such convertible or
exchangeable securities and subsequent conversion
or exchange thereof shall be deemed to have been
issued at the time such securities, options, or
rights were issued and for a consideration equal to
the consideration received by the Company for any
such securities and related options or rights
(excluding any cash received on account of accrued
interest or accrued dividends), plus the additional
consideration, if any, to be received by the
Company upon the conversion or exchange of such
securities or the exercise of any related options
or rights (the consideration in each case to be
determined in the manner provided in Sections
1304(c)(1) and 1304(c)(2) above); and
iii) on any change in the number of shares or exercise
price of Common Stock deliverable upon exercise of
any such options or rights or conversions of or
exchanges for such securities, other than a change
resulting from the antidilution provisions thereof,
the applicable Conversion Price shall forthwith be
readjusted to such Conversion Price as would have
been obtained had the adjustment made upon the
issuance of such options, rights or securities not
converted prior to such change or options or rights
related to such securities not converted prior to
such change been made upon the basis of such
change.
iv) No further adjustment of the Conversion Price
adjusted upon the issuance of any such options,
rights, convertible securities or exchangeable
securities shall be made as a result of the actual
issuance of Common Stock on the exercise of any
such rights or options or any conversion or
exchange of any such securities.
(4) All calculations under Section 1304(a) or (b) will be made
to the nearest one-hundredth of a cent or to the nearest whole share, as
the case may be. No adjustment to the Conversion Price in connection with
an Asset Acquisition will be required unless such adjustment would result
in an increase or decrease of at least one percent (1%) of the Conversion
Price; provided, however, that any adjustments which by reason of this
clause (4) are
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not required to be made will be carried forward and taken into account in
a subsequent adjustment, if any.
(d) If, at any time after the Original Issuance Date, the number of
shares of Common Stock outstanding is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date for the determination of holders of
Common Stock entitled to receive such stock dividend, subdivision or split-up,
the Conversion Price shall be appropriately decreased so that the number of
shares of Common Stock issuable on conversion of Securities shall be increased
in proportion to such increase in outstanding shares.
(e) If, at any time after the Original Issuance Date, the number of
shares of Common Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date for such
combination, the Conversion Price shall be appropriately increased so that the
number of shares of Common Stock issuable on conversion of each Security shall
be decreased in proportion to such decrease in outstanding shares.
(f) In the event of any capital reorganization of the Company, any
reclassification of the stock of the Company (other than a change in par value
or from par value to no par value or from no par value to par value or as a
result of a stock dividend or subdivision, split-up or combination of shares),
or any consolidation or merger of the Company, each Security shall after such
reorganization, reclassification, consolidation, or merger be convertible into
the kind and number of shares of stock or other securities or property of the
Company or of the Company resulting from such consolidation or surviving such
merger to which the holder of the number of shares of Common Stock deliverable
(immediately prior to the time of such reorganization, reclassification,
consolidation or merger) upon conversion of such Security would have been
entitled upon such reorganization, reclassification, consolidation or merger.
The provisions of this clause shall similarly apply to successive
reorganizations, reclassifications, consolidations, or mergers.
(g) In any case in which the provisions of this Section 1304 shall
require that an adjustment shall become effective immediately after a record
date of an event, the Company may defer until the occurrence of such event (1)
issuing to the Holder of any Security converted after such record date and
before the occurrence of such event the shares of capital stock issuable upon
such conversion by reason of the adjustment required by such event and issuing
to such Holder only the shares of capital stock issuable upon such conversion
before giving effect to such adjustments, and (2) paying to such Holder any
amount in cash in lieu of a fractional share of capital stock pursuant to
Section 1303 above; provided, however, that the Company shall deliver to such
Holder an appropriate instrument or due bills evidencing such holder's right to
receive such additional shares and such cash.
(h) If the Company shall propose to take any action of the types
described in clauses d, e, or f of this Section 1304, the Company shall give
notice to each Holder, in the manner set forth in Section 1305, which notice
shall specify the record date, if any, with respect to any such action and the
date on which such action is to take place. Such notice shall also set forth
such facts with respect thereto as shall be reasonably necessary to indicate the
effect of such action (to the extent such effect may be known at the date of
such notice) on the Conversion
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Price and the number, kind or class of shares or other securities or property
which shall be deliverable or purchasable upon the occurrence of such action or
deliverable upon conversion of Securities. In the case of any action which would
require the fixing of a record date, such notice shall be given at least 20 days
prior to the date so fixed, and in case of all other action, such notice shall
be given at least 30 days prior to the taking of such proposed action. Failure
to give such notice, or any defect therein, shall not affect the legality or
validity of any such action.
(i) Without duplication of any other adjustment provided for in this
Section 1304 at any time the Company makes or fixes a record date for the
determination of holders of Common Stock entitled to receive a dividend or other
distribution payable in securities of the Company other than shares of Common
Stock, provision shall be made so that each Holder shall have the option to (i)
receive as part of such dividend or distribution the number of securities of the
Company which such Holder would have received had its Securities been converted
into shares of Common Stock immediately prior to the date of such event or (ii)
receive upon conversion thereof, in addition to the shares of Common Stock
receivable thereupon, the number of securities of the Company which such Holder
would have received had its Securities been converted at the Total Conversion
Amount into shares of Common Stock on the date of such event and had such holder
thereafter, during the period from the date of such event to and including the
date of conversion, retained such securities receivable by it pursuant to this
paragraph during such period, subject to the sum of all other adjustments called
for during such period under this Section 1304 with respect to the rights of
such Holder.
(j) If the Company has issued or issues any securities prior to, on or
after the Original Issuance Date containing provisions protecting the holder or
holders thereof against dilution in any manner more favorable to such holder or
holders thereof than those set forth in this Section 1304, such provisions (or
any more favorable portion thereof) shall be deemed to be incorporated herein as
if fully set forth in this Indenture and, to the extent inconsistent with any
provision of this Indenture, shall be deemed to be substituted therefor.
(k) In any case in which the provisions of this Section 1304 shall
necessitate that the Appraisal Procedure be utilized for purposes of determining
an adjustment to the Conversion Price, the Company may defer until the
completion of the Appraisal Procedure and the determination of the adjustment
(1) issuing to the Holder of any Security converted after the date of the event
that requires the adjustment and before completion of the Appraisal Procedure
and the determination of the adjustment, the shares of capital stock issuable
upon such conversion by reason of the adjustment required by such event and
issuing to such Holder only the shares of capital stock issuable upon such
conversion before giving effect to such adjustment and (2) paying to such Holder
any amount in cash in lieu of a fractional share of capital stock pursuant to
Section 1303 above; provided, however, that the Company shall deliver to such
Holder an appropriate instrument or due bills evidencing such Holder's right to
receive such additional shares and such cash.
(l) The Conversion Price shall be permanently reduced by $1.00 on the
date (the "Conversion Price Reduction Date") 90 days after the Charter Amendment
Deadline if the Charter Amendment has not been Duly Adopted by the Conversion
Price Reduction Date and shall be further permanently reduced by successive
decrements of $1.00 at the end of every three month period thereafter (a "Three
Month Period"), unless the Charter Amendment shall have
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been Duly Adopted during such Three Month Period; provided, that, the maximum
reduction in the Conversion Price pursuant to this sentence shall be limited to
$4.00. In the event the Conversion Price is increased pursuant to Section
1304(e), the $1.00 per share Conversion Price adjustment and $4.00 per share
maximum adjustment referred to in the prior sentence shall each be increased by
the same percentage as the Conversion Price.
SECTION 1305. Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with this Indenture and shall prepare a certificate signed by the
Treasurer or Chief Financial Officer of the Company setting forth the adjusted
conversion price and showing in reasonable detail the facts upon which such
adjustment is based, and such certificate shall forthwith be filed (with a copy
to the Trustee) at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 1002; and
(b) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be prepared, and as
soon as practicable after it is prepared, such notice shall be furnished by the
Company to the Trustee and mailed by the Company at its expense to all Holders
at their last addresses as they shall appear in the Security Register. Where
appropriate such notice may be given in advance and may be included as part of
any notice required to be mailed under Section 1304(h).
SECTION 1306. Notice of Certain Corporate Action.
In case:
(a) the Company shall take an action or an event shall occur, that
would require a Conversion Price adjustment pursuant to this Indenture; or
(b) the Company shall grant to the holders of its Common Stock rights
or warrants to subscribe for or purchase any shares of capital stock of any
class except Excluded Stock; or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of the outstanding shares of Common Stock), or of any
consolidation, merger or share exchange to which the Company is a party and for
which approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary shall commence a tender offer for
all or a portion of the outstanding shares of Common Stock (or shall amend any
such tender offer to change the maximum number of shares being sought or the
amount or type of consideration being offered therefor);
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then the Company shall cause to be filed at each office or agency maintained
pursuant to Section 1002, and shall cause to be mailed to all Holders at their
last addresses as they shall appear in the Security Register, at least 20 days
(or 10 days in any case specified in clause (a), (b) or (e) above) prior to the
applicable record, effective or expiration date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or granting of rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record who will
be entitled to such dividend, distribution, rights or warrants are to be
determined, (y) the date on which such reclassification, consolidation, merger,
share exchange, sale, transfer, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up, or (z) the date on which such tender
offer commenced, the date on which such tender offer is scheduled to expire
unless extended, the consideration offered and the other material terms thereof
(or the material terms of any amendment thereto). Neither the failure to give
any such notice nor any defect therein shall affect the legality or validity of
any action described in clauses (a) through (e) of this Section 1306.
SECTION 1307. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of the authorized but unissued Common Stock or out of the
Common Stock held in treasury, for the purpose of effecting the conversion of
Securities, the full number of shares of Common Stock then issuable upon the
conversion of all outstanding Securities.
Before taking any action that would cause an adjustment reducing the
conversion price below the then par value (if any) of the shares of Common Stock
deliverable upon conversion of the Securities, the Company will take any
corporate action that may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue fully paid and non-assessable
shares of Common Stock at such adjusted conversion price.
SECTION 1308. Taxes on Conversions.
The Company will pay any and all original issuance, transfer, stamp
and other similar taxes that may be payable in respect of the issue or delivery
of shares of Common Stock on conversion of Securities pursuant hereto. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the issue and delivery of shares of Common
Stock in a name other than that of the Holder of the Security or Securities to
be converted, and no such issue or delivery shall be made unless and until the
Person requesting such issue has paid to the Company the amount of any such tax,
or has established to the satisfaction of the Company that such tax has been
paid.
SECTION 1309. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be validly issued, fully
paid and nonassessable.
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The Company further covenants that for so long as the Common Stock
shall be listed on the NASDAQ Stock Market or any other national securities
exchange, the Company will, if permitted by the rules of such exchange, list and
keep listed all Common Stock issuable upon conversion of the Securities.
SECTION 1310. Cancellation of Converted Securities .
All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1311. Provisions as to Consolidation, Merger or Sale of Assets.
Notwithstanding any other provision herein to the contrary, in case of
any consolidation or merger to which the Company is a party (other than a merger
or consolidation in which the Company is the continuing corporation and in which
the Company's Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash or the securities or other property of
another corporation), or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, or in the case of any statutory exchange of securities with another
corporation (other than in connection with a merger or acquisition), the
corporation formed by such consolidation or the corporation whose securities,
cash or other property will immediately after the merger or consolidation be
owned, by virtue of the merger or consolidation by the holders of Common Stock
of the Company immediately prior to the merger, or the corporation that shall
have acquired such assets or securities of the Company, as the case may be,
shall promptly execute and deliver to the Trustee a supplemental indenture
providing that the holder of each Security then outstanding shall have the right
thereafter to convert such Security into the kind and amount of securities, cash
or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance by a holder of the number of shares of Common Stock
into which such Security might have been converted immediately prior to such
consolidation, merger, statutory exchange, sale or conveyance assuming such
holder of Common Stock did not exercise its rights of election, if any, as to
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance (provided that, if
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of election shall
not have been exercised (a "non-electing share"), then for the purposes of this
Section 1311, the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange, sale or
conveyance for each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for appropriate adjustment with respect to
the rights of the holders of the Securities, to the end that the provisions set
forth in this Article XIII shall thereafter correspondingly be made applicable,
as nearly as may reasonably be, in relation to any shares of stock or other
securities or property thereafter deliverable on the conversion of the
Securities. Any such adjustment shall be evidenced by a certificate delivered to
the Trustee and any paying agent.
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The above provisions of this Section 1311 shall similarly apply to
successive consolidations, mergers, statutory exchanges, sales or conveyances.
The Company shall give notice of the execution of such a supplemental
indenture to the holders of Securities in the manner provided in Section 907
within 30 days after the execution thereof; provided, however, that such notice
need not be given if such information has been provided prospectively in the
notice given pursuant to Section 1306. Failure to give such notice, or any
defects therein, shall not affect the legality or validity of any such
supplemental indenture.
SECTION 1312. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any holder of Securities to determine
whether any facts exist that may require any adjustment of the conversion price,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any
conversion agent shall be accountable with respect to the listing referred to in
Section 1309 or the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities, cash or other property that may at any time
be issued or delivered upon the conversion of any Security; and neither the
Trustee nor any conversion agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to issue, transfer or deliver any shares of Common Stock
or stock certificates or other securities or property or to make any cash
payment upon the surrender of any Security for the purpose of conversion or,
subject to the provisions of Section 601, to comply with any of the covenants
contained in this Article XIII.
ARTICLE XIV
RIGHT TO REQUIRE REPURCHASE
SECTION 1401. Right to Require Repurchase.
In the event that there shall occur a Change in Control, then each
Holder shall have the right, at such Holder's option, to require the Company to
purchase, and upon the exercise of such right, the Company shall, subject to the
provisions of this Article XIV and Article XII purchase all (or any portion with
a principal amount equal to $1,000 or an integral multiple thereof) of such
Holder's Securities on the date occurring no earlier than 30 days nor later than
45 days from the date of the mailing of the notice referred to below (which in
any event shall be a date subsequent to any payment dates for the purchase or
other repayment of Senior Indebtedness having similar change of control
provisions) (the "Repurchase Date") at a price (the "Repurchase Price") equal to
100% of the principal amount thereof, together with accrued and unpaid interest
(including, but not limited to, Special Interest) to the Repurchase Date.
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SECTION 1402. Notice; Method of Exercising Repurchase Right.
(a) Prior to the mailing of the notice referred to below, but in any
event within 30 days following any Change of Control, the Company covenants to
(i) repay in full and terminate all commitments under Indebtedness under the
Credit Facility and all other Senior Indebtedness the terms of which require
repayment upon a Change of Control or offer to repay in full and terminate all
commitments under all Indebtedness under the Credit Facility and all other such
Senior Indebtedness and to repay the Indebtedness owed to each lender which has
accepted such offer or (ii) obtain the requisite consents under the Credit
Facility and all other Senior Indebtedness to permit the repurchase of the
Securities as provided in this Article XIV. The Company shall first comply with
the covenant in the first sentence of this paragraph before it shall be required
to repurchase Securities pursuant to the provisions in this Article XIV. The
Company's failure to comply with the covenant described in the first sentence of
this paragraph (and any failure to send the notice referred to in clause (b)
below because such notice is prohibited by the first sentence of this paragraph)
shall constitute an Event of Default described in clause (c) and not in clause
(b) of Section 501.
(b) On or before the 30th day after the occurrence of a Change in
Control, the Company, or at the request of the Company, the Trustee (in the name
and at the expense of the Company), shall give notice of the occurrence of the
Change in Control and of the repurchase right set forth herein arising as a
result thereof by first-class mail, postage prepaid, to each Holder of the
Securities at such Holder's address appearing in the Security Register. The
Company shall also deliver a copy of such notice of a repurchase right to the
Trustee.
Each notice of a repurchase right shall state:
(i) the event constituting the Change in Control and the date
thereof,
(ii) the Repurchase Date,
(iii) the date by which the repurchase right must be exercised,
(iv) the Repurchase Price, and
(v) the instructions a Holder must follow to exercise a
repurchase right.
No failure of the Company to give the foregoing notice shall limit any
Holder's right to exercise a repurchase right. The Trustee shall have no
affirmative obligation to determine if there shall have occurred a Change in
Control.
(c) To exercise a repurchase right, a Holder shall deliver to the
Company (or an agent designated by the Company for such purpose in the notice
referred to in (a) above) and to the Trustee on or before the Close of Business
on the Repurchase Date (i) written notice, substantially in the form set forth
on the reverse of the Securities, of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal amount of the
Security or Securities (or portion of a Security which is $1,000 or an integral
multiple thereof) to be repurchased, and a statement that an election to
exercise the repurchase right is being made thereby, and (ii) the Security or
Securities with respect to which the repurchase right is being
83
<PAGE>
exercised, duly endorsed for transfer to the Company. Such written notice may be
withdrawn at any time on or before the Close of Business on the Repurchase Date.
If the Repurchase Date falls between any Regular Record Date and the next
succeeding Interest Payment Date, Securities to be repurchased must be
accompanied by payment from the Holder of an amount equal to the interest
thereon which the registered Holder thereof is to receive on such Interest
Payment Date.
(d) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall on or promptly following the Repurchase
Date, but subject to the provisions of this Article XIV and Article XII, pay or
cause to be paid in cash to the Holder thereof the Repurchase Price of the
Security or Securities as to which the repurchase right had been exercised.
SECTION 1403. Deposit of Repurchase Price.
On or prior to the Close of Business on the Repurchase Date the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Repurchase
Price of the Securities which are to be repaid on or promptly following the
Repurchase Date.
SECTION 1404. Securities Not Repurchased on Repurchase Date.
Interest on any Security surrendered for repurchase shall cease to
accrue from and after the Repurchase Date unless the Company shall default in
the payment of any such Security at the purchase price, together with interest
accrued thereon to the Repurchase Date.
SECTION 1405. Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of any authorized denomination as requested
by such Holder, in an aggregate principal amount equal to and in exchange for
the repurchased portion of the principal of the Security so surrendered.
ARTICLE XV
VOTING RIGHTS
SECTION 1501. General.
Except as other provided by applicable law, the Holders of the
Securities (i) shall be entitled to vote together with the holders of the Common
Stock as a single class on all matters submitted for a vote of holders of Common
Stock, (ii) voting separately as one class, shall have the exclusive and special
right at all times to elect three (3) of the directors to the Board of
84
<PAGE>
Directors of the Company (or if the Board of Directors of the Company shall
consist of more than 10 persons, no less than 30% of the total number of
directors of the Board of Directors), (iii) shall have such other voting rights
as are specified in the Amended and Restated Certificate of Incorporation of the
Company or as otherwise provided by Delaware law and (iv) shall be entitled to
notice of any stockholders' meeting in accordance with the Amended and Restated
Certificate of Incorporation and By-Laws of the Company. With respect to any
such vote, each Security shall entitle the Holder thereof to cast that number of
whole votes (and fractions thereof) per $1,000 principal amount of Security as
is equal to the number of votes that such Holder would be entitled to cast had
such Holder converted its Securities into shares of Common Stock as of the
record date for determining the stockholders of the Corporation eligible to vote
on any such matter.
SECTION 1502. No Changes to Voting Rights.
So long as any of the principal amount of the Securities is
outstanding, the Company shall not, without the written consent or affirmative
vote of the Requisite Holders, at a meeting called for that purpose of the
Holders, amend, alter or repeal, whether by merger, consolidation, combination,
reclassification or otherwise, the Amended and Restated Certificate of
Incorporation or By-laws of the Company or of any provision thereof (including
the adoption of a new provision thereof) which would result in an alteration or
circumvention of the voting powers of the Securities.
SECTION 1503. Stockholder Approval Required.
The consent or votes required in Section 1502 above shall be in
addition to any approval of stockholders of the Company which may be required by
law or pursuant to any provision of the Company's Amended and Restated
Certificate of Incorporation or By-Laws, which approval shall be obtained by
vote of the stockholders of the Company in the manner provided in Section 1501
above.
SECTION 1504. Effectiveness of this Article XV.
The provisions of this Article XV shall not become effective until the
Charter Amendment is Duly Adopted.
This instrument may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
85
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
BUILDING ONE SERVICES CORPORATION
By:____________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee
By:______________________________________
Name:
Title:
Attest:
_____________________________________
Name:
Title: Corporate Trust Officer
SCHEDULE I
1. Tri-City Electrical Contractors, Inc.
2. Wilson Electric Corporation, Inc.
3. Town & Country Electric, Inc.
4. Riviera Electric Construction Co.
5. Garfield Electric Corporation
6. Indecon, Inc.
7. SKC Electric, Inc.
8. Walker Engineering, Inc.
9. Service Management U.S.A. Inc
<PAGE>
SCHEDULE II
SCHEDULE II
Management Group
Jonathan J. Ledecky
Charlie F. Walker
James F. and Mary E. Lewis, Joint Tenants with Right of Survivorship
Alan J. Green
W. E. Boyette
Dennis R. Robinson
BLEP, Inc. (Jim Linford)
W. Thomas Musser
Jerry R. Mills
Donald G. White
Joseph M. Ivey
William F. McIntosh
Brickford Faucette
Roland G. Stephenson
Andrew R. & Karen S. Spann, Joint Tenants
William P. Love, Jr.
Diane Love
Helmuth Eidel
Paula Eidel
Larry O. Jones
Larry Terrell
Jerald M. Taylor, as Trustee or Successor of the Jerald Taylor Family Trust U/A
dated 9/13/89
Chad MacDonald
Thomas H. Tess
Garfield W. Hartman
Roxanne Chambers
Stephen J. Gubin
Bradford L. Hanson
Mike Sullivan
<PAGE>
EXHIBIT (b)(4)(i)
AMENDMENT NO.1 dated as of April 6, 1999
(this "Amendment") to the INVESTORS'
RIGHTS AGREEMENT) (the "Original
Agreement" and, as amended, this
"Agreement"), dated as of March 22,
1999, between BOSS INVESTMENT LLC, a
Delaware limited liability company
("Investor") and BUILDING ONE SERVICES
CORPORATION, a Delaware corporation (the
"Company"). Capitalized terms used but
not defined herein shall have the
meanings ascribed to them in the
Original Agreement.
In consideration of the premises and the mutual benefits to be derived from
this Amendment and the representations, warranties, covenants, agreements and
conditions hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE I
AMENDMENT
1.1 Dividends.
---------
Section 16(c) of the Original Agreement is hereby amended by deleting
therefrom the following "provided, however, that the Company may declare or pay
any dividend on the Common Stock if such dividend, when combined with any other
dividends declared or paid on the Common Stock in the preceding twelve-month
period, does not exceed 5% of the aggregate Fair Market Value of the Common
Stock at the time of the declaration or payment of such dividend".
ARTICLE II
MISCELLANEOUS PROVISIONS
2.1 Agreement.
---------
Except as modified by this Amendment, the Original Agreement shall remain
in full force and effect, enforceable in accordance with its terms. This
Amendment is not a consent to any waiver or modification of any other terms or
conditions of the Agreement or any of the instruments or documents referred to
in the Agreement and shall not prejudice any right or rights which the parties
thereto may now or hereafter have under or in connection with the Agreement or
any of the instruments or documents referred to therein.
<PAGE>
2.2 Counterparts.
------------
This Amendment may be executed in any number of counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one agreement.
2.3 Governing Law.
-------------
This Amendment shall be governed and construed in accordance with the laws
of the State of Delaware.
* * *
2
<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
date first written above.
BOSS INVESTMENT LLC
By: ____________________
Name:
Title:
BUILDING ONE SERVICES CORPORATION
By:_____________________________
Name:
Title:
<PAGE>
Exhibit (b)(7)
================================================================================
BUILDING ONE SERVICES CORPORATION,
as Issuer,
the GUARANTORS named herein,
as Guarantors,
and
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
INDENTURE
Dated as of April 30, 1999
up to $400,000,000
__________________
10 1/2% Senior Subordinated Notes due 2009
================================================================================
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
----------- ----------
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; 13.02
(c).......................................... N.A.
311(a).......................................... 7.11
(b).......................................... 7.11
(c).......................................... N.A.
312(a).............. ......................... 2.05
(b).......................................... 13.03
(c).......................................... 13.03
313(a).......................................... 7.06
(b)(1)....................................... 7.06
(b)(2)....................................... 7.06
(c).......................................... 7.06; 13.02
(d).......................................... 7.06
314(a).......................................... 4.08; 4.10; 13.02
(b).......................................... N.A.
(c)(1)....................................... 7.02; 13.04; 13.05
(c)(2)....................................... 7.02; 13.04; 13.05
(c)(3)....................................... N.A.
(d).......................................... N.A.
(e).......................................... 13.05
(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).................................... 6.05
(a)(1)(B).................................... 6.04
(a)(2)....................................... 9.05
(b).......................................... 6.07
(c).......................................... 9.05
- ------------------------
N.A. means Not Applicable
Note: This Cross- Reference Table shall not, for any purpose
be deemed to be a part of the Indeture
<PAGE>
317(a)(1).............................. 6.08
(a)(2).............................. 6.09
(b)................................. 2.04
318(a)................................. 13.01
(c)................................. 13.01
- ---------------------
N.A. means Applicable
Note: This Cross- Reference Table shall not, for any purpose
be deemed to be a part of the Indeture
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions............................................... 1
SECTION 1.02. Incorporation by Reference of TIA......................... 37
SECTION 1.03. Rules of Construction..................................... 38
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating........................................... 39
SECTION 2.02. Execution and Authentication.............................. 40
SECTION 2.03. Registrar and Paying Agent................................ 41
SECTION 2.04. Paying Agent To Hold Assets in Trust...................... 42
SECTION 2.05. Holder Lists.............................................. 42
SECTION 2.06. Transfer and Exchange..................................... 43
SECTION 2.07. Replacement Securities.................................... 44
SECTION 2.08. Outstanding Securities.................................... 44
SECTION 2.09. Treasury Securities....................................... 45
SECTION 2.10. Temporary Securities...................................... 45
SECTION 2.11. Cancellation.............................................. 45
SECTION 2.12. Defaulted Interest........................................ 46
SECTION 2.13. CUSIP Number.............................................. 46
SECTION 2.14. Deposit of Moneys......................................... 46
SECTION 2.15. Book-Entry Provisions for Global Securities............... 47
SECTION 2.16. Special Transfer Provisions............................... 49
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee........................................ 52
SECTION 3.02. Selection of Securities To Be Redeemed.................... 53
SECTION 3.03. Notice of Redemption...................................... 53
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<PAGE>
Page
SECTION 3.04. Effect of Notice of Redemption............................ 54
SECTION 3.05. Deposit of Redemption Price............................... 55
SECTION 3.06. Securities Redeemed in Part............................... 55
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities..................................... 55
SECTION 4.02. Maintenance of Office or Agency........................... 56
SECTION 4.03. Limitation on Restricted Payments......................... 56
SECTION 4.04. Limitation on Incurrence of
Additional Indebtedness................................... 59
SECTION 4.05. Corporate Existence....................................... 60
SECTION 4.06. Payment of Taxes and Other Claims......................... 60
SECTION 4.07. Maintenance of Properties and Insurance................... 60
SECTION 4.08. Compliance Certificate; Notice of Default................. 61
SECTION 4.09. Compliance with Laws...................................... 62
SECTION 4.10. Reports to Holders........................................ 63
SECTION 4.11. Waiver of Stay, Extension or Usury Laws................... 64
SECTION 4.12. Limitations on Transactions with Affiliates............... 64
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries......................... 66
SECTION 4.14. Limitation on Liens....................................... 68
SECTION 4.15. Change of Control......................................... 69
SECTION 4.16. Limitation on Asset Sales................................. 71
SECTION 4.17. Prohibition on Incurrence of Senior Subordinated Debt..... 76
SECTION 4.18. Additional Subsidiary Guarantees.......................... 76
SECTION 4.19. Conduct of Business....................................... 76
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.................. 77
SECTION 5.02. Successor Corporation Substituted......................... 79
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<PAGE>
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default......................................... 79
SECTION 6.02. Acceleration.............................................. 82
SECTION 6.03. Other Remedies............................................ 83
SECTION 6.04. Waiver of Past Defaults................................... 83
SECTION 6.05. Control by Majority....................................... 83
SECTION 6.06. Limitation on Suits....................................... 84
SECTION 6.07. Rights of Holders To Receive Payment...................... 85
SECTION 6.08. Collection Suit by Trustee................................ 85
SECTION 6.09. Trustee May File Proofs of Claim.......................... 85
SECTION 6.10. Priorities................................................ 86
SECTION 6.11. Undertaking for Costs..................................... 87
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee......................................... 87
SECTION 7.02. Rights of Trustee......................................... 88
SECTION 7.03. Individual Rights of Trustee.............................. 90
SECTION 7.04. Trustee's Disclaimer...................................... 90
SECTION 7.05. Notice of Default......................................... 91
SECTION 7.06. Reports by Trustee to Holders............................. 91
SECTION 7.07. Compensation and Indemnity................................ 92
SECTION 7.08. Replacement of Trustee.................................... 93
SECTION 7.09. Successor Trustee by Merger, Etc.......................... 94
SECTION 7.10. Eligibility; Disqualification............................. 95
SECTION 7.11. Preferential Collection of Claims
Against Company........................................... 95
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.................. 95
SECTION 8.02. Legal Defeasance and Covenant Defeasance
SECTION 8.03. Conditions to Legal Defeasance............................ 97
or Covenant Defeasance.................................... 99
SECTION 8.04. Application of Trust Money................................ 102
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<PAGE>
Page
SECTION 8.05. Repayment to the Company................................... 102
SECTION 8.06. Reinstatement.............................................. 103
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders................................. 103
SECTION 9.02. With Consent of Holders.................................... 104
SECTION 9.03. Effect on Senior Debt...................................... 106
SECTION 9.04. Compliance with TIA........................................ 106
SECTION 9.05. Revocation and Effect of Consents.......................... 106
SECTION 9.06. Notation on or Exchange of Securities...................... 107
SECTION 9.07. Trustee To Sign Amendments, Etc............................ 108
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities Subordinated to
Senior Debt................................................ 108
SECTION 10.02. Suspension of Payment When Senior
Debt Is in Default......................................... 109
SECTION 10.03. Securities Subordinated to Prior
Payment of All Senior Debt on
Dissolution, Liquidation or
Reorganization of Company.................................. 111
SECTION 10.04. Payments May Be Paid Prior
to Dissolution............................................. 113
SECTION 10.05. Holders To Be Subrogated to Rights
of Holders of Senior Debt.................................. 113
SECTION 10.06. Obligations of the Company
Unconditional.............................................. 114
SECTION 10.07. Notice to Trustee.......................................... 114
SECTION 10.08. Reliance on Judicial Order or
Certificate of Liquidating Agent........................... 115
SECTION 10.09. Trustee's Relation to Senior Debt.......................... 116
SECTION 10.10. Subordination Rights Not Impaired
by Acts or Omissions of the
Company
or Holders of Senior Debt.................................. 116
SECTION 10.11. Securityholders Authorize Trustee To
Effectuate Subordination of Securities..................... 117
-iv-
<PAGE>
SECTION 10.12. This Article Ten Not To
Prevent Events of Default.................................. 118
SECTION 10.13. Trustee's Compensation
Not Prejudiced............................................. 118
ARTICLE ELEVEN
GUARANTEE OF SECURITIES
SECTION 11.01. Unconditional Guarantee................................... 118
SECTION 11.02. Limitations on Guarantees.................................. 120
SECTION 11.03. Execution and Delivery of Guarantee........................ 121
SECTION 11.04. Release of a Guarantor..................................... 121
SECTION 11.05. Waiver of Subrogation...................................... 122
SECTION 11.06. Immediate Payment.......................................... 123
SECTION 11.07. No Set-Off................................................. 123
SECTION 11.08. Obligations Absolute....................................... 124
SECTION 11.09. Obligations Continuing..................................... 124
SECTION 11.10. Obligations Not Reduced.................................... 124
SECTION 11.11. Obligations Reinstated..................................... 124
SECTION 11.12. Obligations Not Affected................................... 125
SECTION 11.13. Waiver..................................................... 127
SECTION 11.14. No Obligation To Take Action Against
the Company................................................ 127
SECTION 11.15. Dealing with the Company and Others........................ 127
SECTION 11.16. Default and Enforcement.................................... 128
SECTION 11.17. Amendment, Etc............................................. 128
SECTION 11.18. Acknowledgment............................................. 128
SECTION 11.19. Costs and Expenses......................................... 129
SECTION 11.20. No Merger or Waiver; Cumulative Remedies................... 129
SECTION 11.21. Survival of Obligations.................................... 129
SECTION 11.22. Guarantee in Addition to Other Obligations................. 129
SECTION 11.23. Severability............................................... 130
SECTION 11.24. Successors and Assigns..................................... 130
ARTICLE TWELVE
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Debt................................... 130
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<PAGE>
Page
----
SECTION 12.02. Suspension of Guarantee Obligations
When Guarantor Senior Debt Is in Default................... 131
SECTION 12.03. Guarantee Obligations Subordinated
to Prior Payment of All Guarantor
Senior Debt on Dissolution, Liquidation
or Reorganization of Such Guarantor........................ 132
SECTION 12.04. Payments May Be Paid Prior
to Dissolution............................................. 134
SECTION 12.05. Holders of Guarantee Obligations
To Be Subrogated to Rights of
Holders of Guarantor Senior Debt........................... 134
SECTION 12.06. Obligations of the Guarantors Unconditional................ 135
SECTION 12.07. Notice to Trustee.......................................... 135
SECTION 12.08. Reliance on Judicial Order or
Certificate of Liquidating Agent........................... 136
SECTION 12.09. Trustee's Relation to Guarantor Senior Debt................ 137
SECTION 12.10. Subordination Rights Not Impaired
by Acts or Omissions of the Guarantorsa
or Holders of Guarantor Senior Debt........................ 137
SECTION 12.11. Holders Authorize Trustee To Effectuate
Subordination of Guarantee Obligations..................... 138
SECTION 12.12. This Article Twelve Not To
Prevent Events of Default.................................. 139
SECTION 12.13. Trustee's Compensation
Not Prejudiced............................................. 139
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls............................................... 139
SECTION 13.02. Notices.................................................... 140
SECTION 13.03. Communications by Holders
with Other Holders......................................... 141
SECTION 13.04. Certificate and Opinion as
to Conditions Precedent.................................... 141
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<PAGE>
Page
----
SECTION 13.05. Statements Required in
Certificate or Opinion.................................... 142
SECTION 13.06. Rules by Trustee, Paying Agent, Registrar................. 142
SECTION 13.07. Legal Holidays.................................
SECTION 13.08. Governing Law............................................. 143
SECTION 13.09. No Adverse Interpretation
of Other Agreements....................................... 143
SECTION 13.10. No Recourse Against Others................................ 143
SECTION 13.11. Successors................................................ 143
SECTION 13.12. Duplicate Originals....................................... 144
SECTION 13.13. Severability.............................................. 144
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 Guarantee
Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture
-vii-
<PAGE>
INDENTURE dated as of April 30, 1999 among BUILDING ONE SERVICES
CORPORATION, a Delaware corporation (the "Company"), as Issuer, each of the
-------
Guarantors named herein, as Guarantors, and IBJ WHITEHALL BANK & TRUST COMPANY,
a New York banking corporation, as Trustee (the "Trustee").
-------
The Company has duly authorized the creation of an issue of 10 1/2%
Senior Subordinated Notes due 2009 and, to provide therefor, the Company has
duly authorized the execution and delivery of this Indenture. All things
necessary to make the Securities, 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 Securities:
ARTICLE ONE
DEFINITIONS ANDf INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
-----------
"Acquired Indebtedness" means Indebtedness of a Person or any of its
---------------------
Restricted Subsidiaries existing at the time such Person becomes a Restricted
Subsidiary of the Company or at the time it merges or consolidates with or into
the Company or any of its Subsidiaries or is assumed in connection with the
acquisition of assets from such Person and in each case whether or not incurred
by such Person in connection with, or in anticipation or contemplation of, such
Person becoming a Restricted Subsidiary of the Company or such acquisition,
merger or consolidation.
"Affiliate" means, with respect to any specified Person, any other
---------
Person who directly or indirectly through one or more intermediaries controls,
or is controlled by, or is under common control with, such specified Person.
The term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
<PAGE>
a Person, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative of the foregoing.
"Affiliate Transaction" has the meaning set forth in Section 4.12.
---------------------
"Agent" means any Registrar, Paying Agent or co-Registrar.
-----
"Asset Acquisition" means (a) an Investment by the Company or any
-----------------
Restricted Subsidiary of the Company in any other Person pursuant to which such
Person shall become a Restricted Subsidiary of the Company or any Restricted
Subsidiary of the Company, or shall be merged with or into the Company or any
Restricted Subsidiary of the Company, or (b) the acquisition by the Company or
any Restricted Subsidiary of the Company of the assets of any Person (other than
a Restricted Subsidiary of the Company) which constitute all or substantially
all of the assets of such Person or comprises any operating unit, division or
line of business of such Person or any other properties or assets of such Person
other than in the ordinary course of business.
"Asset Sale" means any direct or indirect sale, issuance, conveyance,
----------
transfer, lease (other than operating leases entered into in the ordinary course
of business), assignment or other transfer for value by the Company or any of
its Restricted Subsidiaries (including any Sale and Leaseback Transaction) to
any Person other than the Company or a Wholly Owned Restricted Subsidiary of the
Company of (a) any Capital Stock of any Restricted Subsidiary of the Company; or
(b) any other property or assets of the Company or any Restricted Subsidiary of
the Company other than in the ordinary course of business; provided, however,
-------- -------
that Asset Sales shall not include: (i) a transaction or series of related
transactions for which the Company or its Restricted Subsidiaries receive
aggregate consideration of less than $1.5 million; (ii) the sale, lease,
conveyance, disposition or other transfer of all or substantially all of the
assets of the Company as permitted under Section 5.01; (iii) any Restricted
Payment permitted by Section 4.03 or that constitutes a Permitted Investment;
(iv) sales of
-2-
<PAGE>
damaged, worn-out or obsolete equipment or assets that, in the Company's
reasonable judgment, are no longer either used or useful in the business of the
Company or its Restricted Subsidiaries; and (v) the sale of accounts receivable
pursuant to a Qualified Receivables Transaction.
"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, as to any Person, the board of directors
------------------
of such Person or any duly authorized committee thereof.
"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 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 are required or
authorized by law or other governmental action to be closed.
"Capital Stock" means (i) with respect to any Person that is a
-------------
corporation, any and all shares, interests, participations or other equivalents
(however designated and whether or not voting) of corporate stock, including
each class of Common Stock and Preferred Stock of such Person (but shall not
include, prior to any conversion thereof, the Convertible Subordinated Notes),
and (ii) with respect to any Person that is not a corporation, any and all
partnership, membership or other equity interests of such Person.
"Capitalized Lease Obligation" means, as to any Person, the
----------------------------
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
-3-
<PAGE>
amount of such obligations at such date, determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued by,
----------------
or unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition thereof; (ii)
marketable direct 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
thereof and, at the time of acquisition, having one of the two highest ratings
obtainable from either Standard & Poor's Ratings Group ("S&P") or Moody's
---
Investors Service, Inc. ("Moody's"); (iii) commercial paper maturing no more
-------
than one year from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's; (iv)
certificates of deposit or bankers' acceptances maturing within one year from
the date of acquisition thereof issued by any bank organized under the laws of
the United States of America or any state thereof or the District of Columbia or
any U.S. branch of a foreign bank having at the date of acquisition thereof
combined capital and surplus of not less than $250.0 million; (v) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (i) above entered into with any bank meeting the
qualifications specified in clause (iv) above; and (vi) investments in money
market funds which invest substantially all their assets in securities of the
types described in clauses (i) through (v) above.
"Change of Control" means the occurrence of one or more of the
-----------------
following events: (i) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the assets of the Company to any Person or group of related Persons for purposes
of Section 13(d) of the Exchange Act (a "Group"), together with any Affiliates
-----
thereof (whether or not otherwise in compliance with the provisions of this
Indenture), other than to the Permitted Holders; (ii) the approval by the
holders of Capital Stock of the Company of any plan or proposal for the
liquida-
-4-
<PAGE>
tion or dissolution of the Company (whether or not otherwise in compliance with
the provisions of this Indenture); (iii) any Person or Group (other than the
Permitted Holders) shall become the owner, directly or indirectly, beneficially
or of record, of shares representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of the
Company; or (iv) the replacement of a majority of the Board of Directors of the
Company over a two-year period from the directors who constituted the Board of
Directors of the Company at the beginning of such period, and such replacement
shall not have been approved by the Permitted Holders or a vote of at least a
majority of the Board of Directors of the Company then still in office who
either were members of such Board of Directors at the beginning of such period
or whose election as a member of such Board of Directors was previously so
approved.
"Change of Control Date" has the meaning set forth in Section 4.15.
----------------------
"Change of Control Offer" has the meaning set forth in Section 4.15.
-----------------------
"Change of Control Payment Date" has the meaning set forth in Section
------------------------------
4.15.
"Commission" means the Securities and Exchange Commission.
----------
"Common Stock" of any Person means any and all shares, interests or
------------
other participations in, and other equivalents (however designated and whether
voting or non-voting) of such Person's common stock, whether outstanding on the
Issue Date or issued after the Issue Date, and includes, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in this Indenture until a
-------
successor replaces it pursuant to this Indenture and thereafter shall mean such
successor corporation.
"Consolidated EBITDA" means, with respect to any Person, for any
-------------------
period, the sum (without duplication) of (i) Consolidated Net Income and (ii) to
the extent Consolidated Net
-5-
<PAGE>
Income has been reduced thereby, (A) all income taxes of such Person and its
Restricted Subsidiaries paid or accrued in accordance with GAAP for such period
(other than income taxes attributable to extraordinary, unusual or nonrecurring
gains), (B) Consolidated Interest Expense and (C) Consolidated Non-cash Charges
less any non-cash items increasing Consolidated Net Income for such period, all
- ----
as determined on a consolidated basis for such Person and its Restricted
Subsidiaries in accordance with GAAP.
"Consolidated Fixed Charge Coverage Ratio" means, with respect to any
----------------------------------------
Person, the ratio of Consolidated EBITDA of such Person during the four full
fiscal quarters (the "Four Quarter Period") ending prior to the date of the
-------------------
transaction giving rise to the need to calculate the Consolidated Fixed Charge
Coverage Ratio for which financial statements are available (the "Transaction
-----------
Date") to Consolidated Fixed Charges of such Person for the Four Quarter Period.
- ----
In addition to and without limitation of the foregoing, for purposes of this
definition, "Consolidated EBITDA" and "Consolidated Fixed Charges" shall be
calculated after giving effect on a pro forma basis for the period of such
---------
calculation to (i) the incurrence or repayment of any Indebtedness of such
Person or any of its Restricted Subsidiaries (and the application of the
proceeds thereof) giving rise to the need to make such calculation and any
incurrence or repayment of other Indebtedness (and the application of the
proceeds thereof), other than the incurrence or repayment of Indebtedness in the
ordinary course of business for working capital purposes pursuant to working
capital facilities, occurring during the Four Quarter Period or at any time
subsequent to the last day of the Four Quarter Period and on or prior to the
Transaction Date, as if such incurrence or repayment, as the case may be (and
the application of the proceeds thereof), occurred on the first day of the Four
Quarter Period and (ii) any Asset Sales or other dispositions or Asset
Acquisitions (including, without limitation, any Asset Acquisition giving rise
to the need to make such calculation as a result of such Person or one of its
Restricted Subsidiaries (including any Person who becomes a Restricted
Subsidiary as a result of the Asset Acquisition) incurring, assuming or
otherwise being liable for Acquired Indebtedness and also including any
Consolidated EBITDA (including any pro forma expense and cost
--- -----
-6-
<PAGE>
reductions, adjustments and other operating improvements or synergies both
achieved by such Person during such period and to be achieved by such Person and
with respect to the acquired assets, all as determined in good faith by a
responsible financial or accounting officer of the Company and as reported on or
otherwise confirmed, consistent with applicable standards of the American
Institute of Certified Public Accountants, to the Company by an independent
public accounting firm) attributable to the assets which are the subject of the
Asset Acquisition or Asset Sale or other disposition during the Four Quarter
Period) occurring during the Four Quarter Period or at any time subsequent to
the last day of the Four Quarter Period and on or prior to the Transaction Date,
as if such Asset Sale or other disposition or Asset Acquisition (including the
incurrence, assumption or liability for any such Acquired Indebtedness) occurred
on the first day of the Four Quarter Period. If such Person or any of its
Restricted Subsidiaries directly or indirectly guarantees Indebtedness of a
third Person, the preceding sentence shall give effect to the incurrence of such
guaranteed Indebtedness as if such Person or any Restricted Subsidiary of such
Person had directly incurred or otherwise assumed such guaranteed Indebtedness.
Furthermore, in calculating "Consolidated Fixed Charges" for purposes of
determining the denominator (but not the numerator) of this "Consolidated Fixed
Charge Coverage Ratio," (1) interest on outstanding Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to have accrued at a fixed rate per annum
equal to the rate of interest on such Indebtedness in effect on the Transaction
Date; and (2) notwithstanding clause (1) above, interest on Indebtedness
determined on a fluctuating basis, to the extent such interest is covered by
agreements relating to Interest Swap Obligations, shall be deemed to accrue at
the rate per annum resulting after giving effect to the operation of such
agreements.
"Consolidated Fixed Charges" means, with respect to any Person for any
--------------------------
period, the sum, without duplication, of (i) Consolidated Interest Expense
(excluding (x) amortization or write-off of deferred financing costs, (y)
interest paid on Convertible Subordinated Notes in the form of Convertible
Subordinated Notes or Qualified Capital Stock and (z) one-time ac-
-7-
<PAGE>
celerated interest payments due upon the conversion of the Convertible
Subordinated Notes prior to May 1, 2004) plus (ii) the product of (x) the amount
of all dividend payments on any series of Preferred Stock of such Person (other
than dividends paid in Qualified Capital Stock) paid, accrued or scheduled to be
paid or accrued during such period times (y) a fraction, the numerator of which
is one and the denominator of which is one minus the then current effective
consolidated federal, state and local tax rate of such Person, expressed as a
decimal.
"Consolidated Interest Expense" means, with respect to any Person for
-----------------------------
any period, the sum of, without duplication: (i) the aggregate of the interest
expense of such Person and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP, including, without
limitation, (a) any amortization of debt discount and amortization or write-off
of deferred financing costs (including the amortization of costs relating to
interest rate caps or other similar agreements), (b) the net costs under
Interest Swap Obligations, (c) all capitalized interest and (d) the interest
portion of any deferred payment obligation; and (ii) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Restricted Subsidiaries during such period as
determined on a consolidated basis in accordance with GAAP, minus interest
income for such period.
"Consolidated Net Income" means, with respect to any Person, for any
-----------------------
period, the aggregate net income (or loss) of such Person and its Restricted
Subsidiaries for such period on a consolidated basis, determined in accordance
with GAAP; provided that there shall be excluded therefrom (a) after-tax gains
--------
or losses from Asset Sales (without regard to the $1.5 million limitation set
forth in the definition thereof) or abandonments or reserves relating thereto,
(b) items classified as extraordinary, nonrecurring or unusual gains or losses
on an after-tax basis (including, but not limited to, fees and expenses related
to the Transactions and non-cash charges related to the acceleration of the
vesting of options), (c) the net income of any Person acquired in a "pooling of
interests" transaction accrued prior to the date it becomes a Restricted
Subsidiary of the referent Person or is merged or consolidated
-8-
<PAGE>
with the referent Person or any Restricted Subsidiary of the referent Person,
(d) the net income (but not loss) of any Restricted Subsidiary of the referent
Person to the extent that the declaration of dividends and the making of loans
or advances or similar distributions, loans or advances by that Restricted
Subsidiary of that income is restricted by a contract, operation of law or
otherwise, (e) the net income of any Person, other than a Restricted Subsidiary
of the referent Person, except to the extent of cash dividends or distributions
paid to the referent Person or to a Wholly Owned Restricted Subsidiary of the
referent Person by such Person, (f) in the case of a successor to the referent
Person by consolidation or merger or as a transferee of the referent Person's
assets, any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets and (g) the effect of changes in accounting
principles after the Issue Date.
For purposes of Section 4.03 only, "Consolidated Net Income" shall be
calculated without taking into account cash interest payments (and the related
tax effects) on the Convertible Subordinated Notes.
"Consolidated Non-cash Charges" means, with respect to any Person, for
-----------------------------
any period, the aggregate depreciation, amortization and other non-cash expenses
of such Person and its Restricted Subsidiaries reducing Consolidated Net Income
of such Person and its Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with GAAP.
"Convertible Subordinated Notes" means the $100 million aggregate
------------------------------
principal amount of the Company's 7 1/2% Convertible Junior Subordinated Notes
due 2012 and any additional Convertible Subordinated Notes issued in lieu of
cash interest thereon in accordance with the terms of the Convertible
Subordinated Notes as in effect on the Issue Date.
"Covenant Defeasance" has the meaning set forth in Section 8.02.
-------------------
"Credit Agreement" means the Credit Agreement dated as of the Issue
----------------
Date, between the Company, the lenders party thereto in their capacities as
lenders thereunder, Goldman,
-9-
<PAGE>
Sachs Credit Partners L.P., as documentation agent, Salomon Smith Barney Inc.,
as syndication agent, and Bankers Trust Company, as administrative agent,
together with the related documents thereto (including, without limitation, any
guarantee 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 any 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.
"Credit Facilities" means one or more debt facilities (including,
-----------------
without limitation, the Credit Agreement) or commercial paper facilities with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing (including through the sale of receivables to such
lenders or to special purpose entities formed to borrow from such lenders
against such receivables) and/or letters of credit or banker's acceptances.
"Currency Agreement" means any foreign exchange contract, currency
------------------
swap agreement or other similar agreement or arrangement designed to protect the
Company or any Restricted Subsidiary of the Company against fluctuations in
currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
---------
sequestrator or similar official under any Bankruptcy Law.
"Default" means an event or condition the occurrence of which is, or
-------
with the lapse of time or the giving of notice or both would be, an Event of
Default.
"Depository" shall mean The Depository Trust Company, New York, New
----------
York, or a successor thereto registered under the Exchange Act or other
applicable statute or regulation.
-10-
<PAGE>
"Designated Senior Debt" means (i) Indebtedness under or in respect of
----------------------
the Credit Agreement and (ii) any other Indebtedness constituting Senior Debt
which, at the time of determination, has an aggregate principal amount of at
least $25.0 million and is specifically designated in the instrument evidencing
such Senior Debt as "Designated Senior Debt" by the Company.
"Disqualified Capital Stock" means that portion of any Capital Stock
--------------------------
which, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable at the option of the holder
thereof), or upon the happening of any event (other than an event which would
constitute a Change of Control or Asset Sale), matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof (except, in each case, upon the
occurrence of a Change of Control or Asset Sale), on or prior to the Maturity
Date of the Securities.
"Domestic Restricted Subsidiary" means a Restricted Subsidiary
------------------------------
incorporated or otherwise organized or existing under the laws of the United
States, any state thereof or any territory or possession of the United States.
"Equity Offering" means a public or private offering of Qualified
---------------
Capital Stock (other than public offerings with respect to the Company's Common
Stock on Form S-8 or any replacement form for such Form S-8) of the Company for
aggregate net cash proceeds to the Company of at least $20 million.
"Event of Default" has the meaning set forth in Section 6.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
or any successor statute or statutes thereto.
"Exchange Securities" means securities issued in exchange for the
-------------------
Securities pursuant to the terms of the Registration Rights Agreement, or, in
the case of Securities issued after the Issue Date, any other registration
rights agreement.
-11-
<PAGE>
"fair market value" means, with respect to any asset or property, the
-----------------
price which could be negotiated in an arm's-length, free market transaction
between a willing seller and a willing and able buyer, neither of whom is under
undue pressure or compulsion to complete the transaction.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect as of the Issue Date.
"Global Security" shall mean one or more IAI Global Securities,
---------------
Regulation S Global Securities and 144A Global Securities.
"Guarantee Obligations" has the meaning set forth in Section 12.01.
---------------------
"Guarantees" means the guarantees of the Securities by the Guarantors.
----------
"Guarantor" means (i) each of the Company's Restricted Subsidiaries as
---------
of the Issue Date and (ii) each of the Company's Restricted Subsidiaries that in
the future executes a supplemental indenture in which such Restricted Subsidiary
agrees to be bound by the terms of this Indenture as a Guarantor; provided that
--------
any Person constituting a Guarantor as described above shall cease to constitute
a Guarantor when its respective Guarantee is released in accordance with the
terms of this Indenture.
"Guarantor Senior Debt" means with respect to any Guarantor, the
---------------------
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on any Indebtedness of such Guarantor,
whether outstanding on the Issue Date or thereafter
-12-
<PAGE>
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 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 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, (x) all monetary obligations of every nature of such
Guarantor under, or with respect to, the Credit Agreement, including, without
limitation, obligations to pay principal and interest, reimbursement obligations
under letters of credit, fees, expenses and indemnities (including guarantees
thereof), (y) all Interest Swap Obligations (and guarantees thereof) and (z) all
obligations (and guarantees thereof) under Currency Agreements, in each case
whether outstanding on the Issue Date or thereafter incurred. Notwithstanding
the foregoing, "Guarantor Senior Debt" shall not include (i) any Indebtedness of
such Guarantor to a Subsidiary of such Guarantor, (ii) Indebtedness to, or
guaranteed on behalf of, any shareholder, director, officer or employee of such
Guarantor or any Subsidiary of such Guarantor (including, without limitation,
amounts owed for compensation) other than a shareholder who is also a lender (or
an Affiliate of a lender) under the Credit Facilities (including the Credit
Agreement), (iii) Indebtedness to trade creditors and other amounts incurred in
connection with obtaining goods, materials or services, (iv) Indebtedness
represented by Disqualified Capital Stock, (v) any liability for federal, state,
local or other taxes owed or owing by such Guarantor, (vi) that portion of any
Indebtedness incurred in violation of the provisions of Section 4.04 (but, as to
any such obligation, no such violation shall be deemed to exist for purposes of
this clause (vi) 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 this
-13-
<PAGE>
Indenture), (vii) 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 (viii) any Indebtedness which is, by its express
terms, subordinated in right of payment to any other Indebtedness of such
Guarantor.
"incur" has the meaning set forth in Section 4.04.
-----
"Indebtedness" means with respect to any Person, without duplication,
------------
(i) all Obligations of such Person for borrowed money (including, without
limitation, Senior Debt), (ii) all Obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all Capitalized
Lease Obligations of such Person, (iv) all Obligations of such Person issued or
assumed as the deferred purchase price of property, all conditional sale
obligations and all Obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are not overdue by 90 days or more or are being
contested in good faith by appropriate proceedings promptly instituted and
diligently conducted), (v) all Obligations for the reimbursement of any obligor
on any letter of credit, banker's acceptance or similar credit transaction, (vi)
guarantees and other contingent obligations in respect of Indebtedness referred
to in clauses (i) through (v) above and clause (viii) below, (vii) all
Obligations of any other Person of the type referred to in clauses (i) through
(vi) which are secured by any lien on any property or asset of such Person, the
amount of such Obligation being deemed to be the lesser of the fair market value
of such property or asset or the amount of the Obligation so secured, (viii) all
Obligations under currency agreements and interest swap agreements of such
Person and (ix) all Disqualified Capital Stock issued by such Person with the
amount of Indebtedness represented by such Disqualified Capital Stock being
equal to the greater of its voluntary or involuntary liquidation preference and
its maximum fixed repurchase price, but excluding accrued dividends, if any.
Notwithstanding anything to the contrary in this definition, Indebtedness shall
not include any contingent purchase price obligations or other earnout
obligations of the Company and its Restricted Subsidiaries in connection with
acquisitions, which
-14-
<PAGE>
obligations are not required to be included as indebtedness on the face of the
Company's consolidated balance sheet in accordance with GAAP. For purposes
hereof, the "maximum fixed repurchase price" of any Disqualified Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Disqualified Capital Stock as if such Disqualified
Capital Stock were purchased on any date on which Indebtedness shall be required
to be determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified Capital Stock, such fair
market value shall be determined reasonably and in good faith by the Board of
Directors of the issuer of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from time
---------
to time in accordance with the terms hereof.
"Independent Financial Advisor" means a firm (i) which does not, and
-----------------------------
whose directors, officers and employees or Affiliates do not, have a direct or
indirect financial interest in the Company and (ii) which, in the judgment of
the Board of Directors of the Company, is otherwise independent and qualified to
perform the task for which it is to be engaged.
"Initial Purchasers" means BT Alex. Brown Incorporated, Bear, Stearns
------------------
& Co. Inc., Goldman, Sachs & Co., Salomon Smith Barney Inc., Friedman Billings
Ramsey & Co. Inc., Jefferies & Company, Inc. and Fleet Securities, Inc.
"Institutional Accredited Investor" or "IAI" means an institution that
--------------------------------- ---
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Payment Date" means the stated maturity of an installment of
---------------------
interest on the Securities.
"Interest Swap Obligations" means the obligations of any Person
-------------------------
pursuant to any arrangement with any other Person, whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by apply
-15-
<PAGE>
ing a fixed or a floating rate of interest on the same notional amount and shall
include, without limitation, interest rate swaps, caps, floors, collars and
similar agreements.
"Investment" means, with respect to any Person, any direct or indirect
----------
loan or other extension of credit (including, without limitation, a guarantee)
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 by such Person of any Capital Stock,
bonds, notes, debentures or other securities or evidences of Indebtedness issued
by, any Person. "Investment" shall exclude extensions of trade credit by the
Company and its Restricted Subsidiaries on commercially reasonable terms in
accordance with normal trade practices of the Company or such Restricted
Subsidiary, as the case may be.
For purposes of Section 4.03: (1) "Investment" shall include and be
valued at the fair market value of the net assets of any Restricted Subsidiary
of the Company at the time that such Restricted Subsidiary is designated an
Unrestricted Subsidiary of the Company and shall exclude the fair market value
of the net assets of any Unrestricted Subsidiary of the Company at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary of the
Company; and (2) the amount of any Investment shall be the original cost of such
Investment plus the cost of all additional Investments by the Company or any of
its Restricted Subsidiaries, without any adjustments for increases or decreases
in value, or write-ups, write-downs or write-offs with respect to such
Investment, reduced by the payment of dividends or distributions in connection
with such Investment or any other amounts received in respect of such
Investment; provided that no such payment of dividends or distributions or
--------
receipt of any such other amounts shall reduce the amount of any Investment if
such payment of dividends or distributions or receipt of any such amounts would
be included in Consolidated Net Income.
-16-
<PAGE>
If the Company or any Restricted Subsidiary of the Company sells or
otherwise disposes of any Common Stock of any direct or indirect Restricted
Subsidiary of the Company such that, after giving effect to any such sale or
disposition, the Company no longer owns, directly or indirectly, 100% of the
outstanding Common Stock of such Restricted Subsidiary, the Company shall be
deemed to have made an Investment on the date of any such sale or disposition
equal to the fair market value of the Common Stock of such Restricted Subsidiary
not sold or disposed of.
"Investors' Rights Agreement" means the Investors' Rights Agreement,
---------------------------
dated March 22, 1999, among the Company and certain of its investors.
"Issue Date" means April 30, 1999, the date of original issuance of
----------
any Securities under this Indenture.
"Legal Defeasance" has the meaning set forth in Section 8.02.
----------------
"Lien" means any lien, mortgage, deed of trust, pledge, security
----
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof and any
agreement to give any security interest).
"Maturity Date" means May 1, 2009.
-------------
"Net Cash Proceeds" means, with respect to any Asset Sale, the
-----------------
proceeds in the form of cash or Cash Equivalents including payments in respect
of deferred payment obligations when received in the form of cash or Cash
Equivalents (other than the portion of any such deferred payment constituting
interest) received by the Company or any of its Restricted Subsidiaries from
such Asset Sale net of (a) reasonable out-of-pocket expenses and fees relating
to such Asset Sale (including, without limitation, legal, accounting and
investment banking fees and sales commissions), (b) taxes paid or payable after
taking into account any reduction in consolidated tax liability due to available
tax credits or deductions and any tax sharing arrangements, (c) repayment of
Indebtedness that is re-
-17-
<PAGE>
quired to be repaid in connection with such Asset Sale, (d) appropriate amounts
to be provided by the Company or any Restricted Subsidiary, as the case may be,
as a reserve, in accordance with GAAP, against any liabilities associated with
such Asset Sale and retained by the Company or any Restricted Subsidiary, as the
case may be, after such Asset Sale, including, without limitation, pension and
other post-employment benefit liabilities, liabilities related to environmental
matters and liabilities under any indemnification obligations associated with
such Asset Sale, and (e) all distributions and other payments required to be
made to minority interest holders in Restricted Subsidiaries or joint ventures
as a result of such Asset Sale.
"Net Proceeds Offer" has the meaning set forth in Section 4.16.
------------------
"Net Proceeds Offer Amount" has the meaning set forth in Section 4.16.
-------------------------
"Net Proceeds Offer Payment Date" has the meaning set forth in Section
-------------------------------
4.16.
"Net Proceeds Offer Trigger Date" has the meaning set forth in Section
-------------------------------
4.16.
"Non-payment Default" has the meaning set forth in Section 10.02.
-------------------
"Non-U.S. Person" has the meaning assigned to such term in Regulation
---------------
S.
"Obligations" means all obligations for principal, premium, interest,
-----------
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, with respect to any Person, the Chairman of the
-------
Board, the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Controller, or the Secretary of such Person.
-18-
<PAGE>
"Officers' Certificate" means a certificate signed by two Officers of
---------------------
the Company.
"144A Global Security" means a permanent global security in registered
--------------------
form representing the aggregate principal amount of Securities sold in reliance
on Rule 144A under the Securities Act.
"Opinion of Counsel" means a written opinion from legal counsel which
------------------
opinion and counsel are reasonably acceptable to the Trustee.
"Participants" has the meaning set forth in Section 2.15.
------------
"Paying Agent" has the meaning set forth in Section 2.03.
------------
"Payment Blockage Notice" has the meaning set forth in Section 10.02.
-----------------------
"Payment Blockage Period" has the meaning set forth in Section 10.02.
-----------------------
"Payment Default" has the meaning set forth in Section 10.02.
---------------
"Permitted Holders" means Apollo Management, L.P. and its Affiliates
-----------------
and management of the Company.
"Permitted Indebtedness" means, without duplication, each of the
----------------------
following:
(i) Indebtedness under the Securities and the Guarantees issued on
the Issue Date in an aggregate principal amount not to exceed $200 million;
(ii) Indebtedness incurred pursuant to the Credit Agreement in an
aggregate principal amount at any time outstanding not to exceed $375.0
million less the amount of all repayments and permanent commitment
reductions under the Credit Agreement with the Net Cash Proceeds of an
Asset Sale applied thereto as required by Section 4.16;
-19-
<PAGE>
provided that the amount of Indebtedness permitted to be incurred pursuant to
- --------
the Credit Agreement in accordance with this clause (ii) shall be in addition to
any Indebtedness permitted to be incurred pursuant to the Credit Agreement in
reliance on and in accordance with clause (xvi) below; provided, further,
-------- -------
that the aggregate principal amount of Indebtedness permitted to be incurred
under this clause (ii) shall be reduced dollar for dollar by any Indebtedness
outstanding under clause (xv) below;
(iii) Indebtedness under the Convertible Subordinated Notes reduced
by any principal payments or conversions thereof;
(iv) other Indebtedness of the Company and its Restricted
Subsidiaries outstanding on the Issue Date reduced by the amount of any
scheduled amortization payments or mandatory prepayments when actually paid
or permanent reductions thereon;
(v) Interest Swap Obligations of the Company or any Restricted
Subsidiary of the Company covering Indebtedness of the Company or any of
its Restricted Subsidiaries; provided, however, that such Interest Swap
-------- -------
Obligations are entered into to protect the Company and its Restricted
Subsidiaries from fluctuations in interest rates on their outstanding
Indebtedness to the extent the notional principal amount of such Interest
Swap Obligations does not, at the time of the incurrence thereof, exceed
the principal amount of the Indebtedness to which such Interest Swap
Obligations relate;
(vi) Indebtedness under Currency Agreements; provided that in the
--------
case of Currency Agreements which relate to Indebtedness, such Currency
Agreements do not increase the Indebtedness of the Company and its
Restricted Subsidiaries outstanding other than as a result of fluctuations
in foreign currency exchange rates or by reason of fees, indemnities and
compensation payable thereunder;
(vii) Indebtedness of a Restricted Subsidiary of the Company to the
Company or to a Wholly Owned Restricted
-20-
<PAGE>
Subsidiary of the Company for so long as such Indebtedness is held by the
Company, a Wholly Owned Restricted Subsidiary of the Company or the lenders
or collateral agent under the Credit Agreement, in each case subject to no
Lien held by a Person other than the Company, a Wholly Owned Restricted
Subsidiary of the Company or the lenders or collateral agent under the
Credit Agreement; provided that if as of any date any Person other than the
--------
Company, a Wholly Owned Restricted Subsidiary of the Company or the lenders
or collateral agent under the Credit Agreement owns or holds any such
Indebtedness or holds a Lien in respect of such Indebtedness, such date
shall be deemed the incurrence of Indebtedness not constituting Permitted
Indebtedness by the issuer of such Indebtedness;
(viii) Indebtedness of the Company to a Wholly Owned Restricted
Subsidiary of the Company or the lenders or collateral agent under the
Credit Agreement for so long as such Indebtedness is held by a Wholly Owned
Restricted Subsidiary of the Company or the lenders or collateral agent
under the Credit Agreement in each case subject to no other Lien; provided
--------
that (a) any Indebtedness of the Company to any Wholly Owned Restricted
Subsidiary of the Company is unsecured and subordinated, pursuant to a
written agreement, to the Company's obligations under this Indenture and
the Securities and (b) if as of any date any Person other than a Wholly
Owned Restricted Subsidiary of the Company or the lenders or collateral
agent under the Credit Agreement owns or holds any such Indebtedness or any
Person holds a Lien (other than a Lien in favor of the lenders or
collateral agent under the Credit Agreement) in respect of such
Indebtedness, such date shall be deemed the incurrence of Indebtedness not
constituting Permitted Indebtedness by the Company;
(ix) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument inadvertently
(except in the case of daylight overdrafts) drawn against insufficient
funds in the ordinary course of business; provided, however, that such
-------- -------
Indebtedness is extinguished within two business days of incurrence;
-21-
<PAGE>
(x) Indebtedness of the Company or any of its Restricted
Subsidiaries represented by letters of credit for the account of the
Company or such 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;
(xi) Indebtedness represented by Capitalized Lease Obligations and
Purchase Money Indebtedness of the Company and its Restricted Subsidiaries
incurred in the ordinary course of business not to exceed $20.0 million at
any one time outstanding; provided that all or a portion of the $20 million
--------
permitted to be incurred pursuant to this clause (xi) may, at the option of
the Company, be incurred under the Credit Agreement instead of pursuant to
Capitalized Lease Obligations or Purchase Money Indebtedness;
(xii) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary of the Company providing for indemnification,
adjustment of purchase price or similar obligations, in each case, incurred
or assumed in connection with the disposition of any business, assets or a
Subsidiary, other than guarantees of Indebtedness incurred by any Person
acquiring all or any portion of such business, assets or a Subsidiary for
the purpose of financing such acquisition; provided, however, that (a) such
-------- -------
Indebtedness is not reflected on the balance sheet of the Company or any
Restricted Subsidiary of the Company (contingent obligations referred to in
a footnote to financial statements and not otherwise reflected on the
balance sheet will not be deemed to be reflected on such balance sheet for
purposes of this clause (a)) and (b) the maximum assumable liability in
respect of all such Indebtedness shall at no time exceed the gross proceeds
including non-cash proceeds (the fair market value of such non-cash
proceeds being measured at the time it is received and without giving
effect to any subsequent changes in value) actually received by the Company
and its Restricted Subsidiaries in connection with such disposition;
-22-
<PAGE>
(xiii) Indebtedness of the Company or any of its Restricted
Subsidiaries in respect of performance bonds, bankers' acceptances,
workers' compensation claims, surety or appeal bonds, payment obligations
in connection with self-insurance or similar obligations, and bank
overdrafts (and letters of credit in respect thereof);
(xiv) Refinancing Indebtedness;
(xv) the incurrence by a Receivables Subsidiary of Indebtedness
in a Qualified Receivables Transaction that is without recourse to the
Company or to any Restricted Subsidiary of the Company or their assets
(other than such Receivables Subsidiary and its assets), and is not
guaranteed by any such Person; provided that any outstanding Indebtedness
--------
incurred under this clause (xv) shall reduce the aggregate amount permitted
to be incurred under clause (ii) above to the extent set forth therein; and
(xvi) additional Indebtedness of the Company and its Restricted
Subsidiaries in an aggregate principal amount not to exceed $20.0 million
at any one time outstanding (which amount may, but need not, be incurred in
whole or in part under the Credit Agreement).
For purposes of determining compliance with Section 4.04, in the event
that an item of Indebtedness meets the criteria of more than one of the
categories of Permitted Indebtedness described in clauses (i) through (xvi)
above or is entitled to be incurred pursuant to the Consolidated Fixed Charge
Coverage Ratio provisions of Section 4.04, the Company shall, in its sole
discretion, classify (or later reclassify) such item of Indebtedness in any
manner that complies with Section 4.04. Accrual of interest, accretion or
amortization of original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the same terms, and the
payment of dividends on Disqualified Capital Stock in the form of additional
shares of the same class of Disqualified Capital Stock will not be deemed to be
an incurrence of Indebtedness or an issuance of Disqualified Capital Stock for
purposes of Section 4.04.
-23-
<PAGE>
"Permitted Investments" means:
---------------------
(i) Investments by the Company or any Restricted Subsidiary of the
Company in any Person that is or will become immediately after such Investment a
Wholly Owned Restricted Subsidiary of the Company or that will merge or
consolidate into the Company or a Wholly Owned Restricted Subsidiary of the
Company;
(ii) Investments in the Company by any Restricted Subsidiary of the
Company; provided that any Indebtedness evidencing such Investment is unsecured
--------
and subordinated, pursuant to a written agreement, to the Company's obligations
under the Securities and this Indenture;
(iii) Investments in cash and Cash Equivalents;
(iv) loans and advances to employees and officers of the Company and
its Restricted Subsidiaries in the ordinary course of business for bona fide
business purposes not in excess of $5.0 million at any one time outstanding;
(v) Currency Agreements and Interest Swap Obligations entered into in
the ordinary course of the Company's or its Restricted Subsidiaries' businesses
and otherwise in compliance with this Indenture;
(vi) additional Investments (including joint ventures) not to exceed
$10.0 million at any one time outstanding;
(vii) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such trade creditors or customers;
(viii) Investments made by the Company or its Restricted Subsidiaries
as a result of consideration received in connection with an Asset Sale made in
compliance with Section 4.16 or any Investment made by the Company or any
Restricted Subsidiary in connection with a transaction that would be an Asset
Sale if it involved aggregate consideration of $1.5 million or more;
-24-
<PAGE>
(ix) Investments of a Person or any of its Subsidiaries existing at
the time such Person becomes a Restricted Subsidiary of the Company or at the
time such Person merges or consolidates with the Company or any of its
Restricted Subsidiaries, in either case in compliance with this Indenture;
provided that such Investments were not made by such Person in connection with,
- --------
or in anticipation or contemplation of, such Person becoming a Restricted
Subsidiary of the Company or such merger or consolidation;
(x) repurchases of Capital Stock of the Company deemed to occur upon
the exercise of stock options if such Capital Stock represents a portion of the
exercise price thereof;
(xi) Investments made by the Company or any Restricted Subsidiary in
connection with purchase price adjustments, contingent purchase price payments
or other earnout payments required in connection with Investments otherwise
permitted under this Indenture;
(xii) Investments in securities received in settlement of trade
obligations in the ordinary course of business; and
(xiii) Investments in the Securities.
"Permitted Liens" means the following types of Liens:
---------------
(i) Liens for taxes, assessments or governmental charges or claims
either (a) not delinquent or (b) contested in good faith by appropriate
proceedings and as to which the Company or its Restricted Subsidiaries
shall have set aside on its books such reserves as may be required pursuant
to GAAP;
(ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen and other Liens
imposed by law incurred in the ordinary course of business for sums not yet
delinquent or being contested in good faith, if such reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made in respect thereof;
-25-
<PAGE>
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, including any Lien securing letters of
credit issued in the ordinary course of business consistent with past
practice in connection therewith, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return-of-money bonds and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(iv) 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 shall
not have been finally terminated or the period within which such
proceedings may be initiated shall not have expired;
(v) easements, rights-of-way, zoning restrictions and other
similar charges or encumbrances in respect of real property not interfering
in any material respect with the ordinary conduct of the business of the
Company or any of its Restricted Subsidiaries;
(vi) any interest or title of a lessor under any Capitalized Lease
Obligation; provided that such Liens do not extend to any property or asset
--------
which is not leased property subject to such Capitalized Lease Obligation;
(vii) Liens securing Capitalized Lease Obligations and Purchase
Money Indebtedness permitted pursuant to clause (xi) of the definition of
"Permitted Indebtedness" above; provided, however, that in the case of
-------- -------
Purchase Money Indebtedness (a) the Indebtedness shall not exceed the cost
of such property or assets and shall not be secured by any property or
assets of the Company or any Restricted Subsidiary of the Company other
than the property and assets so acquired and (b) the Lien securing such
Indebtedness shall be created within 180 days of such acquisition or
construction or, in the case of a refinancing of any Pur-
-26-
<PAGE>
chase Money Indebtedness, within 180 days of such refinancing;
(viii) Liens upon specific items of inventory or other goods and
proceeds of any Person securing such Person's obligations in respect of
bankers' acceptances issued or created for the account of such Person to
facilitate the purchase, shipment or storage of such inventory or other
goods;
(ix) Liens securing reimbursement obligations with respect to
commercial letters of credit which encumber documents and other property
relating to such letters of credit and products and proceeds thereof;
(x) Liens encumbering deposits made to secure obligations
arising from statutory, regulatory, contractual, or warranty requirements
of the Company or any of its Restricted Subsidiaries, including rights of
offset and set-off;
(xi) Liens securing Interest Swap Obligations which Interest Swap
Obligations relate to Indebtedness that is otherwise permitted under this
Indenture;
(xii) Liens in the ordinary course of business not exceeding $5
million at any one time outstanding that (a) are not incurred in connection
with borrowing of money and (b) do not materially detract from the value of
the property or materially impair its use;
(xiii) Liens by reason of judgment or decree not otherwise
resulting in an Event of Default;
(xiv) Liens securing Indebtedness under Currency Agreements
permitted under this Indenture;
(xv) Liens securing Acquired Indebtedness incurred in accordance
with Section 4.04; provided that: (a) such Liens secured such Acquired
--------
Indebtedness at the time of and prior to the incurrence of such Acquired
Indebtedness by the Company or a Restricted Subsidiary of the Company and
were not granted in connection with, or in anticipa-
-27-
<PAGE>
tion of, the incurrence of such Acquired Indebtedness by the Company or a
Restricted Subsidiary of the Company; and (b) such Liens do not extend to
or cover any property or assets of the Company or any of its Restricted
Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired
Indebtedness of the Company or a Restricted Subsidiary of the Company and
are no more favorable to the lienholders than those securing the Acquired
Indebtedness prior to the incurrence of such Acquired Indebtedness by the
Company or a Restricted Subsidiary of the Company; and
(xvi) Liens securing Indebtedness permitted to be incurred pursuant
to clause (xvi) of the definition of "Permitted Indebtedness."
"Person" means an individual, partnership, corporation, limited
------
liability company, unincorporated organization, trust or joint venture, or a
governmental agency or political subdivision thereof.
"Physical Securities" shall have the meaning provided in Section 2.01.
-------------------
"Preferred Stock" of any Person means any Capital Stock of such Person
---------------
that has preferential rights to any other Capital Stock of such Person with
respect to dividends or redemptions or upon liquidation.
"Principal" of any Indebtedness (including the Securities) means the
---------
principal amount of such Indebtedness plus the premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legends initially set forth on
------------------------
the Securities in the form set forth in Exhibit B.
---------
"Purchase Money Indebtedness" means Indebtedness of the Company and
---------------------------
its Restricted Subsidiaries incurred in the normal course of business for the
purpose of financing all or any part of the purchase price, or the cost of
installation,
-28-
<PAGE>
construction or improvement, of property or equipment and any Refinancings
thereof.
"Qualified Capital Stock" means any Capital Stock that is not
-----------------------
Disqualified Capital Stock.
"Qualified Institutional Buyer" or "QIB" shall have the meaning
----------------------------- ---
specified in Rule 144A under the Securities Act.
"Qualified Receivables Transaction" means any transaction or series of
---------------------------------
transactions that may be entered into by the Company or any of its Restricted
Subsidiaries pursuant to which the Company or any of its Restricted Subsidiaries
may sell, convey or otherwise transfer to (i) a Receivables Subsidiary (in the
case of a transfer by the Company or any of its Restricted Subsidiaries) and
(ii) any other Person (in the case of transfer by a Receivables Subsidiary), or
may grant a security interest in, any accounts receivable (whether now existing
or arising in the future) of the Company or any of its Restricted Subsidiaries,
and any assets related thereto, including, without limitation, all collateral
securing such accounts receivable, all contracts and all guarantees or other
obligations in respect of such accounts receivable, proceeds of such accounts
receivable and other assets which are customarily transferred or in respect of
which security interests are customarily granted in connection with asset
securitization transactions involving accounts receivable.
"Receivables Subsidiary" means a Wholly Owned Restricted 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 provided below) as a Receivables Subsidiary (a) no
portion of the Indebtedness or any other Obligations (contingent or otherwise)
of which (i) is guaranteed by the Company or any Restricted Subsidiary of the
Company (excluding guarantees of Obligations (other than the principal of, and
interest on, Indebtedness) pursuant to representations, warranties, covenants
and indemnities entered into in the ordinary course of business in connection
with a Qualified Receivables Transaction), (ii) is recourse to or obligates the
Company or any Restricted Subsidiary of the Company in any way other than
-29-
<PAGE>
pursuant to representations, warranties, covenants and indemnities entered into
in the ordinary course of business in connection with a Qualified Receivables
Transaction, or (iii) subjects any property or asset of the Company or any
Restricted Subsidiary of the Company, directly or indirectly, contingently or
otherwise, to the satisfaction thereof, other than pursuant to representations,
warranties, covenants and indemnities entered into in the ordinary course of
business in connection with a Qualified Receivables Transaction, (b) with which
neither the Company nor any Restricted Subsidiary of the Company 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 who are not Affiliates of the
Company, other than fees payable in the ordinary course of business in
connection with servicing accounts receivable, and (c) with which neither the
Company nor any Restricted Subsidiary of the Company has any obligation to
maintain or preserve such Restricted Subsidiary's financial condition or cause
such Restricted Subsidiary to achieve certain levels of operating results. Any
such designation by the Board of Directors of the Company shall be evidenced to
the Trustee by filing with the Trustee a Board Resolution giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions.
"Record Date" means the applicable Record Date specified in the
-----------
Securities; provided 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 Security to be
---------------
redeemed, means the date fixed for such redemption pursuant to this Indenture
and the Securities.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the price fixed for such redemption, payable in immediately
available funds, pursuant to this Indenture and the Securities.
"Reference Date" has the meaning set forth in Section 4.03.
--------------
-30-
<PAGE>
"Refinance" means, in respect of any security or Indebtedness, to
---------
refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or
to issue a security or Indebtedness in exchange or replacement for, such
security or Indebtedness in whole or in part. "Refinanced" and "Refinancing"
shall have correlative meanings.
"Refinancing Indebtedness" means any Refinancing by the Company or any
------------------------
Restricted Subsidiary of the Company of Indebtedness incurred or existing in
accordance with Section 4.04 (other than pursuant to clause (ii), (v), (vi),
(vii), (viii), (ix), (x), (xi), (xii), (xiii), (xv) or (xvi) of the definition
of "Permitted Indebtedness"), in each case that does not (1) result in an
increase in the aggregate principal amount of Indebtedness of such Person as of
the date of such proposed Refinancing (plus the amount of any premium required
to be paid under the terms of the instrument governing such Indebtedness and
plus the amount of reasonable expenses incurred by the Company in connection
with such Refinancing) or (2) create Indebtedness with (A) a Weighted Average
Life to Maturity that is less than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced or (B) a final maturity earlier than the final
maturity of the Indebtedness being Refinanced; provided that (x) if such
--------
Indebtedness being Refinanced is Indebtedness of the Company, then such
Refinancing Indebtedness shall be Indebtedness solely of the Company and (y) if
such Indebtedness being Refinanced is subordinate or junior to the Securities,
then such Refinancing Indebtedness shall be subordinate to the Securities at
least to the same extent and in the same manner as the Indebtedness being
Refinanced.
"Registrar" has the meaning set forth in Section 2.03.
---------
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of the Issue Date among the Company, the Guarantors and the
Initial Purchasers.
"Regulation S" means Regulation S under the Securities Act.
------------
-31-
<PAGE>
"Regulation S Global Security" means a permanent global security in
----------------------------
registered form representing the aggregate principal amount of Securities sold
in reliance on Regulation S under the Securities Act.
"Replacement Assets" has the meaning set forth in Section 4.16.
------------------
"Representative" means the indenture trustee or other trustee, agent
--------------
or representative in respect of any Designated Senior Debt; provided 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 in respect of any Designated Senior Debt.
"Responsible Officer" means, when used with respect to the Trustee,
-------------------
any officer in the Corporate Trust Office of the Trustee including any vice
president, assistant vice president, assistant secretary, treasurer, assistant
treasurer, or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Restricted Payment" has the meaning set forth in Section 4.03.
------------------
"Restricted Security" means a Security 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 Security
constitutes a Restricted Security.
"Restricted Subsidiary" of any Person means any Subsidiary of such
---------------------
Person which at the time of determination is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
---------
-32-
<PAGE>
"Sale and Leaseback Transaction" means any direct or indirect
------------------------------
arrangement with any Person or to which any such Person is a party, providing
for the leasing to the Company or a Restricted Subsidiary of any property,
whether owned by the Company or any Restricted Subsidiary at the Issue Date or
later acquired, which has been or is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person from whom funds
have been or are to be advanced by such Person on the security of such property.
"Securities" means, collectively, the Company's 10 1/2% Senior
----------
Subordinated Notes due 2009 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.
"Securities Act" means the Securities Act of 1933, as amended, or any
--------------
successor statute or statutes thereto.
"Securities Purchase Agreement" means the Securities Purchase
-----------------------------
Agreement, dated as of March 22, 1999, between Boss Investment, LLC and the
Company.
"Securityholder" or "Holder" means the Person in whose name a Security
-------------- ------
is registered on the Registrar's books.
"Senior Debt" means the principal of, premium, if any, and interest
-----------
(including any interest accruing subsequent to the filing of a petition of
bankruptcy at the rate provided for in the documentation with respect thereto,
whether or not such interest is an allowed claim under applicable 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 Securities. 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 the
filing of a petition of bankruptcy at the rate provided for in the documentation
with
-33-
<PAGE>
respect thereto, whether or not such interest is an allowed claim under
applicable law) on, and all other amounts owing by the Company in respect of,
(i) all monetary obligations of every nature of the Company under, or with
respect to, the Credit Agreement, including, without limitation, obligations to
pay principal and interest, reimbursement obligations under letters of credit,
fees, expenses and indemnities, (ii) all Interest Swap Obligations (including
guarantees thereof) and (iii) all obligations under Currency Agreements
(including guarantees thereof), in each case whether outstanding on the Issue
Date or thereafter incurred. Notwithstanding the foregoing, "Senior Debt" shall
not include (i) any Indebtedness of the Company to a Subsidiary of the Company,
(ii) Indebtedness to, or guaranteed on behalf of, any shareholder, director,
officer or employee of the Company or any Subsidiary of the Company (including,
without limitation, amounts owed for compensation) other than a shareholder who
is a lender (or an Affiliate of a lender) under the Credit Facilities (including
the Credit Agreement), (iii) Indebtedness to trade creditors and other amounts
incurred in connection with obtaining goods, materials or services, (iv)
Indebtedness represented by Disqualified Capital Stock, (v) any liability for
federal, state, local or other taxes owed or owing by the Company, (vi) that
portion of any Indebtedness incurred in violation of Section 4.04 (but, as to
any such obligation, no such violation shall be deemed to exist for purposes of
this clause (vi) 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 this Indenture), (vii) Indebtedness represented by the
Convertible Subordinated Notes, (viii) 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 (ix) any Indebtedness which is, by
its express terms, subordinated in right of payment to any other Indebtedness of
the Company.
"Significant Subsidiary," with respect to any Person, means any
----------------------
Restricted Subsidiary of such Person that satisfies
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<PAGE>
the criteria for a "significant subsidiary" set forth in Rule 1.02(w) of
Regulation S-X under the Exchange Act based upon the most recent pro forma
--- -----
annual financial information filed by the Company with the Commission.
"Subsidiary," with respect to any Person, means (i) any corporation of
----------
which the outstanding Capital Stock having at least a majority of the votes
entitled to be cast in the election of directors under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or (ii) any
other Person of which at least a majority of the voting interest under ordinary
circumstances is at the time, directly or indirectly, owned by such Person.
"Surviving Entity" has the meaning set forth in Section 5.01.
----------------
"Tender Offer" means (i) the purchase of the Company's common stock,
------------
including shares underlying certain options, pursuant to the Company's offer to
purchase dated February 19, 1999, as amended through the Issue Date or (ii) to
the extent that the Company has not purchased an aggregate of 25.5 million
shares of its common stock, including shares underlying options, pursuant to the
offer to purchase described in clause (i), any other purchase of the Company's
common stock or shares underlying options to purchase the Company's common stock
within 180 days of the Issue Date, provided that the aggregate amount expended
--------
pursuant to clauses (i) and (ii) shall not exceed $573.75 million.
"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 9.03.
"Trust Officer" means any officer or assistant officer of the Trustee
-------------
assigned by the Trustee to administer its corporate trust matters or, in the
case of a successor trustee, an officer assigned to the department, division or
group performing the corporate trust work of such successor.
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<PAGE>
"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 Securities 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" of any Person means (i) any Subsidiary of
-----------------------
such Person that at the time of determination shall be or continue to be
designated an Unrestricted Subsidiary by the Board of Directors of such Person
in the manner provided below and (ii) any Subsidiary of an Unrestricted
Subsidiary. The Board of Directors may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary
unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on
any property of, the Company or any other Subsidiary of the Company that is not
a Subsidiary of the Subsidiary to be so designated; provided that (x) the
--------
Company certifies to the Trustee that such designation complies with Section
4.03 and (y) each Subsidiary to be so designated and each of its Subsidiaries
has not at the time of designation, and does not thereafter, create, incur,
issue, assume, guarantee or otherwise become directly or indirectly liable with
respect to any Indebtedness pursuant to which the lender has recourse to any of
the assets of the Company or any of its Restricted Subsidiaries. The Board of
Directors may designate any Unrestricted Subsidiary to be a Restricted
Subsidiary only if (x) immediately after giving effect to such designation, the
Company is able to incur at least $1.00 of additional Indebtedness (other than
Permitted Indebtedness) in compliance with Section 4.04 and (y) immediately
before and immediately after giving effect to such designation, no Default or
Event of Default shall have occurred and be continuing. Any such designation by
the Board of Directors shall be evidenced to the Trustee by promptly filing with
the Trustee a copy of the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation complied with the
foregoing provisions.
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<PAGE>
"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.
"Weighted Average Life to Maturity" means, when applied to any
---------------------------------
Indebtedness at any date, the number of years obtained by dividing (a) the then
outstanding aggregate principal amount of such Indebtedness into (b) the sum of
the total of the products obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) which will elapse
between such date and the making of such payment.
"Wholly Owned Restricted Subsidiary" of any Person means any Wholly
----------------------------------
Owned Subsidiary of such Person which at the time of determination is a
Restricted Subsidiary of such Person.
"Wholly Owned Subsidiary" of any Person means any Subsidiary of such
-----------------------
Person of which all the outstanding voting securities (other than in the case of
a foreign Subsidiary, directors' qualifying shares or an immaterial amount of
shares required to be owned by other Persons pursuant to applicable law) are
owned by such Person or any Wholly Owned Subsidiary of such Person.
SECTION 1.02. 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:
"indenture securities" means the Securities.
--------------------
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<PAGE>
"indenture security holder" means a Holder or a Securityholder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company, any Guarantor
-------
or any other obligor on the Securities.
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 1.03. 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; and
(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.
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<PAGE>
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
---------------
The Securities and the Trustee's certificate of authentication shall
be substantially in the form of Exhibit A hereto. The Securities may have
----------
notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall approve the form of the Securities and any notation,
legend or endorsement on them. Each Security shall be dated the date of its
issuance and show the date of its authentication. Each Security shall have an
executed Guarantee from each of the Guarantors endorsed thereon substantially in
the form of Exhibit E.
---------
The terms and provisions contained in the Securities and the
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.
Securities offered and sold in reliance on Rule 144 and Securities
offered and sold in reliance on Regulation S shall be issued initially in the
form of one or more Global Securities, 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 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 Securities 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.
Securities issued in exchange for interests in a Global Security
pursuant to Section 2.16 may be issued in the form of permanent certificated
Securities in registered form in
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<PAGE>
substantially the form set forth in Exhibit A (the "Physical Securities").
--------- -------------------
SECTION 2.02. Execution and Authentication.
----------------------------
Two Officers, or an Officer and an Assistant Secretary, shall sign, or
one Officer shall sign and one Officer or an Assistant Secretary (each of whom
shall, in each case, have been duly authorized by all requisite corporate
actions) shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security or 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 Security, the Security
shall nevertheless be valid.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate Securities for original issue on the
Issue Date in the aggregate principal amount of $200,000,000 upon a written
order of the Company in the form of an Officers' Certificate. In addition, the
Trustee shall authenticate Securities for original issue after the Issue Date in
the aggregate principal amount of up to $200,000,000 upon a written order of the
Company in the form of an Officers' Certificate. Each such Officers'
Certificate shall specify the amount of Securities to be authenticated and the
date on which the Securities are to be authenticated. The aggregate principal
amount of Securities outstanding at any time may not exceed $400,000,000, except
as provided in Section 2.07.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
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<PAGE>
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 Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and integral multiples thereof.
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) Securities may be presented or
surrendered for registration of transfer or for exchange ("Registrar"), (b)
---------
Securities may be presented or surrendered for payment ("Paying Agent") and (c)
------------
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company may also from time to time designate one
or more other offices or agencies where the Securities may be presented or
surrendered for any or all such purposes and may from time to time rescind 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, Paying Agent or Calculation Agent except
that for the purposes of Articles Three and Eight and Sections 4.15 and 4.16,
neither the Company nor any Affiliate of the Company shall act as Paying Agent.
The Registrar shall keep a register of the Securities 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 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
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<PAGE>
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 Four and Article Twelve, 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
Securities (whether such assets have been distributed to it by the Company or
any other obligor on the Securities), and shall notify the Trustee of any
Default by the Company (or any other obligor on the Securities) in making any
such payment. If the Company or a Subsidiary acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund. 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 on or before each Interest Payment Date and at such other times as the
Trustee may request in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of Holders, which
list may be conclusively relied upon by the Trustee.
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<PAGE>
SECTION 2.06. Transfer and Exchange.
---------------------
Subject to Sections 2.15 and 2.16, when Securities are presented to
the Registrar or a co-Registrar with a request to register the transfer of such
Securities or to exchange such Securities for an equal principal amount of
Securities 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
-------- -------
Securities 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 attorney duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities 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. The Registrar or
co-Registrar shall not be required to register the transfer of or exchange of
any Security (i) during a period beginning at the opening of business 15 days
before the mailing of a notice of redemption of Securities 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
Security being redeemed in part, and (iii) during a Change of Control Offer or
an Net Proceeds Offer if such Security is tendered pursuant to such Change of
Control Offer or Net Proceeds Offer and not withdrawn.
Any Holder of a beneficial interest in a Global Security shall, by
acceptance of such beneficial interest, agree that transfers of beneficial
interests in such Global Securities may be effected only through a book entry
system maintained by the Holder of such Global Security (or its agent), and that
ownership of a beneficial interest in the Security shall be required to be
reflected in a book entry system.
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<PAGE>
SECTION 2.07. Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Company, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Company and the Trustee, to protect the
Company, the Trustee or any Agent from any loss which any of them may suffer if
a Security is replaced. The Company may charge such Holder for its reasonable
out-of-pocket expenses in replacing a Security pursuant to this Section 2.07,
including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the Company
and every replacement Guarantee shall constitute an additional obligation of the
Guarantors.
SECTION 2.08. Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company, the Guarantors
or any of their respective Affiliates holds the Security (subject to the
provisions of Section 2.09).
If a Security is replaced pursuant to Section 2.07 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a protected purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section
2.07. If the principal amount of any Security is considered paid under Section
4.01, it ceases to be outstanding and interest ceases to accrue.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or a Subsidiary) holds U.S.
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<PAGE>
Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Securities payable on that date, then on and
after that date such Securities cease to be outstanding and interest on them
ceases to accrue.
SECTION 2.09. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, any of its Subsidiaries or any of their respective Affiliates
shall be disregarded, except that, for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Securities that the Trustee knows or has reason to know are so owned shall
be disregarded.
SECTION 2.10. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary Securities.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities in exchange for temporary Securities. Until
such exchange, temporary Securities shall be entitled to the same rights,
benefits and privileges as definitive Securities. Notwithstanding the
foregoing, so long as the Securities are represented by a Global Security, such
Global Security may be in typewritten form.
SECTION 2.11. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities 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 a Subsidiary), and no one else, shall cancel and, at
the written direction of the Company, shall dispose of all Securities
surrendered for transfer, ex-
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<PAGE>
change, payment or cancellation. Subject to Section 2.07, the Company may not
issue new Securities to replace Securities that it has paid or delivered to the
Trustee for cancellation. If the Company or any Guarantor shall acquire any of
the Securities, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation pursuant to this
Section 2.11.
SECTION 2.12. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Securities, 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 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 Securities 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 Securities, and that reliance may be
placed only on the other identification numbers printed on the Securities.
SECTION 2.14. Deposit of Moneys.
-----------------
Prior to 11:00 a.m. New York City time on each Interest Payment Date,
Maturity Date, Redemption Date, Change of
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<PAGE>
Control Payment Date and Net Proceeds Offer Payment 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 Net Proceeds Offer Payment
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 Net Proceeds Offer Payment
Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
-------------------------------------------
(a) The Global Securities 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 Security held on
their behalf by the Depository, or the Trustee as its custodian, or under the
Global Security, 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
Security 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 Security.
(b) Transfers of Global Securities 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 Securities may be
transferred or exchanged for Physical Securities in accordance with the rules
and procedures of the Depository and the provisions of Section 2.16. In
addition, Physical Securities shall be transferred to all beneficial owners in
exchange for their beneficial inter-
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<PAGE>
ests in Global Securities if (i) the Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Security and a
successor Depository is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from the Depository to issue Physical
Securities.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in a Global Security to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Securities are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of such Global Security in an amount equal to the principal
amount of the beneficial interest in the Global Security to be transferred, and
the Company shall execute, and the Trustee shall authenticate and deliver, one
or more Physical Securities of authorized denominations in an aggregate
principal amount equal to the principal amount of the beneficial interest in the
Global Security so transferred.
(d) In connection with the transfer of a Global Security as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.15,
such Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, the Guarantors shall execute
Guarantees on and 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 Security, an equal
aggregate principal amount of Physical Securities of authorized denominations.
(e) Any Physical Security constituting a Restricted Security delivered
in exchange for an interest in a Global Security pursuant to paragraph (b) or
(c) 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 Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold interests
through Participants,
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<PAGE>
to take any action which a Holder is entitled to take under this Indenture or
the Securities.
SECTION 2.16. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors and Non-
---------------------------------------------------------------
U.S. Persons. The following additional 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 Security 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 Security, 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 Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the IAI Global Security or Regulation S
Global Security, as the case may be, 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 an increase
in the principal amount of the IAI Global Security or Regulation S Global
Security, as the case may be, in an amount equal to the principal amount of
Physical
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<PAGE>
Securities to be transferred, and the Registrar shall cancel the
Physical Securities so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in a Global Security, 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 Security from which such
interests are to be transferred in an amount equal to the principal amount
of the Securities to be transferred and (B) an increase in the principal
amount of the IAI Global Security or the Regulation S Global Security, as
the case may be, in an amount equal to the principal amount of the
Securities 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:
(i) the Registrar shall register the transfer of any Restricted
Security, whether or not such Security 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 Security, 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 Security 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
Security stating, or has otherwise advised the Company and the Registrar in
writing, that it is purchasing the Security for its own account or an
account with respect to which it exercises sole investment discretion and
that it and any such account is a QIB within the meaning of Rule 144A, and
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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 Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the 144A Global Security, 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 book and records the date and an increase
in the principal amount of the 144A Global Security in an amount equal to
the principal amount of Physical Securities to be transferred, and the
Registrar shall cancel the Physical Securities so transferred; and
(iii) if the proposed transferor is a Participant seeking to
transfer an interest in the IAI Global Security or the Regulation S Global
Security, 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
Security or the Regulation S Global Security, as the case may be, in an
amount equal to the principal amount of the Securities to be transferred
and (B) an increase in the principal amount of the 144A Global Security in
an amount equal to the principal amount of the Securities to be
transferred.
(c) Restrictions on Transfer and Exchange of Global Securities.
----------------------------------------------------------
Notwithstanding any other provisions of this Indenture, a Global Security 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 Securities not bearing the Private Placement Legend, the
Registrar or co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities 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 Security has been sold pursuant to
an effective registration statement under the Securities Act.
(e) General. By its acceptance of any Security bearing the Private
-------
Placement Legend, each Holder of such a Security acknowledges the restrictions
on transfer of such Security set forth in this Indenture and in the Private
Placement Legend and agrees that it will transfer such Security only as provided
in this Indenture.
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.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Securities pursuant to Paragraph 6 or
Paragraph 7 of the Securities, it shall notify the Trustee in writing of the
Redemption Date, the Redemption Price and the principal amount of Securities 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
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days before the Redemption Date (unless a shorter notice shall be agreed to by
the Trustee in writing), together with an Officers' Certificate stating that
such redemption will comply with the conditions contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
--------------------------------------
In the event that less than all of the Securities are to be redeemed
at any time, selection of such Securities for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed or, if such Securities are
not then listed on a national securities exchange, on a pro rata basis, by lot
--- ----
or by such method as the Trustee shall deem fair and appropriate; provided,
--------
however, that no Securities of a principal amount of $1,000 or less shall be
- -------
redeemed in part; and provided, further, that if a partial redemption is made
-------- -------
with the net cash proceeds of an Equity Offering, selection of the Securities or
portions thereof for redemption shall be made by the Trustee only on a pro rata
--- ----
basis or on as nearly a pro rata basis as is practicable (subject to the
--- ----
procedures of the Depository), unless such method is otherwise prohibited.
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 Securities are to be redeemed at its registered
address. At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. Each notice for
redemption shall identify the Securities 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;
(3) the name and address of the Paying Agent;
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(4) that Securities 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 Securities called for redemption ceases to accrue on
and after the Redemption Date, and the only remaining right of the Holders
of such Securities is to receive payment of the Redemption Price upon
surrender to the Paying Agent of the Securities redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(7) if fewer than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption; and
(8) the Paragraph of the Securities pursuant to which the
Securities 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 Security designated for redemption in whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
SECTION 3.04. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price plus accrued interest, if any. Upon surrender to
the Trustee
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<PAGE>
or Paying Agent, such Securities 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.
SECTION 3.05. Deposit of Redemption Price.
---------------------------
On or before 11:00 a.m. New York 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 Securities 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 Securities to be redeemed will cease to accrue on and
after the applicable Redemption Date, whether or not such Securities are
presented for payment.
SECTION 3.06. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part only, the
Trustee shall upon written instruction from the Company authenticate for the
Holder a new Security or Securities in a principal amount equal to the
unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
---------------------
The Company shall pay the principal of and interest on the Securities
in the manner provided in the Securities. An installment of principal of or
interest on the Securities shall be considered paid on the date it is due if the
Trustee or Paying Agent holds on that date U.S. Legal Tender designated for
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and sufficient to pay the installment. Interest on the Securities will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
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 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 13.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind 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 the Corporate Trust Office of
the Trustee located in the Borough of Manhattan, The City of New York, as such
office of the Company in accordance with Section 2.03.
SECTION 4.03. Limitation on Restricted Payments.
---------------------------------
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, (a) declare or pay any
dividend or make any distribution (other than dividends or distributions payable
in Qualified Capital Stock of the Company) on or in respect of shares of the
Company's Capital Stock to holders of such Capital Stock, (b) purchase, redeem
or otherwise acquire or retire for value any Capital Stock of the Company or any
warrants, rights or options to purchase or acquire shares of any class of such
Capital Stock, (c) make (i) any principal payment on, purchase, defease, redeem,
prepay, decrease or otherwise acquire or retire
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for value, prior to any scheduled final maturity, scheduled repayment or
scheduled sinking fund payment, any Indebtedness of the Company that is
subordinate or junior in right of payment to the Securities, including, without
limitation, the Convertible Subordinated Notes (except a conversion thereof into
Qualified Capital Stock) and (ii) any cash interest payments on the Convertible
Subordinated Notes or (d) make any Investment (other than Permitted Investments)
(each of the foregoing actions set forth in clauses (a), (b), (c) and (d) being
referred to as a "Restricted Payment"), if immediately after giving effect to
------------------
the Restricted Payment, (i) a Default or an Event of Default shall have occurred
and be continuing or (ii) the Company is not able to incur at least $1.00 of
additional Indebtedness (other than Permitted Indebtedness) in compliance with
Section 4.04 or (iii) the aggregate amount of Restricted Payments (including
such proposed Restricted Payment) made subsequent to the Issue Date (the amount
expended for such purposes, if other than in cash, being the fair market value
of such property as determined reasonably and in good faith by senior management
or, in the case of any such property in excess of $5 million, by the Board of
Directors of the Company) shall exceed the sum of: (w) 50% of the cumulative
Consolidated Net Income (or if cumulative Consolidated Net Income shall be a
loss, minus 100% of such loss) of the Company earned subsequent to the Issue
Date and on or prior to the date the Restricted Payment occurs (the "Reference
---------
Date") (treating such period as a single accounting period); plus (x) 100% of
- ----
(1) the aggregate net cash proceeds received by the Company from any Person
(other than a Subsidiary of the Company) from the issuance and sale subsequent
to the Issue Date and on or prior to the Reference Date of Qualified Capital
Stock of the Company and (2) the fair market value (as determined in good faith
by senior management or, in the case of a fair market value in excess of $5
million, by the Board of Directors of the Company) of shares of Qualified
Capital Stock of the Company issued subsequent to the Issue Date and on or prior
to the Reference Date in connection with Asset Acquisitions and other
acquisitions of property after the Issue Date; plus (y) without duplication of
any amounts included in clause (iii)(x) above, 100% of (1) the aggregate net
cash proceeds and (2) the fair market value of property other than cash (as
determined in good faith by senior management or, in the case of a fair market
value in excess of $5 million, by
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the Board of Directors of the Company), in each case of any equity contribution
received by the Company from a holder of the Company's Capital Stock subsequent
to the Issue Date and on or prior to the Reference Date; plus (z) without
duplication, the sum of (1) the aggregate amount returned in cash on or with
respect to Investments (other than Permitted Investments) made subsequent to the
Issue Date whether through interest payments, principal payments, dividends or
other distributions or payments, (2) the net cash proceeds received by the
Company or any of its Restricted Subsidiaries from the disposition of all or any
portion of such Investments (other than to a Subsidiary of the Company) and (3)
upon redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the
fair market value of such Subsidiary; provided, however, that the sum of clauses
(1), (2) and (3) above shall not exceed the aggregate amount of all such
Investments made subsequent to the Issue Date.
Notwithstanding the foregoing, the provisions set forth in the
immediately preceding paragraph do not prohibit: (1) the payment of any
dividend within 60 days after the date of declaration of such dividend if the
dividend would have been permitted on the date of declaration; (2) if no Default
or Event of Default shall have occurred and be continuing, the acquisition of
any shares of Capital Stock of the Company, either (i) solely in exchange for
shares of Qualified Capital Stock of the Company or (ii) through the application
of net proceeds of a substantially concurrent sale for cash (other than to a
Subsidiary of the Company) of shares of Qualified Capital Stock of the Company;
(3) if no Default or Event of Default shall have occurred and be continuing, the
acquisition of any Indebtedness of the Company that is subordinate or junior in
right of payment to the Securities either (i) solely in exchange for shares of
Qualified Capital Stock of the Company, or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of (A) shares of Qualified Capital Stock of the Company or (B)
Refinancing Indebtedness; (4) so long as no Default or Event of Default shall
have occurred and be continuing, repurchases by the Company of Common Stock of
the Company from employees of the Company or any of its Subsidiaries or their
authorized representatives upon the death, disability or termination of
employment of such employees, in an aggregate amount not to exceed $5 million in
any calendar year; (5) the consummation of the Tender Offer; (6) so long as no
Default or Event of Default shall have occurred or be continuing, the
declaration and pay-
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ment of dividends to holders of any class or series of Preferred Stock of the
Company (other than Disqualified Capital Stock) issued after the Issue Date,
provided that after giving effect to such issuance on a
pro forma basis, the Company would be permitted to incur at least $1.00 of
- --- -----
additional Indebtedness (other than Permitted Indebtedness) pursuant to Section
4.04; (7) cash payments in lieu of payment of (i) fractional Convertible
Subordinated Notes in lieu of cash interest thereon or (ii) fractional shares of
Common Stock of the Company upon conversion of Convertible Subordinated Notes;
and (8) other Restricted Payments in an aggregate amount not to exceed $2.0
million. In determining the aggregate amount of Restricted Payments made
subsequent to the Issue Date in accordance with clause (4)(iii) of the
immediately preceding paragraph, amounts expended pursuant to clauses (1),
(2)(ii), (4) and (6) above shall be included in such calculation.
Not later than the date of making any Restricted Payment, the Company
shall deliver to the Trustee an Officers' Certificate stating that such
Restricted Payment complies with this Indenture and setting forth in reasonable
detail the basis upon which the required calculations were computed, which
calculations may be based upon the Company's latest available internal quarterly
financial statements.
SECTION 4.04. Limitation on Incurrence of
Additional Indebtedness.
------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume, guarantee,
acquire, become liable, contingently or otherwise, with respect to, or otherwise
become responsible for payment of (collectively, "incur") any Indebtedness
-----
(other than Permitted Indebtedness); provided, however, that if no Default or
-------- -------
Event of Default shall have occurred and be continuing at the time of or as a
consequence of the incurrence of any such Indebtedness, the Company or any of
its Restricted Subsidiaries that is or, upon such incurrence, becomes a
Guarantor may incur Indebtedness (including, without limitation, Acquired
Indebtedness) and any Restricted Subsidiary of the Company that is not and will
not, upon such incurrence, become a Guarantor may incur Acquired Indebtedness,
in each case if on the date of the incurrence of such Indebtedness, after giving
effect to the incurrence thereof, the Consolidated Fixed Charge Coverage Ratio
of the Company is greater than 2.25 to 1.0 if such incur-
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rence is on or prior to November 1, 2000 and 2.5 to 1.0 if such incurrence is
thereafter.
SECTION 4.05. 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 Board of Directors of the
Company shall determine that the loss thereof is not, and will not be, adverse
in any material respect to the Holders.
SECTION 4.06. Payment of Taxes and Other Claims.
---------------------------------
The Company shall 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 Subsidiaries or
upon the income, profits or property of it or any of its Restricted 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
-------- -------
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, (i) the applicability or
validity is being contested in good faith by appropriate proceedings and for
which appropriate provision has been made or (ii) where the failure to effect
such payment or discharge is not adverse in any material respect to the Holders.
SECTION 4.07. 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
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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 4.07 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 is not adverse in any material respect to the Holders; provided,
--------
further, that nothing in this Section 4.07 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 4.08. Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Company shall deliver to the Trustee, within 120 days after
the close of each fiscal year (which on the date hereof is December 31) an
Officers' Certificate stating that a review of the activities of the Company has
been made under the supervision of the signing officers with a view to
determining whether it has kept, observed, performed and fulfilled its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of such Officer's knowledge, the
Company during such preceding fiscal year has kept, observed, performed and
fulfilled each and every such covenant and no Default or Event of Default
occurred dur-
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ing such year and at the date of such certificate there is no
Default or Event of Default that has occurred and is continuing or, if such
signers do know of such Default or Event of 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 annual financial statements delivered pursuant to Section
4.10 shall be accompanied by a written report of the Company's independent
accountants (who shall be a firm of established national reputation) that in
conducting their audit of such financial statements nothing has come to their
attention that would lead them to believe that the Company has violated any
provisions of Article Four, Five or Six of this Indenture insofar as they relate
to accounting matters or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall deliver to the Trustee, forthwith upon becoming
aware of any Default or Event of Default in the performance of any covenant,
agreement or condition contained in this Indenture, an Officers' Certificate
specifying the Default or Event of Default and describing its status with
particularity.
SECTION 4.09. 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
for such noncompliances as would not in the aggregate have a material adverse
effect on the financial condition or results of operations of the Company and
its Subsidiaries taken as a whole.
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SECTION 4.10. Reports to Holders.
------------------
Whether or not required by the rules and regulations of the
Commission, so long as any Securities are outstanding, the Company shall furnish
the Holders of Securities:
(1) all quarterly and annual financial information that would be
required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries (showing in
reasonable detail, either on the face of the financial statements or in the
footnotes thereto, the financial condition and results of operations of the
Company and its Restricted Subsidiaries separate from the financial
condition and results of operations of the Unrestricted Subsidiaries of the
Company, if any) and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants; and
(2) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports,
in each case within two days after the time periods specified in the
Commission's rules and regulations.
In addition, following the consummation of the exchange offer
contemplated by the Registration Rights Agreement, whether or not required by
the rules and regulations of the Commission, the Company will file a copy of all
such information and reports with the Commission for public availability within
the time periods specified in the Commission's rules and regulations (unless the
Commission will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. In addition, for so
long as any Securities remain outstanding, the Company shall furnish to the
Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities
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Act. The Company will also comply with the other provisions of TIA (S) 314(a).
SECTION 4.11. 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 Securities or the 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 4.12. Limitations on Transactions with Affiliates.
-------------------------------------------
(a) The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, enter into or permit to exist any
transaction or series of related transactions (including, without limitation,
the purchase, sale, lease or exchange of any property or the rendering of any
service) with, or for the benefit of, any of its Affiliates (each an "Affiliate
---------
Transaction"), other than (x) Affiliate Transactions permitted under paragraph
- -----------
(b) below and (y) Affiliate Transactions on terms that are no 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 of
the Company or such Restricted Subsidiary. All Affiliate Transactions (and each
series of related Affiliate Transactions which are similar or part of a common
plan) involving aggregate payments or other property with a fair market value in
excess of $3.0 million shall be approved by the Board of Directors of the
Company or such Restricted Subsidiary, as the case may be, such approval to be
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evidenced by a Board Resolution stating that such Board of Directors has
determined that such transaction complies with the foregoing provisions. If the
Company or any Restricted Subsidiary of the Company enters into an Affiliate
Transaction (or a series of related Affiliate Transactions related to a common
plan) that involves an aggregate fair market value of more than $10.0 million,
the Company or such Restricted Subsidiary, as the case may be, shall, prior to
the consummation thereof, obtain a favorable opinion as to the fairness of such
transaction or series of related transactions to the Company or the relevant
Restricted Subsidiary, as the case may be, from a financial point of view, from
an Independent Financial Advisor and file the same with the Trustee.
(b) The restrictions set forth in clause (a) shall not apply to (i)
reasonable fees and compensation paid to and indemnity provided on behalf of,
officers, directors, employees, consultants or investment bankers of the Company
or any Restricted Subsidiary of the Company as determined in good faith by the
Company's Board of Directors or senior management; (ii) transactions exclusively
between or among the Company and any of its Wholly Owned Restricted Subsidiaries
or exclusively between or among such Wholly Owned Restricted Subsidiaries,
provided such transactions are not otherwise prohibited by this Indenture; (iii)
- --------
any agreement as in effect as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any amendment thereto)
or any replacement agreement thereto so long as any such amendment or
replacement agreement is not more disadvantageous to the Holders in any material
respect than the original agreement as in effect on the Issue Date; (iv)
Restricted Payments permitted by this Indenture; (v) transactions in which the
Company or any of its Restricted Subsidiaries, as the case may be, delivers to
the Trustee a letter from an Independent Financial Advisor stating that such
transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view or meets the requirements of the first sentence of this
Section 4.12; (vi) the existence of, or the performance by the Company or any of
its Restricted Subsidiaries of its obligations under the terms of, the
Investors' Rights Agreement, the Securities Purchase Agreement, any
stockholders' agreement (including any registration rights agreement or purchase
agreement related
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thereto) to which it is a party as of the Issue Date and any
similar agreements which it may enter into thereafter; provided, however, that
-------- -------
the existence of, or the performance by the Company or any of its Restricted
Subsidiaries of obligations under, any future amendment to any such existing
agreement or under any similar agreement entered into after the Issue Date shall
only be permitted by this clause (vi) to the extent that the terms of any such
amendment or new agreement are not otherwise disadvantageous to the Holders of
the Securities in any material respect; (vii) the issuance of securities or
other payments, awards or grants, in cash, securities or otherwise, pursuant to,
or the funding of, employment arrangements, stock options and stock ownership
plans approved by the Board of Directors of the Company in good faith and loans
to employees of the Company and its Subsidiaries which are approved by senior
management of the Company in good faith; (viii) the payment of all fees and
expenses related to the Transactions; (ix) transactions with customers, clients,
suppliers, purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms of this
Indenture, which are fair to the Company or its Restricted Subsidiaries, in the
reasonable determination of senior management of the Company, or are on terms at
least as favorable as might reasonably have been obtained at such time from an
unaffiliated party; and (x) transactions reasonably related to (x) the exercise
of rights and remedies with respect to the Convertible Subordinated Notes or (y)
the conversion or exchange of the Convertible Subordinated Notes (each to the
extent not otherwise prohibited in this Indenture).
SECTION 4.13. Limitation on Dividend and Other Payment Restrictions Affecting
Restricted Subsidiaries.
-------------
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or
permit to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary of the Company to (a) pay dividends or make
any other distributions on or in respect of its Capital Stock; (b) make loans or
advances or to pay any Indebtedness or other obligation owed to the Company or
any other Restricted Subsidiary of the Company; or (c) transfer any of its
property or assets to the Company or any other Restricted Subsidi-
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ary of the Company, except, with respect to each of clauses (a), (b) or (c), for
such encumbrances or restrictions existing under or by reason of: (1) applicable
law; (2) this Indenture; (3) customary non-assignment provisions of any contract
or any lease governing a leasehold interest of, or any license held by, any
Restricted Subsidiary of the Company; (4) any instrument governing Acquired
Indebtedness, which encumbrance or restriction is not applicable to any Person,
or the properties or assets of any Person, other than the Person or the
properties or assets of the Person so acquired; (5) the Credit Agreement; (6)
agreements existing on the Issue Date to the extent and in the manner such
agreements are in effect on the Issue Date; (7) an agreement governing
Indebtedness incurred to Refinance the Indebtedness issued, assumed or incurred
pursuant to an agreement referred to in clauses (2), (4), (5) or (6) above and
(8) and (10) below; provided, however, that the provisions relating to such
-------- -------
encumbrance or restriction contained in any such Indebtedness are no less
favorable to the Company in any material respect as determined by the Board of
Directors of the Company or senior management in its reasonable and good faith
judgment than the provisions relating to such encumbrance or restriction
contained in agreements referred to in such clause (2), (4), (5), (6), (8) and
(10); (8) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions of the nature discussed in clause
(c) above on the property so acquired; (9) contracts for the sale of assets,
including without limitation, customary restrictions with respect to a
Restricted Subsidiary of the Company pursuant to an agreement that has been
entered into for the sale or disposition of the Capital Stock or assets of such
Restricted Subsidiary; (10) secured Indebtedness otherwise permitted to be
incurred pursuant to Sections 4.04 and 4.14 that limits the right of the debtor
to dispose of the assets securing such Indebtedness; (11) customary provisions
in joint venture agreements, licenses and leases and other similar agreements
entered into in the ordinary course of business; (12) net worth provisions in
leases and other agreements entered into by the Company or any Restricted
Subsidiary; and (13) an agreement governing Indebtedness (including any Credit
Facilities) permitted to be incurred pursuant to Section 4.04; provided that
--------
provi-
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<PAGE>
sions relating to such encumbrance or restriction contained in such
Indebtedness are no less favorable to the Company in any material respect as
determined by senior management of the Company in its reasonable and good faith
judgment than the provisions contained in the Credit Agreement as in effect on
the Issue Date.
SECTION 4.14. Limitation on Liens.
-------------------
The Company shall not, and shall not cause or permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
permit or suffer to exist any Liens of any kind against or upon any property or
assets of the Company or any of its Restricted Subsidiaries whether owned on the
Issue Date or acquired after the Issue Date, or any proceeds therefrom, or
assign or otherwise convey any right to receive income or profits therefrom
unless (i) in the case of Liens securing Indebtedness that is expressly
subordinate or junior in right of payment to the Securities, the Securities are
secured by a Lien on such property, assets or proceeds that is senior in
priority to such Liens and (ii) in all other cases, the Securities are equally
and ratably secured, except for (A) Liens existing as of the Issue Date to the
extent and in the manner such Liens are in effect on the Issue Date; (B) Liens
securing Senior Debt and Liens securing Guarantor Senior Debt; (C) Liens
securing the Securities and the Guarantees; (D) Liens of the Company or a Wholly
Owned Restricted Subsidiary of the Company on assets of any Restricted
Subsidiary of the Company; (E) Liens securing Refinancing Indebtedness which is
incurred to Refinance any Indebtedness which has been secured by a Lien
permitted under this Indenture and which has been incurred in accordance with
the provisions of this Indenture; provided, however, that such Liens (x) are no
-------- -------
less favorable to the Holders and are not more favorable to the lienholders with
respect to such Liens than the Liens in respect of the Indebtedness being
Refinanced and (y) do not extend to or cover any property or assets of the
Company or any of its Restricted Subsidiaries not securing the Indebtedness so
Refinanced; and (F) Permitted Liens.
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SECTION 4.15. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control, the Company shall be
obligated to make an offer to purchase (the "Change of Control Offer"), and
-----------------------
shall purchase, on a Business Day (the "Change of Control Payment Date") as
------------------------------
described below, all of the then outstanding Securities at a purchase price
equal to 101% of the principal amount thereof, plus accrued and unpaid interest,
if any, thereon to the Change of Control Payment Date. The Change of Control
Offer shall remain open for at least 20 Business Days and until the close of
business on the Change of Control Payment Date.
(b) Prior to the mailing of the notice referred to below, but in any
event within 30 days following any Change of Control, the Company covenants to
(i) repay in full and terminate all commitments under Indebtedness under the
Credit Agreement and all other Senior Debt the terms of which require repayment
upon a Change of Control or offer to repay in full and terminate all commitments
under all Indebtedness under the Credit Agreement and all other such Senior Debt
and to repay the Indebtedness owed to each lender which has accepted such offer
or (ii) obtain the requisite consents under the Credit Agreement and all other
Senior Debt to permit the repurchase of the Securities as provided below. The
Company shall first comply with the covenant in the immediately preceding
sentence before it shall be required to repurchase Securities pursuant to the
provisions described below. The Company's failure to comply with the covenant
described in the second preceding sentence (and any failure to send the notice
referred to in clause (c) below because same is prohibited by the second
preceding sentence) may (with notice and lapse of time) constitute an Event of
Default described in clause (c) of Section 6.01 but shall not constitute an
Event of Default described in clause (b) of Section 6.01.
(c) Within 30 days following the date upon which a Change of Control
occurs (the "Change of Control Date"), the Company shall send, by first class
----------------------
mail, a notice to each Holder, with a copy to the Trustee, which notice shall
govern the terms of the Change of Control Offer. The notice to the Holders
shall contain all instructions and materials necessary
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to enable such Holders to tender Securities pursuant to the Change of Control
Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant to this
Section 4.15 and that all Securities tendered and not withdrawn will be
accepted for payment;
(2) the purchase price (including the amount of accrued interest)
and the Change of Control Payment Date, which shall be a Business Day, that
is not earlier than 30 days or later than 60 days from the date such notice
is mailed;
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor,
any Security 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 Security purchased pursuant to
a Change of Control Offer will be required to surrender the Security, with
the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security 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, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Securities the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security purchased;
(7) that Holders whose Securities are purchased only in part will
be issued new Securities in a principal amount equal to the unpurchased
portion of the Securities surrendered; and
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(8) the circumstances and relevant facts regarding such Change of
Control.
On or before the Change of Control Payment Date, the Company shall (i)
accept for payment Securities or portions thereof tendered pursuant to the
Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price plus accrued interest, if any, of all
Securities so tendered and (iii) deliver to the Trustee Securities so accepted
together with an Officers' Certificate stating the Securities or portions
thereof being purchased by the Company. The Paying Agent shall promptly mail to
the Holders of Securities so accepted payment in an amount equal to the purchase
price plus accrued interest, if any, and upon written order of the Company the
Trustee shall promptly authenticate and mail to such Holders new Securities
equal in principal amount to any unpurchased portion of the Securities
surrendered. Any Securities not so accepted shall be promptly mailed by the
Company to the Holder thereof. For purposes of this Section 4.15, the Trustee
shall act as the Paying Agent.
Any amounts remaining with the Paying Agent after the purchase of
Securities pursuant to a Change of Control Offer shall be returned by the
Trustee to the Company.
The Company shall 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 the
repurchase of Securities pursuant to a Change of Control Offer. To the extent
the provisions of any securities laws or regulations conflict with the
provisions of this Section 4.15, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have breached its
obligations under this Section 4.15 by virtue thereof.
SECTION 4.16. Limitation on Asset Sales.
-------------------------
The Company shall not, and shall not permit any of its Restricted
Subsidiaries to, consummate an Asset Sale unless (i) the Company or the
applicable Restricted Subsidiary, as the case may be, receives consideration at
the time of such Asset Sale at least equal to the fair market value of the
assets sold
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or otherwise disposed of (as determined in good faith by senior management or,
in the case of an Asset Sale in excess of $5 million, by the Company's Board of
Directors); (ii) at least 75% of the consideration received by the Company or
the Restricted Subsidiary, as the case may be, from such Asset Sale shall be in
the form of cash or Cash Equivalents and is received at the time of such
disposition; provided that the amount of (a) any liabilities (as shown on the
Company's or such Restricted Subsidiary's most recent balance sheet) of the
Company or any Restricted Subsidiary (other than liabilities that are by their
terms subordinated to the Securities) that are assumed by the transferee of any
such assets, and (b) any notes or other obligations received by the Company or
any such Restricted Subsidiary from such transferee that are converted by the
Company or such Restricted Subsidiary into cash within 180 days after such Asset
Sale (to the extent of the cash received) shall be deemed to be cash for the
purposes of this provision; and (iii) upon the consummation of an Asset Sale,
the Company shall apply, or cause such Restricted Subsidiary to apply, the Net
Cash Proceeds relating to such Asset Sale within 360 days of receipt thereof
either (A) to prepay any Senior Debt or Guarantor Senior Debt and, in the case
of any Senior Debt or Guarantor Senior Debt under any revolving credit facility,
effect a permanent reduction in the availability under such revolving credit
facility, (B) to make an Investment in properties and assets that replace the
properties and assets that were the subject of such Asset Sale or in properties
and assets that will be used in the business of the Company and its Restricted
Subsidiaries as existing on the Issue Date or in businesses reasonably related,
complementary or ancillary thereto or a reasonable expansion thereof
("Replacement Assets"), and/or (C) a combination of prepayment and
investment permitted by the foregoing clauses (iii)(A) and (iii)(B). On the
361st day after an Asset Sale or such earlier date, if any, as the senior
management or Board of Directors, as the case may be, of the Company or of such
Restricted Subsidiary determines not to apply the Net Cash Proceeds relating to
such Asset Sale as set forth in clauses (iii)(A), (iii)(B) and (iii)(C) of the
next preceding sentence (each, a "Net Proceeds Offer Trigger Date"), such
aggregate amount of Net Cash Proceeds which have not been applied on or before
such Net Proceeds Offer Trigger Date as permitted in clauses (iii)(A), (iii)(B)
and (iii)(C) of the next preceding sentence (each a "Net Proceeds Offer Amount")
-------------------------
shall be applied by the Company or such Restricted Subsidiary to make an offer
to purchase (the "Net Proceeds Offer") on a date (the "Net Proceeds Offer
------------------ ------------------
Payment Date") not less than 30 nor more than 60 days following the applicable
- ------------
Net
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<PAGE>
Proceeds Offer Trigger Date, from all Holders on a pro rata basis, that
amount of Securities equal to the Net Proceeds Offer Amount at a price equal to
100% of the principal amount of the Securities to be purchased, plus accrued and
unpaid interest thereon, if any, to the date of purchase; provided, however,
-------- -------
that if at any time any non-cash consideration received by the Company or any
Restricted Subsidiary of the Company, as the case may be, in connection with any
Asset Sale is converted into or sold or otherwise disposed of for cash (other
than interest received with respect to any such non-cash consideration), then
such conversion or disposition shall be deemed to constitute an Asset Sale
hereunder and the Net Cash Proceeds thereof shall be applied in accordance with
this Section 4.16. The Company may defer the Net Proceeds Offer until there is
an aggregate unutilized Net Proceeds Offer Amount equal to or in excess of $10.0
million resulting from one or more Asset Sales (at which time, the entire
unutilized Net Proceeds Offer Amount, and not just the amount in excess of $10.0
million, shall be applied as required pursuant to this paragraph).
In the event of the transfer of substantially all (but not all) of the
property and assets of the Company and its Restricted Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01, which
transaction does not constitute a Change of Control, the successor corporation
shall be deemed to have sold the properties and assets of the Company and its
Restricted Subsidiaries not so transferred for purposes of this Section 4.16,
and shall comply with the provisions of this Section 4.16 with respect to such
deemed sale as if it were an Asset Sale. In addition, the fair market value of
such properties and assets of the Company or its Restricted Subsidiaries deemed
to be sold shall be deemed to be Net Cash Proceeds for purposes of this Section
4.16.
Notwithstanding the first two paragraphs of this Section 4.16, the
Company and its Restricted Subsidiaries will be permitted to consummate an Asset
Sale without complying with such paragraphs to the extent that:
(1) at least 75% of the consideration for such Asset Sale constitutes
Replacement Assets; and
(2) such Asset Sale is for fair market value;
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provided that any consideration not constituting Replacement Assets received by
- --------
the Company or any of its Restricted Subsidiaries in connection with any Asset
Sale permitted to be consummated under this paragraph shall constitute Net Cash
Proceeds subject to the provisions of the first two paragraphs of this Section
4.16.
Notice of each Net Proceeds Offer pursuant to this Section 4.16 shall
be mailed or caused to be mailed, by first class mail, by the Company within 30
days following the applicable Net Proceeds Offer Trigger Date to all Holders at
their last registered addresses, with a copy to the Trustee. A Net Proceeds
Offer shall remain open for a period of 20 Business Days or such longer period
as may be required by law. The notice shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Net Proceeds Offer and shall state the following terms:
(1) that the Net Proceeds Offer is being made pursuant to this
Section 4.16 and that all Securities tendered will be accepted for payment;
provided, however, that if the principal amount of Securities tendered in
-------- -------
the Net Proceeds Offer exceeds the aggregate amount of Net Proceeds Offer
Amount, the Company shall select the Securities to be purchased on a pro
rata basis;
(2) the purchase price (including the amount of accrued interest,
if any) and the purchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed, other than as may
be required by applicable law);
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Net Proceeds Offer shall
cease to accrue interest after the Net Proceeds Offer Payment Date;
(5) that Holders electing to have a Security purchased pursuant to
the Net Proceeds Offer will be required
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to surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to the Paying
Agent at the address specified in the notice prior to the close of business
on the Net Proceeds Offer 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
Net Proceeds Offer Payment Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal amount of the Security the
Holder delivered for purchase and a statement that such Holder is
withdrawing his election to have such Security purchased; and
(7) that Holders whose Securities are purchased only in part will
be issued new Securities in a principal amount at maturity equal to the
unpurchased portion of the Securities surrendered.
On or before the Net Proceeds Offer Payment Date, the Company shall
(i) accept for payment Securities or portions thereof tendered pursuant to the
Net Proceeds Offer, (ii) deposit with the Paying Agent U.S. Legal Tender
sufficient to pay the purchase price, plus accrued interest, if any, of all
Securities to be purchased and (iii) deliver to the Trustee Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to the Holders of Securities so accepted payment in an amount
equal to the purchase price, plus accrued interest, if any, thereon set forth in
the notice of such Net Proceeds Offer. Any Security not so accepted shall be
promptly mailed by the Company to the Holder thereof. For purposes of this
Section 4.16, the Trustee shall act as the Paying Agent. Any amounts remaining
after the purchase of Securities pursuant to a Net Proceeds Offer shall be
returned by the Trustee to the Company.
The Company will comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations thereunder to the
extent such laws and regulations are applicable in connection with the
repurchase of Securities
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pursuant to a Net Proceeds Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Section
4.16, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.16 by virtue thereof.
SECTION 4.17. Prohibition on Incurrence of Senior Subordinated Debt.
-------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
that is a Guarantor to, incur or suffer to exist Indebtedness that is senior in
right of payment to the Securities or such Guarantor's Guarantee, as the case
may be, and subordinate in right of payment to any other Indebtedness of the
Company or such Guarantor, as the case may be.
SECTION 4.18. Additional Subsidiary Guarantees.
--------------------------------
If the Company or any of its Restricted Subsidiaries transfers or
causes to be transferred, in one transaction or a series of related
transactions, any property to any Domestic Restricted Subsidiary that is not a
Guarantor, or if the Company or any of its Restricted Subsidiaries shall
organize, acquire or otherwise invest in another Domestic Restricted Subsidiary
having total assets with a book value in excess of $1 million, then such
transferee or acquired or other Restricted Subsidiary shall (i) execute and
deliver to the Trustee a supplemental indenture pursuant to which such
Restricted Subsidiary shall unconditionally guarantee all of the Company's
obligations under the Securities and this Indenture on the terms set forth in
this Indenture and (ii) deliver to the Trustee an Opinion of Counsel that such
supplemental indenture has been duly authorized, executed and delivered by such
Restricted Subsidiary and constitutes a legal, valid, binding and enforceable
obligation of such Restricted Subsidiary. Thereafter, such Restricted
Subsidiary shall be a Guarantor for all purposes of this Indenture.
SECTION 4.19. Conduct of Business.
-------------------
The Company and its Restricted Subsidiaries shall not engage in any
businesses which are not substantially related, ancillary or complementary to
the businesses in which the Com-
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pany and its Restricted Subsidiaries are engaged on the Issue Date or a
reasonable expansion thereof.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. Merger, Consolidation and Sale of Assets.
----------------------------------------
(a) The Company shall not, in a single transaction or series of
related transactions, consolidate or merge with or into any Person, or sell,
assign, transfer, lease, convey or otherwise dispose of (or cause or permit any
Restricted Subsidiary of the Company to sell, assign, transfer, lease, convey or
otherwise dispose of) all or substantially all of the Company's assets
(determined on a consolidated basis for the Company and the Company's Restricted
Subsidiaries) whether as an entirety or substantially as an entirety to any
Person unless: (i) either (1) the Company shall be the surviving or continuing
corporation or (2) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale, assignment, transfer, lease, conveyance or other disposition the
properties and assets of the Company and of the Company's Restricted
Subsidiaries substantially as an entirety (the "Surviving Entity"); (x) shall be
----------------
a corporation, partnership, trust or a limited liability company organized and
validly existing under the laws of the United States or any State thereof or the
District of Columbia and (y) shall expressly assume, by supplemental indenture,
executed and delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest on all of the Securities and the
performance of every covenant of the Securities, this Indenture and the
Registration Rights Agreement on the part of the Company to be performed or
observed; provided that if at any time the Company or the Surviving Entity is a
--------
limited liability company, partnership or trust, there shall be a co-issuer of
the Securities that is a Restricted Subsidiary of the Company and that is a
corporation organized and existing under the laws of the United States or any
State thereof or
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<PAGE>
the District of Columbia; (ii) immediately after giving effect to such
transaction and the assumption contemplated by clause (i)(2)(y) above (including
giving effect to any Indebtedness and Acquired Indebtedness incurred or
anticipated to be incurred in connection with or in respect of such
transaction), the Company or such Surviving Entity, as the case may be shall be
able to incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 4.04; (iii) immediately before and immediately
after giving effect to such transaction and the assumption contemplated by
clause (i)(2)(y) above (including, without limitation, giving effect to any
Indebtedness and Acquired Indebtedness incurred or anticipated to be incurred
and any Lien granted in connection with or in respect of the transaction), no
Default or Event of Default shall have occurred or be continuing; and (iv) the
Company or the Surviving Entity shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, transfer, lease, conveyance or other disposition and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with the applicable provisions of this
Indenture and that all conditions precedent in this Indenture relating to such
transaction have been satisfied. Notwithstanding the foregoing, the merger of
the Company with an Affiliate incorporated solely for the purpose of
reincorporating the Company in another jurisdiction shall be permitted.
(b) For purposes of the foregoing paragraph (a), the transfer (by
lease, assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted Subsidiaries of the Company the Capital Stock of which
constitutes all or substantially all of the properties and assets of the
Company, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company.
(c) Each Guarantor (other than any Guarantor whose Guarantee is to be
released in accordance with the terms of the Guarantee and this Indenture in
connection with any transaction complying with the provisions of Section 4.16)
shall not, and the Company shall not cause or permit any Guarantor to,
con-
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solidate with or merge with or into any Person other than the Company or any
other Guarantor unless: (i) the entity formed by or surviving any such
consolidation or merger (if other than the Guarantor) is a corporation,
partnership, trust or limited liability company organized and existing under the
laws of the United States or any State thereof or the District of Columbia; (ii)
such entity assumes by supplemental indenture all of the obligations of the
Guarantor on the Guarantee; (iii) immediately after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and (iv) immediately after giving effect to such transaction and the
use of any net proceeds therefrom on a pro forma basis, the Company could
--- -----
satisfy the provisions of clause (a) (ii) of this Section 5.01. Any merger or
consolidation of a Guarantor with and into the Company (with the Company being
the surviving entity) or another Guarantor that is a Wholly Owned Restricted
Subsidiary of the Company need only comply with clause (a) (iv) of Section 5.01.
SECTION 5.02. Successor Corporation Substituted.
---------------------------------
Upon any consolidation, combination or merger or any transfer of all
or substantially all of the assets of the Company in accordance with Section
5.01 in which the Company is not the continuing corporation, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, lease or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Securities with the same effect as if such Surviving
Entity had been named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
-----------------
Each of the following shall be an "Event of Default":
----------------
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(a) the failure to pay interest on any Securities when the same
becomes due and payable and the default continues for a period of 30 days
(whether or not such payment shall be prohibited by Article Ten or Article
Twelve of this Indenture);
(b) the failure to pay the principal on any Securities, when such
principal becomes due and payable, at maturity, upon redemption or
otherwise (including the failure to make a payment to purchase Securities
tendered pursuant to a Change of Control Offer or a Net Proceeds Offer on
the date specified for such payment in the applicable offer to purchase)
(whether or not such payment shall be prohibited by Article Ten or Article
Twelve of this Indenture);
(c) a default in the observance or performance of any other covenant
or agreement contained in this Indenture, which default continues for a
period of 30 days after the Company receives written notice specifying the
default (and demanding that such default be remedied) from the Trustee or
the Holders of at least 25% of the outstanding principal amount of the
Securities;
(d) the failure to pay at final maturity (giving effect to any
applicable grace periods and any extensions thereof) the principal amount
of any Indebtedness of the Company or any Significant Subsidiary of the
Company which failure continues for at least 20 days, or the acceleration
of the final stated maturity of any such Indebtedness (which acceleration
is not rescinded, annulled or otherwise cured within 20 days of receipt by
the Company or such Significant Subsidiary of notice of any such
acceleration) if the aggregate principal amount of such Indebtedness,
together with the principal amount of any other such Indebtedness in
default for failure to pay principal at final maturity or which has been
accelerated (in each case with respect to which the 20-day period described
above has passed), aggregates $10.0 million or more at any time;
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(e) one or more judgments in an aggregate amount in excess of $10.0
million (exclusive of amounts covered by insurance) shall have been
rendered against the Company or any of its Significant Subsidiaries and
such judgments remain undischarged, unpaid or unstayed for a period of 60
days after such judgment or judgments become final and non-appealable;
(f) the Company or any of its Significant Subsidiaries (i) commences
a voluntary case or proceeding under any Bankruptcy Law with respect to
itself, (ii) consents to the entry of a judgment, decree or order for
relief against it in an involuntary case or proceeding under any Bankruptcy
Law, (iii) consents to the appointment of a custodian of it or for
substantially all of its property, (iv) consents to or acquiesces in the
institution of a bankruptcy or an insolvency proceeding against it, (v)
makes a general assignment for the benefit of its creditors or (vi) takes
any corporate action to authorize or effect any of the foregoing;
(g) a court of competent jurisdiction enters a judgment, decree or
order for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any Bankruptcy Law,
which shall (i) approve as properly filed a petition seeking
reorganization, arrangement, adjustment or composition in respect of the
Company or any of its Significant Subsidiaries, (ii) appoint a Custodian of
the Company or any of its Significant Subsidiaries or for substantially all
of any of its property or (iii) order the winding-up or liquidation of its
affairs; and such judgment, decree or order shall remain unstayed and in
effect for a period of 60 consecutive days; or
(h) any Guarantee of a Significant Subsidiary ceases to be in full
force and effect or any Guarantee of a Significant Subsidiary is declared
to be null and void and unenforceable or any Guarantee of a Significant
Subsidiary is found to be invalid or any Guarantor that is a Significant
Subsidiary denies its liability under its Guarantee
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(other than by reason of release of a Guarantor in accordance with the
terms of this Indenture).
SECTION 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default specified in
either clause (f) or (g) of Section 6.01 above with respect to the Company)
shall occur and be continuing, the Trustee or the Holders of at least 25% in
principal amount of outstanding Securities may declare the principal of and
accrued interest on all the Securities to be due and payable by notice in
writing to the Company (and the Trustee if given by the Holders) specifying the
respective Event of Default and that it is a "notice of acceleration" (the
"Acceleration Notice"), and the same (i) shall become immediately due and
- --------------------
payable or (ii) if there are any amounts outstanding under the Credit Agreement,
shall become immediately due and payable upon the first to occur of an
acceleration under the Credit Agreement or 5 business days after receipt by the
Company and the Representative under the Credit Agreement of such Acceleration
Notice but only if such Event of Default is then continuing. If an Event of
Default specified in either clause (f) or (g) of Section 6.01 above with respect
to the Company occurs and is continuing, then all unpaid principal of, and
premium, if any, and accrued and unpaid interest on all of the outstanding
Securities shall ipso facto become and be immediately due and payable without
---- -----
any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration with respect to the
Securities as described in the preceding paragraph, the Holders of a majority in
principal amount of the Securities may rescind and cancel such declaration and
its consequences (i) if the rescission would not conflict with any judgment or
decree, (ii) if all existing Events of Default have been cured or waived except
nonpayment of principal or interest that has become due solely because of the
acceleration, (iii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such declaration of acceleration, has been paid,
(iv) if the Company has paid the Trustee its reasonable compensation and
reimbursed the Trustee
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for its expenses, disbursements and advances and (v) in the event of the cure or
waiver of an Event of Default of the type described in either clause (f) or (g)
of Section 6.01, the Trustee shall have received an Officers' Certificate and an
Opinion of Counsel that such Event of Default has been cured or waived. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 6.04. Waiver of Past Defaults.
-----------------------
Subject to Sections 2.09, 6.07 and 9.02, the Holders of not less than
a majority in principal amount of the outstanding Securities by notice to the
Trustee may waive an existing Default or Event of Default and its consequences,
except a Default in the payment of principal of or interest on any Security as
specified in clauses (a) and (b) of Section 6.01. 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 or Event of Default is waived, it is cured and ceases.
SECTION 6.05. Control by Majority.
-------------------
The Holders of not less than a majority in principal amount of the
outstanding Securities may direct the time,
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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 Securityholder, or that may involve the
Trustee in personal liability; provided 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
satisfactory to it in its sole discretion against any loss or expense caused by
taking such action or following such direction.
SECTION 6.06. Limitation on Suits.
-------------------
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities 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 Securities make a written request to the Trustee to pursue
the remedy;
(3) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request within 45 days
after receipt of the request and the offer and, if requested, the provision
of indemnity; and
(5) during such 45-day period the Holder or Holders of a majority
in principal amount of the outstanding Securities do not give the Trustee a
direction which, in the opinion of the Trustee, is inconsistent with the
request.
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A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
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 of and interest on a Security, on or
after the respective due dates expressed in such Security, or to bring suit for
the enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal or interest specified
in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities 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 Securities 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
Securityholders 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
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hereby authorized by each Securityholder 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 Securityholders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agent and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
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 Securities, ratably,
without preference or priority of any kind, according to the amounts due
and payable on the Securities for interest;
Third: to Holders for principal amounts due and unpaid on the
Securities, ratably, without preference or priority of any kind, according
to the amounts due and payable on the Securities for principal; 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 Securityholders pursuant to this Section
6.10.
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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, 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 Securities.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in 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 or an Event of
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'
Certifi-
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cates) or opinions (including Opinions of Counsel) furnished to the
Trustee and conforming to the requirements of this Indenture. However, 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 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) 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) In the absence of bad faith, negligence or willful misconduct on
the part of the Trustee, the Trustee shall
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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 on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate and an Opinion of Counsel, which shall conform to
the provisions of Section 13.05. 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 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 against the costs, expenses and liabilities which may
be incurred therein or thereby.
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<PAGE>
(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.
(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.
SECTION 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities 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 Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, 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 Securities or any statement
in the Securities other than the Trustee's certificate of authentication. The
Trustee makes no
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representations with respect to the effectiveness or adequacy of this Indenture.
SECTION 7.05. Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and the
Trustee receives actual notice of such Default or Event of Default, the Trustee
shall mail to each Securityholder notice of the uncured Default or Event of
Default within 60 days after such Default or Event of Default occurs. Except in
the case of a Default or an Event of Default in payment of principal of, or
interest on, any Security, 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 Net Proceeds Offer Payment Date pursuant to a Net Proceeds
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 Securityholders.
SECTION 7.06. Reports by Trustee to Holders.
-----------------------------
Within 60 days after each May 15, beginning with the first May 15
following the date of this Indenture, 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 Securityholder 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).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the Commission and each securities
exchange, if any, on which the Securities are listed.
The Company shall notify the Trustee if the Securities become listed
on any securities exchange or of any delisting thereof and the Trustee shall
comply with TIA (S) 313(d).
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<PAGE>
SECTION 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation 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 the Trustee and its agents, employees,
officers, stockholders and directors for, and hold them harmless against, any
loss, 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, 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, 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 in-
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demnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a senior claim prior to the Securities 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 shall not be
subordinated to the payment of Senior Debt pursuant to Article Ten or Article
Twelve except assets or money held in trust to pay principal of or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clause (f) or (g) of Section 6.01 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
the 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
Securities 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.
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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 Securities 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
Securityholder.
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 Securities may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
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
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such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee; provided 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 $50,000,000 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 Securities.
SECTION 7.11. Preferential Collection of Claims
Against 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.
ARTICLE EIGHT
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Termination of the Company's Obligations.
----------------------------------------
The Company may terminate its obligations under the Securities and
this Indenture, except those obligations re-
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ferred to in the penultimate paragraph of this Section 8.01, if all Securities
previously authenticated and delivered (other than destroyed, lost or stolen
Securities which have been replaced or paid or Securities for whose payment U.S.
Legal Tender has theretofore been deposited with the Trustee or the Paying Agent
in trust or segregated and held in trust by the Company and thereafter repaid to
the Company, as provided in Section 8.05) 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 Securities in accordance with the
provisions hereof or (ii) all Securities have otherwise become due and
payable hereunder;
(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 in such amount as is
sufficient without consideration of reinvestment of such interest, to pay
principal of, premium, if any, and interest on the outstanding Securities
to maturity or redemption; provided that the Trustee shall have been
--------
irrevocably instructed to apply such U.S. Legal Tender to the payment of
said principal, premium, if any, and interest with respect to the
Securities and provided, further, that from and after the time of deposit,
-------- -------
the money deposited shall not be subject to the rights of holders of Senior
Debt or Guarantor Senior Debt pursuant to the provisions of Article Ten or
Twelve, as the case may be;
(c) no Default or Event of Default with respect to this Indenture or
the Securities shall have occurred and be continuing on the date of such
deposit or shall occur as a result of such deposit and such deposit will
not result in a breach or violation of, or constitute a default under, the
Indenture, the Credit Agreement, any other ma-
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terial 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
(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 Securities 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 Credit Agreement 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 Securities are no longer
outstanding pursuant to the last paragraph of Section 2.08. After the
Securities 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 Securities 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 Securities 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 Securities on
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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 Securities, 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 Securities and this Indenture (and the Trustee, on demand
of and at the expense of the Company, shall execute proper instruments
acknowledging the same), and Holders of the Securities and any amounts deposited
under Section 8.03 hereof shall cease to be subject to any obligations to, or
the rights of, any holder of Senior Debt under Article Ten or otherwise, except
for the following provisions, which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of outstanding Securities to
receive solely from the trust fund described in Section 8.04 hereof, and as more
fully set forth in such Section, payments in respect of the principal of
premium, if any, and interest on such Securities when such payments are due,
(ii) the Company's obligations with respect to such Securities under Article Two
and Section 4.02 hereof, (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 paragraph (b) notwithstanding the
prior exercise of its option under paragraph (c) hereof.
(c) Upon the Company's exercise under paragraph (a) hereof of the
option applicable to this paragraph (c), the Company shall, subject to the
satisfaction of the conditions set forth in Section 8.03 hereof, be released
from its obligations under the covenants contained in Sections 4.03, 4.04 and
Sections 4.12 through 4.19 and Article Five hereof with respect to the
outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall
-------------------
thereafter be deemed not "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
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hereunder (it being understood that such Securities shall not be deemed
outstanding for accounting purposes) and Holders of the Securities and any
amounts deposited under Section 8.03 hereof shall cease to be subject to any
obligations to, or the rights of, any holder of Senior Debt under Article Ten or
otherwise. For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Securities, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01(c) hereof, but, except as specified above, the remainder of this
Indenture and such Securities 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, Sections 6.01(c), 6.01(d) and 6.01(e) 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 Securities:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, U.S. Legal Tender or U.S. Government
Obligations or a combination thereof which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms,
will provide, not later than one day before the due date of any payment on
the Securities, U.S. Legal Tender 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
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interest on the Securities on the stated date for payment thereof or on the
applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02(b) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that (A) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (B) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of such Legal Defeasance and will be
subject to federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.02(c) hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in the
United States reasonably acceptable to the Trustee confirming that the
Holders of the Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Covenant
Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of
Default resulting from the incurrence of Indebtedness all or a portion of
the proceeds of which will be used to defease the Securities pursuant to
this Article Eight concurrently with such incurrence) or insofar as
Sections 6.01(f) and 6.01(g) hereof are concerned, at any time in the
period ending on the 91st day after the date of such deposit;
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(e) such Legal Defeasance or Covenant Defeasance shall 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 the Company or
any of its Subsidiaries is bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over any other creditors of the Company or
with the intent of defeating, hindering, delaying or defrauding any other
creditors of the Company or others;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with; and
(h) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that (i) the trust funds will not be subject to any
rights of any holders of Senior Debt, including, without limitation, those
arising under this Indenture, and (ii) assuming no intervening bankruptcy
or insolvency of the Company between the date of deposit and the 91st day
following the deposit and that no Holder is an insider of the Company,
after the 91st day following the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Law.
Notwithstanding the foregoing, the Opinion of Counsel required by
clause (b) above of this Section 8.03 with respect to a Legal Defeasance need
not be delivered if all Securities not theretofore delivered to the Trustee for
cancellation (i) have become due and payable or (ii) will become due and payable
on the Maturity Date within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
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SECTION 8.04. Application of Trust Money.
--------------------------
The Trustee or Paying Agent shall hold in trust U.S. Legal Tender or
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 Securities. The Trustee shall be under no
obligation to invest said U.S. Legal Tender or U.S. Government Obligations
except as it may agree 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 or U.S.
Government Obligations deposited pursuant to Section 8.03 hereof 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 Securities.
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 or U.S. Government Obligations held by it as
provided in Section 8.03 hereof 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 or 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 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 newspa-
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per 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.
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
Securities 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 or U.S. Government Obligations in
accordance with this Article Eight; provided that if the Company has made any
--------
payment of interest on or principal of any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the U.S. Legal
Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.
--------------------------
Subject to Section 9.03, the Company, the Guarantors and the Trustee,
together, may amend or supplement this Indenture, the Securities or the
Guarantees without notice to or consent of any Securityholder:
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(1) to cure any ambiguity, defect or inconsistency;
(2) to evidence the succession in accordance with Article Five
hereof of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to make any other change that does not adversely affect the
rights of any Securityholders hereunder in any material respect;
(5) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the TIA; or
(6) to add or release any Guarantor pursuant to the terms of this
Indenture;
provided that the Company has delivered to the Trustee an Opinion of Counsel and
- --------
an Officers' Certificate, each stating that such amendment or supplement
complies with the provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
-----------------------
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 at least
a majority in aggregate principal amount of the outstanding Securities, may
amend or supplement this Indenture, the Securities or the Guarantees, without
notice to any other Securityholders. Subject to Sections 6.07 and 9.03, the
Holder or Holders of a majority in aggregate principal amount of the outstanding
Securities may waive compliance by the Company with any provision of this
Indenture, the Securities or the Guarantees without notice to any other
Securityholder. Without the consent of each Securityholder affected, however,
no amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may:
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(1) reduce the amount of Securities whose Holders must consent to
an amendment, supplement or waiver;
(2) reduce the rate of or change or have the effect of changing the
time for payment of interest, including default interest, on any
Securities;
(3) reduce the principal of or change or have the effect of
changing the fixed maturity of any Securities, or change the date on which
any Securities may be subject to redemption or repurchase, or reduce the
redemption or purchase price therefor;
(4) make any Securities payable in money other than that stated in
the Securities;
(5) make any change in provisions of this Indenture protecting the
right of each Holder to receive payment of principal of and interest on
such Security on or after the due date thereof or to bring suit to enforce
such payment, or permitting Holders of a majority in principal amount of
the Securities to waive Defaults or Events of Default;
(6) modify or change any provision of this Indenture or the related
definitions affecting the subordination or ranking of the Securities or any
Guarantee, in a manner which adversely affects the Holders;
(7) after the Company's obligation to purchase Securities arises
thereunder, amend, modify or change in any material respect the obligation
of the Company to make and consummate a Change of Control Offer in the
event of a Change of Control or make and consummate a Net Proceeds Offer
with respect to any Asset Sale that has been consummated, or modify any of
the provisions or definitions with respect thereto; or
(8) release any Guarantor that is a Significant Subsidiary from any
of its obligations under its Guarantee or this Indenture otherwise than in
accordance with the terms of this Indenture.
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<PAGE>
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall mail to the Holders 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 supplemental indenture.
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 or Guarantor Senior
Debt under Article Ten or Article Twelve, as the case may be, of this Indenture,
without the consent of such holder.
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 Securities or the
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 Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security 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 Securities have consented (and not theretofore revoked such consent)
to the amendment, supplement or waiver.
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<PAGE>
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 which record date shall be at least 30 days prior to the
first solicitation of such consent. 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.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (9) of Section 9.02, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
--------
shall not impair or affect the right of any Holder to receive payment of
principal of and interest on a Security, on or after the respective due dates
expressed in such Security, 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 Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Company may require the Holder of the Security to deliver it to the Trustee.
The Company shall provide the Trustee with an appropriate notation on the
Security 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 Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or issue a new Security shall not
affect the validity and effect of such amendment, supplement or waiver.
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SECTION 9.07. Trustee To Sign Amendments, Etc.
-------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article Nine; provided 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.
ARTICLE TEN
SUBORDINATION OF SECURITIES
SECTION 10.01. Securities 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
Securities, agrees that the payment of all Obligations owing to the Holders in
respect of the Securities 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 on Senior Debt (including the
Obligations with respect to the Credit Agreement). Notwithstanding the
foregoing, payments and distributions made relating to the Notes pursuant to the
trust described under Article Eight shall not, so long as 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 or Guarantor Senior Debt) are
satisfied on
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the date of any deposit pursuant to said trust, be so subordinated
in right of payment.
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 regularly accruing fees with respect to, any Senior Debt (a
"Payment Default"), then no payment or distribution of any kind or character
- ----------------
shall be made by or on behalf of the Company or any other Person on its or their
behalf with respect to any Obligations on or relating to the Securities or to
acquire any of the Securities for cash or property or otherwise.
(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 event of default to the Trustee stating that such notice is
a payment blockage notice (a "Payment Blockage Notice"), then, unless and until
-----------------------
all events of default have been cured or waived or have ceased to exist or the
Trustee receives notice thereof from the Representative for the respective issue
of Designated Senior Debt terminating the Payment Blockage Period (as defined
below), during the 180 days after the delivery of such Payment Blockage Notice
(the "Payment Blockage Period"), neither the Company nor any other Person on its
-----------------------
behalf shall (x) make any payment of any kind or character with respect to any
Obligations on or with
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respect to the Securities or (y) acquire any of the Securities for cash or
property or otherwise. Notwithstanding anything herein to the contrary, (x) in
no event will a Payment Blockage Period extend beyond 180 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 event of 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 event of 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 commencing after
the date of commencement of such Payment Blockage Period that, in either case,
would give rise to an event of default pursuant to any provisions under which an
event of default previously existed or was continuing shall constitute a new
event of default for this purpose).
(c) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by 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 then due and owing on the Senior Debt, if any,
received from the holders of Senior Debt (or their Representatives) or, if such
information is not received from such holders or their Representatives, from the
Company and only amounts included in the information provided to the Trustee
shall be paid to the holders of Senior Debt.
Nothing contained in this Article Ten shall limit the right of the
Trustee or the Holders of Securities to take any action to accelerate the
maturity of the Securities pursuant to
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Section 6.02 or to pursue any rights or remedies hereunder; provided 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 Securities.
SECTION 10.03. Securities Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization of Company.
-----------------------------
(a) Upon any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to creditors upon
any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of the Company
or in a bankruptcy, reorganization, insolvency, receivership or other similar
proceeding relating to the Company or its property, whether voluntary or
involuntary, all Obligations due or to become due upon all 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 Securities, or for the acquisition of any of the Securities
for cash or property or otherwise. 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,
property or securities, to which the Holders of the Securities 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
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<PAGE>
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.
(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,
property 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 corporation, partnership, trust or limited
liability company or the liquidation or dissolution of the Company following the
conveyance or transfer of all or substantially all of its assets, to another
corporation, partnership, trust or limited liability company upon the terms and
conditions provided in Article Five hereof and as long as permitted under the
terms of the Senior Debt
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<PAGE>
shall not be deemed a dissolution, winding-up, liquidation or reorganization for
the purposes of this Section if such other corporation 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 Paid 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 Securities, 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
Securities 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 Trust Officer shall have actually received the written notice provided for in
the first sentence of Section 10.02(b) or in Section 10.07 (provided that,
---------
notwithstanding the foregoing, the Holders receiving any payments made in
contravention of Section 10.02 and/or 10.03 (and 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 Securities shall be subrogated to the rights of
the holders of Senior Debt to receive payments or distributions of cash,
property or securities of the Company applicable to the Senior Debt until the
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Securities 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 Securities 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 Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of the Company
other than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Holder of any Security 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, property 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 Securities 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
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any other facts which would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall 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
reasonable 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 Securities 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 Securities, 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
dis-
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tributed 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.
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
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the Holders of the Securities and without impairing or releasing the
subordination provided in this Article Ten or the obligations hereunder of the
Holders of the Securities 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. Securityholders Authorize Trustee To
Effectuate Subordination of Securities.
--------------------------------------
Each Holder of Securities 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 Securities, 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 Securities 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 Securities. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Debt or their Representative to
authorize
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or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder 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 Securities 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
pursuant to other sections of this Indenture.
ARTICLE ELEVEN
GUARANTEE OF SECURITIES
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 (such guarantees to be referred to
herein as a "Guarantee") to each Holder of a Security 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
Securities or the obligations of the Company or any other Guarantors to the
Holders or the Trustee hereunder or thereunder, that: (a) the principal of,
premium, if any, and interest on the Securities shall be duly and punctually
paid in full when due, whether at maturity, upon redemption at the option of
Holders pursuant to the provisions of the Securities relating thereto, by
acceleration or otherwise, and interest on
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the overdue principal and (to the extent permitted by law) interest, if any, on
the Securities and all other obligations of the Company or the Guarantors to the
Holders or the Trustee hereunder or thereunder (including amounts due the
Trustee under Section 7.07 hereof) and all other obligations shall be promptly
paid in full or performed, all in accordance with the terms hereof and thereof;
and (b) in case of any extension of time of payment or renewal of any Securities
or any of such other obligations, the same shall be promptly paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at maturity, by acceleration or otherwise. Failing payment when due of
any amount so guaranteed, or failing performance of any other obligation of the
Company to the Holders under this Indenture or under the Securities, for
whatever reason, each Guarantor shall be obligated to pay, or to perform or
cause the performance of, the same immediately. An Event of Default under this
Indenture or the Securities shall constitute an event of default under this
Guarantee, and shall entitle the Holders of Securities to accelerate the
obligations of the Guarantors hereunder 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 Securities or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any Holder of the Securities 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 Guarantee is affixed to any particular Security, 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 Guarantee shall not be discharged except by
complete performance of the obligations contained in the Securities, this
Indenture and this Guarantee. This Guarantee is a guarantee of payment and not
of collection. If any Holder or the Trustee is required by any court or
other-
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wise 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 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 Securities 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
hereof for the purposes of this 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 Guarantee.
No stockholder, officer, director, employee or incorporator, past,
present or future, or any Guarantor, as such, shall have any personal liability
under this Guarantee by reason of his, her or its status as such stockholder,
officer, director, employee or incorporator.
Each Guarantor that makes a payment or distribution under its
Guarantee shall be entitled to a contribution from each other Guarantor,
determined in accordance with GAAP.
SECTION 11.02. Limitations on Guarantees.
-------------------------
The obligations of each Guarantor under its Guarantee are limited to
the maximum amount which, after giving effect to all other contingent and fixed
liabilities of such Guarantor (including without limitation, its guarantee of
Obligations pursuant to the Credit Agreement and any other Guarantor Senior
Debt) and after giving effect to any collections from or payments made by or on
behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Guarantee or pursuant to its contribution obligations under
this Indenture, will result in the obligations of such Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law. Each Guarantor that
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makes a payment or distribution under a Guarantee shall be entitled to a
contribution from each other Guarantor in an amount pro rata, based on the net
--- ----
assets of each Guarantor, determined in accordance with GAAP.
SECTION 11.03. Execution and Delivery of Guarantee.
-----------------------------------
To further evidence the Guarantee set forth in Section 11.01, each
Guarantor hereby agrees that a notation of such Guarantee, substantially in the
form of Exhibit E hereto, shall be endorsed on each Security authenticated and
---------
delivered by the Trustee. Such Guarantee shall be executed on behalf of each
Guarantor by either manual or facsimile signature of one Officer of each
Guarantor who shall have been duly authorized to so execute by all requisite
corporation action. The validity and enforceability of any Guarantee shall not
be affected by the fact that it is not affixed to any particular Security.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 11.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Guarantee.
If an Officer of a Guarantor whose signature is on this Indenture or a
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which such Guarantee is endorsed or at any time thereafter, such
Guarantor's Guarantee of such Security shall nevertheless be valid.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of each Guarantor.
SECTION 11.04. Release of a Guarantor.
----------------------
(a) Upon the sale or disposition of all of the Capital Stock of a
Guarantor by the Company, in a transaction or series of related transactions
that either (i) does not constitute an Asset Sale or (ii) constitutes an Asset
Sale the Net Cash Proceeds of which are applied in accordance with Section 4.16,
or upon the consolidation or merger of a Guarantor with or into any Person in
compliance with Article Five (in
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each case, other than to the Company or an Affiliate of the Company), or if any
Guarantor is dissolved or liquidated in accordance with this Indenture, such
Guarantor's Guarantee will be automatically discharged and released from all
obligations under this Article Eleven without any further action required on the
part of the Trustee or any Holder. Any Guarantor not so released or the entity
surviving such Guarantor, as applicable, shall remain or be liable under its
Guarantee as provided in this Article Eleven.
(b) The Trustee shall deliver an appropriate instrument evidencing
the release of a Guarantor 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 11.04; 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.
The Trustee shall execute any documents reasonably requested by the
Company or a Guarantor in order to evidence the release of such Guarantor from
its obligations under its Guarantee endorsed on the Securities and under this
Article Eleven.
Except as set forth in Articles Four and Five and this Section 11.04,
nothing contained in this Indenture or in any of the Securities 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 11.05. Waiver of Subrogation.
---------------------
Until this Indenture is discharged and all of the Securities 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 Securities or this Indenture
and such Guarantor's obligations under this
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Guarantee 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 property or by set-off or in any other manner,
payment or security on account of such claim or other rights. If any amount
shall be paid to any Guarantor in violation of the preceding sentence and any
amounts owing to the Trustee or the Holders of Securities under the Securities,
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
11.05 is knowingly made in contemplation of such benefits.
SECTION 11.06. Immediate Payment.
-----------------
Each Guarantor agrees to make immediate payment to the Trustee on
behalf of the Holders of all 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 11.07. No Set-Off.
----------
Each payment to be made by a Guarantor hereunder in respect of the
Obligations shall be payable in the currency or currencies in which such
Obligations are denominated, and shall be made without set-off, counterclaim,
reduction or diminution of any kind or nature.
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SECTION 11.08. 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 11.09. Obligations Continuing.
----------------------
The obligations of each Guarantor hereunder shall be continuing and
shall remain in full force and effect until all the 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 instrument 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 11.10. 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 Securities or this
Indenture.
SECTION 11.11. Obligations Reinstated.
----------------------
The obligations of each Guarantor hereunder shall continue to be
effective or shall be reinstated, as the case
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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 is stayed upon the insolvency, bankruptcy,
liquidation or reorganization of the Company, all such Indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by
each Guarantor as provided herein.
SECTION 11.12. 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, bankruptcy, 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 Securities or any other document or
instrument;
(c) any failure of the Company, whether or not without fault on its
part, to perform or comply with any of
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the provisions of this Indenture or the Securities, 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 Securities, or any other amendment, variation,
supplement, replacement or waiver of, or any consent to departure from, any
of the Securities 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 Securities;
(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 Obligations or the obligations of a Guarantor under its Guarantee; and
(j) any other circumstance, including release of the Guarantor
pursuant to Section 11.04 (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 Securities or of a Guarantor in
respect of its Guarantee hereunder.
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SECTION 11.13. Waiver.
------
Without in any way limiting the provisions of Section 11.01 hereof,
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 Obligations, or other notice or formalities to the Company or any
Guarantor of any kind whatsoever.
SECTION 11.14. 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 or to take any other steps under any
security for the Obligations or 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 Guarantees or under this Indenture.
SECTION 11.15. 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
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third party with respect to the obligations or matters contemplated by this
Indenture or the Securities;
(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 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.
SECTION 11.16. Default and Enforcement.
-----------------------
If any Guarantor fails to pay in accordance with Section 11.06 hereof,
the Trustee may proceed in its name as trustee hereunder in the enforcement of
the 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 11.17. 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 11.18. Acknowledgment.
--------------
Each Guarantor hereby acknowledges communication of the terms of this
Indenture and the Securities and consents to and approves of the same.
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SECTION 11.19. Costs and Expenses.
------------------
Each Guarantor shall pay on demand by the Trustee any and all 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 Guarantee.
SECTION 11.20. No Merger or Waiver; Cumulative Remedies.
----------------------------------------
No 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 Securities, 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 Securities 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 Guarantee and
under this Indenture, the Securities 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 11.21. Survival of 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 payment in full of the 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 11.22. Guarantee in Addition to Other Obligations.
------------------------------------------
The obligations of each Guarantor under its 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
Securities and any
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guarantees or security at any time held by or for the benefit
of any of them.
SECTION 11.23. 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 11.24. Successors and Assigns.
----------------------
Each 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
SUBORDINATION OF GUARANTEE
SECTION 12.01. Guarantee Obligations Subordinated
to Guarantor Senior Debt.
- -------------------------
Anything herein to the contrary notwithstanding, each of the
Guarantors, for itself and its successors, and each Holder, by his or her
acceptance of Guarantees, agrees that the payment of all Obligations owing to
the Holders in respect of its Guarantee (collectively, as to any Guarantor, its
"Guarantee Obligations") is subordinated, to the extent and in the manner
---------------------
provided in this Article Twelve, to the prior payment in full in cash or Cash
Equivalents, or such payment duly provided for to the satisfaction of the
holders of Guarantor Senior Debt, of all Obligations on Guarantor Senior Debt of
such Guarantor.
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<PAGE>
This Article Twelve 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.
SECTION 12.02. Suspension of Guarantee Obligations
When Guarantor 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 regularly accruing fees with respect to, any Guarantor Senior
Debt, then no payment of any kind or character shall be made by or on behalf of
such Guarantor or any other Person on its behalf with respect to any Guarantee
Obligations or to acquire any of the Securities for cash or property or
otherwise and until such Payment Default shall have been cured or waived or
shall have ceased to exist or such Guarantor Senior Debt shall have been
discharged or paid in full in cash or Cash Equivalents.
(b) At any time while any Payment Blockage Period is in existence,
neither any Guarantor nor any other Person on any Guarantor's behalf shall (x)
make any payment of any kind or character with respect to any Obligations on its
Guarantee or (y) acquire any of the Securities for cash or otherwise.
(c) In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any Holder when such payment is prohibited
by the foregoing provisions of this Section 12.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Guarantor Senior Debt (pro rata to such holders on the basis of the respective
amount of Guarantor 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 then due and owing on the
Guarantor Senior Debt, if any, received from the holders of Guarantor Senior
Debt (or their Representatives) or, if such
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information is not received from such holders or their Representatives, from a
Guarantor and only amounts included in the information provided to the Trustee
shall be paid to the holders of Guarantor Senior Debt.
SECTION 12.03. Guarantee Obligations Subordinated
to Prior Payment of All Guarantor
Senior Debt on Dissolution, Liquidation
or Reorganization of Such Guarantor.
------------------------------------
(a) Upon any payment or distribution of assets of any Guarantor of
any kind or character, whether in cash, property or securities, to creditors
upon any total or partial liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors or marshaling of assets of such
Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other
similar proceeding relating to such Guarantor or its property, whether voluntary
or involuntary, all Obligations due or to become due upon all Guarantor 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 Guarantor Senior Debt,
before any payment or distribution of any kind or character is made on account
of any Guarantee Obligations or for the acquisition of any of the Securities for
cash or property or otherwise. Upon any such dissolution, winding-up,
liquidation, reorganization, receivership or similar proceeding, any payment or
distribution of assets of such Guarantor of any kind or character, whether in
cash, property or securities, to which the Holders or the Trustee under this
Indenture would be entitled, except for the provisions hereof, shall be paid by
such Guarantor 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 Guarantor Senior Debt (pro rata to such holders on the basis of the
respective amounts of Guarantor 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 Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has
been paid in full in cash or
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Cash Equivalents after giving effect to any concurrent payment, distribution or
provision therefor to or for the holders of Guarantor Senior Debt.
(b) To the extent any payment of Guarantor Senior Debt (whether by or
on behalf of a Guarantor, as proceeds of security or enforcement of any right of
setoff or otherwise) is declared to be fraudulent or preferential, set aside or
required to be paid to any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar Person under any bankruptcy, insolvency, receivership,
fraudulent conveyance or similar law, then, if such payment is recovered by, or
paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person, the Guarantor 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.
(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,
property or securities, shall be received by any Holder when such payment or
distribution is prohibited by this Section 12.03, such payment or distribution
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of Guarantor Senior Debt (pro rata to such holders on the basis
of the respective amount of Guarantor 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 Guarantor Senior Debt may have been issued, as
their respective interests may appear, for application to the payment of
Guarantor Senior Debt remaining unpaid until all such Guarantor 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 Guarantor Senior Debt.
(d) The consolidation of any Guarantor with, or the merger of any
Guarantor with or into, another corporation or the liquidation or dissolution of
a Guarantor following the conveyance or transfer of all or substantially all of
its assets, to another corporation upon the terms and conditions provided in
Article Five hereof and as long as permitted under the
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<PAGE>
terms of the Guarantor Senior Debt shall not be deemed a dissolution, winding-
up, liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, assumes the Guarantee of such Guarantor hereunder in accordance with
Article Five hereof.
SECTION 12.04. Payments May Be Paid Prior
to Dissolution.
--------------------------
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) any Guarantor, except under the conditions described
in Sections 12.02 and 12.03, from making payments at any time for the purpose of
making payments on Guarantee Obligations, 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 12.02 or 12.03, the
application by the Trustee of any moneys deposited with it for the purpose of
making such payments on Guarantee Obligations 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 Trust Officer shall have actually
received the written notice provided for in the first sentence of Section
10.02(b) or in Section 12.07 (provided that, notwithstanding the foregoing, the
--------
Holders receiving any payments made in contravention of Sections 12.02 and/or
12.03 (and the respective such payments) shall otherwise be subject to the
provisions of Section 12.02 and Section 12.03). Each Guarantor shall give prompt
written notice to the Trustee of any dissolution, winding-up, liquidation or
reorganization of such Guarantor, although any delay or failure to give any such
notice shall have no effect on the subordination provisions contained herein.
SECTION 12.05. Holders of Guarantee Obligations
To Be Subrogated to Rights of
Holders of Guarantor Senior Debt.
--------------------------------
Subject to the payment in full in cash or Cash Equivalents of all
Guarantor Senior Debt, the Holders of Guarantee Obligations of any Guarantor
shall be subrogated to the rights of the holders of Guarantor Senior Debt of
such Guaran-
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<PAGE>
tor to receive payments or distributions of cash, property or
securities of such Guarantor applicable to such Guarantor Senior Debt until all
amounts owing on or in respect of the Guarantee Obligations shall be paid in
full; and, for the purposes of such subrogation, no such payments or
distributions to the holders of such Guarantor Senior Debt by or on behalf of
such Guarantor, or by or on behalf of the Holders by virtue of this Article
Twelve, which otherwise would have been made to the Holders shall, as between
such Guarantor and the Holders, be deemed to be a payment by such Guarantor to
or on account of such Guarantor Senior Debt, it being understood that the
provisions of this Article Twelve are and are intended solely for the purpose of
defining the relative rights of the Holders, on the one hand, and the holders of
Guarantor Senior Debt, on the other hand.
SECTION 12.06. Obligations of the Guarantors Unconditional.
-------------------------------------------
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in the Guarantees is intended to or shall impair, as among the
Guarantors, their creditors other than the holders of Guarantor Senior Debt, and
the Holders, the obligation of the Guarantors, which is absolute and
unconditional, to pay to the Holders all amounts due and payable under the
Guarantees 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 Guarantors other than the holders of the Guarantor
Senior Debt, nor shall anything herein or therein prevent any Holder 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, property or securities of the Guarantors received upon the
exercise of any such remedy.
SECTION 12.07. Notice to Trustee.
-----------------
Each Guarantor shall give prompt written notice to the Trustee of any
fact known to such Guarantor which would prohibit the making of any payment to
or by the Trustee in respect of the Guarantees pursuant to the provisions of
this Article Twelve, although any delay or failure to give any such
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<PAGE>
notice shall have no effect on the subordination provisions contained herein.
Regardless of anything to the contrary contained in this Article Twelve 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 Guarantor
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 have received notice in
writing from a Guarantor, or from a holder of Guarantor 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 12.07 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
Guarantor Senior Debt to participate in any payment or distribution pursuant to
this Article Twelve, the Trustee may request such Person to furnish evidence to
the reasonable satisfaction of the Trustee as to the amounts of Guarantor 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 Twelve, 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 12.08. Reliance on Judicial Order or
Certificate of Liquidating Agent.
--------------------------------
Upon any payment or distribution of assets of a Guarantor referred to
in this Article Twelve, the Trustee, subject to the provisions of Article Seven
hereof, and the Holders 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 trustee in
bankruptcy, liquidating trus-
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<PAGE>
tee, receiver, assignee for the benefit of creditors, agent or other person
making such payment or distribution, delivered to the Trustee or the Holders,
for the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the holders of the Guarantor Senior Debt and other
Indebtedness of such Guarantor, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Twelve.
SECTION 12.09. Trustee's Relation to Guarantor Senior Debt.
-------------------------------------------
The Trustee and any agent of a Guarantor or the Trustee shall be
entitled to all the rights set forth in this Article Twelve with respect to any
Guarantor 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 Guarantor 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 Guarantor 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 Twelve, and no implied covenants
or obligations with respect to the holders of Guarantor 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 Guarantor Senior Debt.
Whenever a distribution is to be made or a notice given to holders or
owners of Guarantor Senior Debt, the distribution may be made and the notice may
be given to their Representative, if any.
SECTION 12.10. Subordination Rights Not Impaired
by Acts or Omissions of the Guarantors
or Holders of Guarantor Senior Debt.
------------------------------------
No right of any present or future holders of any Guarantor 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 any Guarantor
or by any act or failure to act, in good faith, by any such holder,
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<PAGE>
or by any noncompliance by any Guarantor 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 Guarantor 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 Securities and without
impairing or releasing the subordination provided in this Article Twelve or the
obligations hereunder of the Holders of the Securities to the holders of
Guarantor 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, Guarantor Senior Debt, or otherwise amend or supplement in any manner
Guarantor Senior Debt, or any instrument evidencing the same or any agreement
under which Guarantor Senior Debt is outstanding; (ii) sell, exchange, release
or otherwise deal with any property pledged, mortgaged or otherwise securing
Guarantor Senior Debt; (iii) release any Person liable in any manner for the
payment or collection of Guarantor Senior Debt; and (iv) exercise or refrain
from exercising any rights against the Guarantors and any other Person.
SECTION 12.11. Holders Authorize Trustee To Effectuate
Subordination of Guarantee Obligations.
---------------------------------------
Each Holder of Guarantee Obligations 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
Guarantor Senior Debt and the Holders, the subordination provided in this
Article Twelve, and appoints the Trustee its attorney-in-fact for such purposes,
including, in the event of any dissolution, winding-up, liquidation or
reorganization of any Guarantor (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 any Guarantor, the filing of a claim for the unpaid balance under
its Guarantee Obligations and accrued interest in the form required in those
proceedings.
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<PAGE>
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 Guarantor 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 Guarantee Obligations. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Guarantor 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 Guarantee Obligations or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Guarantor Senior Debt or their
Representative to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 12.12. This Article Twelve Not To
Prevent Events of Default.
--------------------------
The failure to make a payment on account of principal of or interest
on the Guarantees by reason of any provision of this Article Twelve will not be
construed as preventing the occurrence of an Event of Default.
SECTION 12.13. Trustee's Compensation
Not Prejudiced.
----------------------
Nothing in this Article Twelve will apply to amounts due to the
Trustee pursuant to other sections of this Indenture.
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01. TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed
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<PAGE>
to be included in this Indenture by the TIA, such required or deemed provision
shall control.
SECTION 13.02. 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 telecopier or registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
if to the Company or a Guarantor:
Building One Services Corporation
800 Connecticut Avenue, NW
Washington, DC 20006
Attention: Chief Financial Officer
Telephone: (202) 261-6000
Facsimile: (202) 261-6020
with a copy to:
Morgan Lewis & Bockius LLP
1800 M Street, NW
Washington, DC 20036
Attention: Linda L. Griggs
Telephone: (202) 467-7245
Facsimile: (202) 467-7176
if to the Trustee:
IBJ Whitehall Bank & Trust Company
One State Street
New York, NY 10004
Attention: Corporate Trust Administration
Telephone: (212) 858-2657
Facsimile: (212) 858-2592
Each of the Company and the Trustee by written notice to each other
such Person may designate additional or different
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<PAGE>
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, if telexed; when receipt
is acknowledged, if telecopied; and 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).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration 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 Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.03. Communications by Holders
with Other Holders.
-------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture, the
Securities or the Guarantees. The Company, the Trustee, the Registrar and any
other Person shall have the protection of TIA (S) 312(c).
SECTION 13.04. 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
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<PAGE>
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 13.05. 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 4.08, 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 opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of 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 13.06. Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee, Paying Agent or Registrar may make reasonable rules for
its functions.
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<PAGE>
SECTION 13.07. 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 13.08. Governing Law.
-------------
THIS INDENTURE, THE SECURITIES AND THE 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. Each of the parties hereto 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 Indenture, the Securities or the
Guarantees.
SECTION 13.09. 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 13.10. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or incorporator, as such,
of the Company or any of its subsidiaries shall not have any liability for any
obligations of the Company under the Securities, this Indenture or the
Guarantees or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 13.11. Successors.
----------
All agreements of the Company and the Guarantors in this Indenture,
the Securities and the Guarantees shall bind their respective successors. All
agreements of the Trustee in this Indenture shall bind its successor.
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<PAGE>
SECTION 13.12. 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 13.13. Severability.
------------
In case any one or more of the provisions in this Indenture, in the
Securities or in the 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.
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<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the date first written above.
BUILDING ONE SERVICES CORPORATION,
as Issuer
By:_______________________________
Name:
Title:
By: ______________________________
Name:
Title:
ADVENT ELECTRIC CO., INC.
AMERICAN AIR COMPANY, INC.
APPEARANCE MANAGEMENT SERVICES,
INC.
BELTLINE MECHANICAL SERVICES,
INC.
BOXBERGER, INC.
BRICK, INC.
BUILDING ONE MECHANICAL SERVICES,
INC.
BUILDING ONE SERVICE SOLUTIONS,
INC.
BUYR, INC.
CENTER SERVICES, INC.
CONSOLIDATED ELECTRICAL GROUP,
INC.
D/FW MECHANICAL SERVICES, INC.
FLOR-SHIN, INC.
GAMEWELL MECHANICAL, INC.
GARFIELD-INDECON ELECTRICAL SERV-
ICES, INC.
G.S. GROUP, INC.
G.S. FINANCIAL, INC.
GULF STATES, INC.
S-1
<PAGE>
G.S.I. OF CALIFORNIA, INC.
TESTRONICS, INC.
BRAZOSPORT MANAGEMENT, INC.
HUNT ELECTRIC, INC.
IVEY MECHANICAL COMPANY, INC.
BARNES IVEY MECHANICAL COMPANY, L.L.C.
LEXINGTON/IVEY MECHANICAL COMPANY, LLC
IVEY MECHANICAL SERVICES, L.L.C.
THE LEWIS COMPANIES, INC.
OIL CAPITAL ELECTRIC, INC.
ENGINEERING DESIGN GROUP, INC.
ELECTRICAL DESIGN & CONSTRUCTION, INC.
FRED CLARK ELECTRICAL CONTRACTOR, INC.
OMNI MECHANICAL COMPANY
OMNI MECHANICAL SERVICES
MCINTOSH MECHANICAL, INC.
NATIONAL NETWORK SERVICES, INC.
PERIMETER MAINTENANCE CORPORATION
POTTER ELECTRIC CO., INC.
REGENCY ELECTRIC COMPANY, INC.
REGENCY ELECTRIC COMPANY
JACKSONVILLE OFFICE, INC.
REGENCY ELECTRIC COMPANY ORLANDO
OFFICE, INC.
REGENCY ELECTRIC COMPANY ATLANTA
OFFICE
REGENCY ELECTRIC COMPANY MEMPHIS
OFFICE, INC.
REGENCY ELECTRIC COMPANY PROJECTS
GROUP, INC.
REGENCY ELECTRIC COMPANY SOUTH
FLORIDA, INC.
REGENCY ELECTRIC COMPANY
CHARLOTTE OFFICE, INC.
RELIABLE PAPER SERVICE COMPANY,
INC.
RIVIERA ELECTRIC CONSTRUCTION CO.
S-2
<PAGE>
RIVIERA ELECTRIC OF CALIFORNIA,
INC.
ROBINSON MECHANICAL COMPANY
SANDERS BROS., INC.
SKC ELECTRIC, INC.
CRAMAR ELECTRIC, INC.
SKCE, INC.
PRO WIRE SECURITY SYSTEMS, INC.
SPANN BUILDING MAINTENANCE COMPANY
SPANN MANAGEMENT GROUP, INC.
TAYLOR ELECTRIC, INC.
TESS HOLDINGS, INC.
CREST INTERNATIONAL, LLC
TOWN & COUNTRY ELECTRIC, INC.
TRI-CITY ELECTRICAL CONTRACTORS,INC.
TRI-M HOLDING CORP.
TRI-M CORPORATION
TRI-M ELECTRICAL CONSTRUCTION CORP.
TRI-M BUILDING AUTOMATION SYSTEMS CORP.
TRI-M INFORMATION SYSTEMS CORP.
TRI-M INTEGRATED SYSTEM SOLUTIONS CORP.
WALKER ENGINEERING, INC.
WARREN ELECTRICAL CONSTRUCTION CORP.
WATSON ELECTRICAL CONSTRUCTION CO.
WILSON ELECTRIC COMPANY, INC.
CHAMBERS ELECTRONIC COMMUNICATIONS, INC.
By: ____________________________
Name:
Title:
S-3
<PAGE>
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By: ____________________________
Name:
Title:
S-4
<PAGE>
BUILDING ONE SERVICES CORPORATION
10 1/2% Senior Subordinated Note
due May 1, 2009
CUSIP No.
No. $
BUILDING ONE SERVICES CORPORATION, a Delaware corporation (the
"Company", which term includes any successor corporation), for value received
promises to pay to CEDE & CO. or registered assigns, the principal sum of
on May 1, 2009.
Interest Payment Dates: May 1 and November 1, commencing November 1,
1999.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Dated: April 30, 1999
BUILDING ONE SERVICES CORPORATION
By: ______________________
Name:
Title:
By: ______________________
Name
Title:
A-1
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 1/2% Senior Subordinated Notes due 2009
described in the within-mentioned Indenture.
Dated: April 30, 1999 IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By: ____________________________
Authorized Signatory
A-2
<PAGE>
(REVERSE OF SECURITY)
BUILDING ONE SERVICES CORPORATION
10 1/2% Senior Subordinated Note
due May 1, 2009
1. Interest.
--------
BUILDING ONE SERVICES CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above. The Company will pay interest semi-annually on
May 1 and November 1 of each year (the "Interest Payment Date"), commencing
November 1, 1999. Interest on this Security will accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
April 30, 1999. Interest on this Security will be computed on the basis of a
360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal from time to time
on demand at the rate borne by this Security plus 2% and on overdue installments
of interest (without regard to any applicable grace periods) to the extent
lawful.
2. Method of Payment.
-----------------
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date even if the
Securities are cancelled on registration of transfer or registration of exchange
after such Record Date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company shall pay principal and interest in
money of the United States that at the time of payment is legal tender for
payment of public and private debts ("U.S. Legal Tender"). However, the Company
may pay principal and interest by wire transfer of Federal funds, or interest by
check payable in such U.S. Legal Tender. The Company may deliver any such
interest payment to the Paying Agent or to a Holder at the Holder's registered
address.
A-3
<PAGE>
3. Paying Agent and Registrar.
--------------------------
Initially, IBJ Whitehall Bank & Trust Company (the "Trustee") will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to the Holders. The Company or any of
its Subsidiaries may, subject to certain exceptions, act as Registrar or co-
Registrar.
4. Indenture.
---------
The Company issued the Securities under an Indenture, dated as of
April 30, 1999 (the "Indenture"), among the Company, the Guarantors named
therein and the Trustee. This Security is one of a duly authorized issue of
Securities of the Company designated as its 10 1/2% Senior Subordinated Notes
due 2009 (the "Securities"). The Securities are treated as a single class of
securities under the Indenture unless otherwise specified in the Indenture.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S.C. (S)(S) 77aaa-77bbbb) (the "TIA"), as in effect
on the date of the Indenture until such time as the Indenture is qualified under
the TIA, and thereafter as in effect on the date on which the Indenture is
qualified under the TIA. Notwithstanding anything to the contrary herein, the
Securities are subject to all such terms, and Holders of Securities are referred
to the Indenture and the TIA for a statement of them. The Securities are
general obligations of the Company limited in aggregate principal amount to
$400,000,000.
5. Subordination.
-------------
The Securities are subordinated in right of payment, in the manner and
to the extent set forth in the Indenture, to the prior payment in full in cash
or Cash Equivalents of all Senior Debt of the Company, whether outstanding on
the date of the Indenture or thereafter created, incurred, assumed or
guaranteed. Each Holder by his acceptance hereof agrees to be bound by such
provisions and authorizes and expressly directs the Trustee, on his behalf, to
take such action as may be nec-
A-4
<PAGE>
essary or appropriate to effectuate the subordination provided for in the
Indenture and appoints the Trustee his attorney-in-fact for such purposes.
6. Optional Redemption.
-------------------
The Securities will be redeemable, at the Company's option, in whole
at any time or in part from time to time, on and after May 1, 2004, upon not
less than 30 nor more than 60 days' notice, at the following redemption prices
(expressed as percentages of the principal amount) if redeemed during the
twelve-month period commencing on May 1 of the years set forth below, plus, in
each case, accrued and unpaid interest thereon, if any, to the date of
redemption:
Year Percentage
---- ----------
2004..................................................... 105.438%
2005..................................................... 104.350%
2006..................................................... 103.263%
2007..................................................... 102.175%
2008..................................................... 101.088%
2009 and thereafter...................................... 100.000%
7. Optional Redemption upon Equity Offerings.
--------------------------------------------
At any time, or from time to time, on or prior to May 1, 2002, the
Company may, at its option, use the net cash proceeds of one or more Equity
Offerings to redeem up to 35% aggregate principal amount of the Securities
issued pursuant to the Indenture at a redemption price equal to 110.875% of the
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the date of redemption; provided that after any such redemption the aggregate
--------
principal amount of Securities outstanding must equal at least 65% of the
aggregate principal amount of the Securities issued pursuant to the Indenture.
In order to effect the foregoing redemption with the net cash proceeds of any
Equity Offering, the Company shall make such redemption not more than 90 days
after the consummation of any such Equity Offering.
As used in the preceding paragraph, "Equity Offering" means a public
or private offering of Qualified Capital Stock
A-5
<PAGE>
(other than public offerings with respect to the Company's Common Stock on Form
S-8 or any replacement form for the Form S-8) of the Company for aggregate net
cash proceeds to the Company of at least $20 million.
8. Notice of Redemption.
--------------------
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at such Holder's registered address. Securities in denominations of $1,000 may
be redeemed only in whole. The Trustee may select for redemption portions
(equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security. On and after the Redemption
Date, interest will cease to accrue on Securities or portions thereof called for
redemption.
9. Change of Control Offer.
-----------------------
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all of the outstanding Securities at a purchase
price equal to 101% of the principal amount thereof, plus accrued and unpaid
interest, if any, thereon to the date of repurchase.
10. Limitation on Asset Sales.
-------------------------
The Company is, subject to certain conditions, obligated to make an
offer to purchase Securities 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.
A-6
<PAGE>
11. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder shall
register the transfer of or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay certain transfer
taxes or similar governmental charges payable in connection therewith as
permitted by the Indenture. The Registrar need not register the transfer of or
exchange any Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
12. Persons Deemed Owners.
---------------------
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
13. Unclaimed Funds.
---------------
If funds for the payment of principal or interest remain unclaimed for
one year, the Trustee and the Paying Agent will repay the funds to the Company
at its request. After that, all liability of the Trustee and such Paying Agent
with respect to such funds shall cease.
14. Discharge Prior to Redemption or Maturity.
-----------------------------------------
The Company and the Guarantors may be discharged from their
obligations under the Indenture, the Securities and the Guarantees except for
certain provisions thereof, and may be discharged from obligations to comply
with certain covenants contained in the Indenture, the Securities and the
Guarantees, in each case upon satisfaction of certain conditions specified in
the Indenture.
15. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture, the Securities and the
Guarantees may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding, and any existing Default or Event of Default or compliance
with
A-7
<PAGE>
any provision may be waived with the consent of the Holders of a majority
in aggregate principal amount of the Securities then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or supplement
the Indenture, the Securities and the Guarantees to, among other things, cure
any ambiguity, defect or inconsistency, provide for uncertificated Securities in
addition to or in place of certificated Securities or comply with any
requirements of the Commission in connection with the qualification of the
Indenture under the TIA, or make any other change that does not materially
adversely affect the rights of any Holder of a Security.
16. Restrictive Covenants.
---------------------
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and its Restricted Subsidiaries to make
restricted payments, to incur indebtedness, to create liens, to sell assets, to
permit restrictions on dividends and other payments by Restricted Subsidiaries
of the Company to the Company, to consolidate, merge or sell all or
substantially all of its assets or to engage in transactions with affiliates.
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.
17. Defaults and Remedies.
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture, the Securities or the Guarantees except as
provided in the Indenture. The Trustee is not obligated to enforce the
Indenture, the Securities or the Guarantees unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Securities then outstanding to direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or
A-8
<PAGE>
Events of Default if it determines that withholding notice is in their interest.
18. Trustee Dealings with Company.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company, its Subsidiaries or their respective Affiliates as if it were
not the Trustee.
19. No Recourse Against Others.
--------------------------
No stockholder, director, officer, employee or incorporator, as such,
of the Company or any Subsidiary of the Company shall have any liability for any
obligation of the Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of, such obligations or their creation.
Each Holder of a Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the
issuance of the Securities.
20. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
21. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
22. Governing Law.
-------------
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York without giving effect to applicable principles
of conflicts of laws to the extent that the application of the laws of another
jurisdiction would be required thereby.
A-9
<PAGE>
23. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
24. Registration Rights.
-------------------
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 Security shall have the
right to exchange this Security for a 10 1/2% Senior Subordinated Note due 2009
of the Company which shall have been registered under the Securities Act, in
like principal amount and having terms identical in all material respects as
this Security. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated or the
Securities are not offered for resale and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
25. Indenture.
---------
Each Holder, by accepting a Security, agrees to be bound by all of the
terms and provisions of the Indenture, as the same may be amended from time to
time. Capitalized terms used herein and not defined herein have the meanings
ascribed thereto in the Indenture.
26. Guarantees.
----------
This Security will be entitled to the benefits of certain senior
subordinated Guarantees made for the benefit of the Holders. Reference is
hereby made to the Indenture for a
/ / Not applicable to Form of Exchange Securities.
A-10
<PAGE>
statement of the respective rights, limitations of rights, duties and
obligations thereunder of the Guarantors, the Trustee and the Holders.
The Company will furnish to any Holder of a Security upon written
request and without charge a copy of the Indenture. Requests may be made to:
BUILDING ONE SERVICES CORPORATION, 800 Connecticut Avenue, NW, Washington, DC
20006, Attention: Office of General Counsel.
A-11
<PAGE>
ASSIGNMENT FORM
I or we assign and transfer this Security 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 Security 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 Security)
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 Security 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 Security
(which effectiveness shall not have been suspended or terminated at the date of
the transfer) and (ii) April 30, 2001 the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer:
[Check One]
---------
<PAGE>
(1) ___ to the Company or a subsidiary thereof; or
(2) ___ pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
(3) ___ to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as
amended) 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 of 1933, as
amended; or
(5) ___ pursuant to the exemption from registration provided by Rule 144
under the Securities Act of 1933, as amended; or
(6) ___ pursuant to an effective registration statement under the Securities
Act of 1933, as amended; or
(7) ___ pursuant to another available exemption from the registration
statement requirements of the Securities Act of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
The transferee is an Affiliate of the Company.
Unless one of the items is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered Holder thereof; provided, however, that if item
-------- -------
(3), (4), (5) or (7) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Securities, in their sole discretion,
such written legal opinions, certifications (including an investment letter in
the case of box (3) or (4) and other information as the Trustee or the Company
have
-2-
<PAGE>
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 of l933, as amended.
If none of the foregoing items are checked, the Trustee or Registrar
shall not be obligated to register this Security in the name of any person other
than the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.16 of the Indenture shall have
been satisfied.
Dated:______________ Signed:__________________________________
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee:_______________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company 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:_______________ _______________________________________
NOTICE: To be executed by an executive
officer
-3-
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate
box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the
amount: $___________
Dated: _________________ Signed: ___________________________
(Sign exactly as name
appears on the other
side of this Security)
Signature Guarantee: _______________________________________________
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
<PAGE>
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 until after the
------------------------
second anniversary of the Issue Date, unless otherwise agreed by the Issuer and
the Holder thereof:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A)
TO THE COMPANY THEREOF OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES
TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT (AN
"ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS FURNISHED
ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE FOR
THIS SECURITY), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT (IF AVAILABLE), (E) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE), OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THIS SECURITY WITHIN TWO YEARS
B-1
<PAGE>
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN
ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY REQUIRE 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. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANING GIVEN
TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Each Global Security authenticated and delivered hereunder shall also
bear the following legend:
THIS SECURITY IS A GLOBAL SECURITY 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 SECURITY IS NOT
EXCHANGEABLE FOR SECURITIES 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 SECURITY (OTHER THAN A TRANSFER
OF THIS SECURITY 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
COMPANY 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 INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE
B-2
<PAGE>
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTION
2.16 OF THE INDENTURE.
B-3
<PAGE>
EXHIBIT C
---------
Form of Certificate To Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
[ ], [ ]
[ ]
[ ]
[ ]
Ladies and Gentlemen:
In connection with our proposed purchase of 10 1/2% Senior
Subordinated Notes due 2009 (the "Notes") of BUILDING ONE SERVICES CORPORATION,
a Delaware corporation (the "Company"), we confirm that:
1. We have received a copy of the Offering Memorandum (the "Offering
Memorandum"), dated April 23, 1999, relating to the Securities 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 Securities is
subject to certain restrictions and conditions set forth in the Indenture
relating to the Securities (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 Securities 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 Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold except as permitted in the following sentence. We agree, on our
own behalf
C-1
<PAGE>
and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Securities, we will do so only (i) to the
Company or any of its subsidiaries, (ii) inside the United States in accordance
with Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act), (iii) inside the United States
to an institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
the Trustee (as defined in the Indenture) a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Securities (the form of which letter can be obtained from the Trustee), (iv)
outside the United States in accordance with Rule 904 of Regulation S
promulgated under the Securities Act to non-U.S. persons, (v) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
available), or (vi) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing any of
the Securities from us a notice advising such purchaser that resales of the
Securities are restricted as stated herein.
4. We are not acquiring the Securities for or on behalf of, and will
not transfer the Securities to, any pension or welfare plan (as defined in
Section 3 of the Employee Retirement Income Security Act of 1974), except as
permitted in the section entitled "Transfer Restrictions" of the Offering
Memorandum.
5. We understand that, on any proposed resale of any Securities, 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 Securities 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) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are
C-2
<PAGE>
each able to bear the economic risk of our or their investment, as the case may
be.
7. We are acquiring the Securities 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-3
<PAGE>
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-4
<PAGE>
EXHIBIT D
---------
Form of Certificate To Be Delivered
in Connection with Transfers
Pursuant to Regulation S
-----------------------------------
[ ], [ ]
[ ]
[ ]
[ ]
[ ]
Re: Building One Services Corporation (the "Company") 10 1/2%
Senior Subordinated Notes due 2009 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of [$ ] aggregate
principal amount of the Securities, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities 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 off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(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;
D-1
<PAGE>
(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 Securities.
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
<PAGE>
EXHIBIT E
---------
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
Security the cash payments in United States dollars of principal of, premium, if
any, and interest on this Security in the amounts and at the times when due and
interest on the overdue principal, premium, if any, and interest, if any, of
this Security, if lawful, and the payment or performance of all other
obligations of the Company under the Indenture (as defined below) or the
Securities, to the Holder of this Security and the Trustee, all in accordance
with and subject to the terms and limitations of this Security, Article Eleven
of the Indenture and this Guarantee. This 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 Guarantee shall not be affected
by the fact that it is not affixed to any particular Security.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Indenture dated as of April 30, 1999, among Building One
Services Corporation, a Delaware corporation, as issuer (the "Company"), the
Guarantors named therein and IBJ Whitehall Bank & Trust Company, as trustee (the
"Trustee"), as amended or supplemented (the "Indenture").
The obligations of the undersigned to the Holders of Securities and to
the Trustee pursuant to this 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 Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
This Guarantee is subordinated in right of payment, in the manner and
to the extent set forth in Article Twelve of the Indenture, to the prior payment
in full in cash or Cash Equivalents of all Guarantor Senior Debt of the
Guarantors,
E-1
<PAGE>
whether outstanding on the date of the Indenture or thereafter created,
incurred, assumed or guaranteed.
THIS 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 Guarantee.
This Guarantee is subject to release upon the terms set forth in the
Indenture.
E-2
<PAGE>
IN WITNESS WHEREOF, each Guarantor has caused its Guarantee to be duly
executed.
Date: April 30, 1999
ADVENT ELECTRIC CO., INC.
AMERICAN AIR COMPANY, INC.
APPEARANCE MANAGEMENT SERVICES,
INC.
BELTLINE MECHANICAL SERVICES,
INC.
BOXBERGER, INC.
BRICK, INC.
BUILDING ONE MECHANICAL SERVICES,
INC.
BUILDING ONE SERVICE SOLUTIONS,
INC.
BUYR, INC.
CENTER SERVICES, INC.
CONSOLIDATED ELECTRICAL GROUP,
INC.
D/FW MECHANICAL SERVICES, INC.
FLOR-SHIN, INC.
GAMEWELL MECHANICAL, INC.
GARFIELD-INDECON ELECTRICAL SERV-
ICES, INC.
G.S. GROUP, INC.
G.S. FINANCIAL, INC.
GULF STATES, INC.
G.S.I. OF CALIFORNIA, INC.
TESTRONICS, INC.
BRAZOSPORT MANAGEMENT, INC.
HUNT ELECTRIC, INC.
IVEY MECHANICAL COMPANY, INC.
BARNES IVEY MECHANICAL COMPANY, L.L.C.
LEXINGTON/IVEY MECHANICAL COMPANY, LLC
IVEY MECHANICAL SERVICES, L.L.C.
THE LEWIS COMPANIES, INC.
OIL CAPITAL ELECTRIC, INC.
ENGINEERING DESIGN GROUP, INC.
E-3
<PAGE>
ELECTRICAL DESIGN & CONSTRUCTION, INC.
FRED CLARK ELECTRICAL CONTRACTOR, INC.
OMNI MECHANICAL COMPANY
OMNI MECHANICAL SERVICES
MCINTOSH MECHANICAL, INC.
NATIONAL NETWORK SERVICES, INC.
PERIMETER MAINTENANCE CORPORATION
POTTER ELECTRIC CO., INC.
REGENCY ELECTRIC COMPANY, INC.
REGENCY ELECTRIC COMPANY
JACKSONVILLE OFFICE, INC.
REGENCY ELECTRIC COMPANY ORLANDO
OFFICE, INC.
REGENCY ELECTRIC COMPANY ATLANTA
OFFICE
REGENCY ELECTRIC COMPANY MEMPHIS
OFFICE, INC.
REGENCY ELECTRIC COMPANY PROJECTS
GROUP, INC.
REGENCY ELECTRIC COMPANY SOUTH
FLORIDA, INC.
REGENCY ELECTRIC COMPANY
CHARLOTTE OFFICE, INC.
RELIABLE PAPER SERVICE COMPANY,
INC.
RIVIERA ELECTRIC CONSTRUCTION CO.
RIVIERA ELECTRIC OF CALIFORNIA, INC.
ROBINSON MECHANICAL COMPANY
SANDERS BROS., INC.
SKC ELECTRIC, INC.
CRAMAR ELECTRIC, INC.
SKCE, INC.
PRO WIRE SECURITY SYSTEMS, INC.
SPANN BUILDING MAINTENANCE COM- PANY
SPANN MANAGEMENT GROUP, INC.
TAYLOR ELECTRIC, INC.
TESS HOLDINGS, INC.
CREST INTERNATIONAL, LLC
TOWN & COUNTRY ELECTRIC, INC.
E-4
<PAGE>
TRI-CITY ELECTRICAL CONTRACTORS,
INC.
TRI-M HOLDING CORP.
TRI-M CORPORATION
TRI-M ELECTRICAL CONSTRUCTION
CORP.
TRI-M BUILDING AUTOMATION SYSTEMS
CORP.
TRI-M INFORMATION SYSTEMS CORP.
TRI-M INTEGRATED SYSTEM SOLUTIONS
CORP.
WALKER ENGINEERING, INC.
WARREN ELECTRICAL CONSTRUCTION
CORP.
WATSON ELECTRICAL CONSTRUCTION
CO.
WILSON ELECTRIC COMPANY, INC.
CHAMBERS ELECTRONIC COMMUNICA-
TIONS, INC.
By: ____________________________
Name:
Title:
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By: ____________________________
Name:
Title:
E-5
<PAGE>
Exhibit (b)(8)
================================================================================
CREDIT AGREEMENT
among
BUILDING ONE SERVICES CORPORATION,
VARIOUS LENDING INSTITUTIONS,
GOLDMAN SACHS CREDIT PARTNERS L.P.,
AS DOCUMENTATION AGENT,
SALOMON SMITH BARNEY INC.,
AS SYNDICATION AGENT
and
BANKERS TRUST COMPANY,
AS ADMINISTRATIVE AGENT
________________________________
Dated as of April 30, 1999
________________________________
================================================================================
<PAGE>
SECTION 1. Amount and Terms of Credit................................. 1
1.01 Commitments................................................. 1
1.02 Minimum Borrowing Amounts, etc.............................. 5
1.03 Notice of Borrowing......................................... 5
1.04 Disbursement of Funds....................................... 6
1.05 Notes....................................................... 7
1.06 Conversions................................................. 8
1.07 Pro Rata Borrowings......................................... 9
1.08 Interest.................................................... 9
1.09 Interest Periods............................................ 10
1.10 Increased Costs; Illegality; etc............................ 11
1.11 Compensation................................................ 13
1.12 Change of Lending Office.................................... 14
1.13 Replacement of Banks........................................ 14
1.14 Additional Commitments...................................... 16
SECTION 2. Letters of Credit.......................................... 19
2.01 Letters of Credit........................................... 19
2.02 Letter of Credit Requests................................... 21
2.03 Letter of Credit Participations............................. 21
2.04 Agreement to Repay Letter of Credit Drawings................ 23
2.05 Increased Costs............................................. 24
SECTION 3. Fees; Commitments.......................................... 25
3.01 Fees........................................................ 25
3.02 Voluntary Termination or Reduction of Total Unutilized
Revolving Loan Commitment................................... 26
3.03 Mandatory Reduction of Commitments.......................... 27
SECTION 4. Payments................................................... 27
4.01 Voluntary Prepayments....................................... 27
4.02 Mandatory Repayment......................................... 29
4.03 Method and Place of Payment................................. 35
4.04 Net Payments................................................ 36
SECTION 5. Conditions Precedent to Initial Credit Events.............. 38
5.01 Execution of Agreement; Notes............................... 38
5.02 Officer's Certificate....................................... 38
5.03 Opinions of Counsel......................................... 38
5.04 Corporate Documents; Proceedings............................ 39
5.05 Adverse Change, etc......................................... 39
(i)
<PAGE>
Page
----
5.06 Litigation.................................................. 40
5.07 Approvals................................................... 40
5.08 Transaction................................................. 40
5.09 Security Documents; etc..................................... 41
5.10 Subsidiaries Guaranty....................................... 42
5.11 Employee Benefit Plans; Shareholders' Agreements;
Management Agreements; Employment Agreements; Collective
Bargaining Agreements; Existing Indebtedness Agreements;
Material Contracts; Tax Allocation Agreements.................... 42
5.12 Consent Letter.............................................. 44
5.13 Solvency Certificate; Insurance Certificates................ 44
5.14 Financial Statements; Pro Forma Financial Statements;
Projections...................................................... 44
5.15 Payment of Fees............................................. 45
SECTION 6. Conditions Precedent to All Credit Events.................. 45
6.01 No Default; Representations and Warranties.................. 45
6.02 Notice of Borrowing; Letter of Credit Request............... 45
6.03 Compliance With Indentures.................................. 45
SECTION 7. Representations and Warranties............................. 47
7.01 Company Status.............................................. 47
7.02 Company Power and Authority................................. 48
7.03 No Violation................................................ 48
7.04 Litigation.................................................. 48
7.05 Use of Proceeds; Margin Regulations......................... 48
7.06 Governmental Approvals...................................... 49
7.07 Investment Company Act...................................... 49
7.08 Public Utility Holding Company Act.......................... 49
7.09 True and Complete Disclosure................................ 50
7.10 Financial Condition; Financial Statements................... 50
7.11 Security Interests.......................................... 51
7.12 Compliance with ERISA....................................... 51
7.13 Capitalization.............................................. 52
7.14 Subsidiaries................................................ 52
7.15 Intellectual Property, etc.................................. 53
7.16 Compliance with Statutes, etc............................... 53
7.17 Environmental Matters....................................... 53
7.18 Properties.................................................. 54
7.19 Labor Relations............................................. 54
7.20 Tax Returns and Payments.................................... 54
7.21 Existing Indebtedness....................................... 55
7.22 Insurance................................................... 55
7.23 Representations and Warranties in Other Documents........... 55
7.24 Transaction................................................. 55
7.25 Year 2000 Compliance........................................ 55
7.26 Subordination............................................... 55
(ii)
<PAGE>
Page
----
SECTION 8. Affirmative Covenants...................................... 56
8.01 Information Covenants....................................... 56
8.02 Books, Records and Inspections.............................. 59
8.03 Insurance................................................... 60
8.04 Payment of Taxes............................................ 61
8.05 Corporate Franchises........................................ 61
8.06 Compliance with Statutes; etc............................... 61
8.07 Compliance with Environmental Laws.......................... 61
8.08 ERISA....................................................... 62
8.09 Good Repair................................................. 63
8.10 End of Fiscal Years; Fiscal Quarters........................ 63
8.11 Additional Security; Further Assurances..................... 63
8.12 Foreign Subsidiaries Security............................... 64
8.13 Use of Proceeds............................................. 65
8.14 Permitted Acquisitions...................................... 65
8.15 Maintenance of Company Separateness......................... 67
8.16 Performance of Obligations.................................. 67
8.17 Year 2000 Compliance........................................ 67
8.18 Margin Regulations.......................................... 67
8.19 Common Stock Repurchase..................................... 68
SECTION 9. Negative Covenants......................................... 68
9.01 Changes in Business......................................... 68
9.02 Consolidation; Merger; Sale or Purchase of Assets; etc...... 68
9.03 Liens....................................................... 71
9.04 Indebtedness................................................ 73
9.05 Advances; Investments; Loans................................ 75
9.06 Dividends; etc.............................................. 78
9.07 Transactions with Affiliates................................ 80
9.08 Consolidated Interest Coverage Ratio........................ 80
9.09 Adjusted Total Leverage Ratio............................... 81
9.10 Capital Expenditures........................................ 81
9.11 Designated Senior Debt...................................... 83
9.12 Limitation on Voluntary Payments and Modifications of
Indebtedness; Modifications of Certificate of Incorporation,
By-Laws and Certain Other Agreements; Issuances of Capital
Stock; etc.................................................. 83
9.13 Limitation on Issuance of Capital Stock..................... 85
9.14 Limitation on Certain Restrictions on Subsidiaries.......... 86
9.15 Limitation on the Creation of Subsidiaries and Joint
Ventures.................................................... 87
SECTION 10. Events of Default......................................... 88
10.01 Payments................................................... 88
10.02 Representations, etc....................................... 88
10.03 Covenants.................................................. 88
10.04 Default Under Other Agreements............................. 88
(iii)
<PAGE>
Page
----
10.05 Bankruptcy, etc............................................ 88
10.06 ERISA...................................................... 89
10.07 Security Documents......................................... 89
10.08 Subsidiaries Guaranty...................................... 90
10.09 Judgments.................................................. 90
10.10 Ownership.................................................. 90
SECTION 11. Definitions............................................... 90
SECTION 12. The Agents................................................ 123
12.01 Appointment................................................ 123
12.02 Delegation of Duties....................................... 124
12.03 Exculpatory Provisions..................................... 124
12.04 Reliance by Agents......................................... 124
12.05 Notice of Default.......................................... 125
12.06 Nonreliance on Agents and Other Banks...................... 125
12.07 Indemnification............................................ 126
12.08 Agents in their Individual Capacities...................... 126
12.09 Holders.................................................... 127
12.10 Resignation of the Agents.................................. 127
SECTION 13. Miscellaneous............................................. 128
13.01 Payment of Expenses, etc................................... 128
13.02 Right of Setoff............................................ 129
13.03 Notices.................................................... 129
13.04 Benefit of Agreement....................................... 129
13.05 No Waiver; Remedies Cumulative............................. 132
13.06 Payments Pro Rata.......................................... 132
13.07 Calculations; Computations................................. 132
13.08 Governing Law; Submission to Jurisdiction; Venue........... 133
13.09 Counterparts............................................... 134
13.10 Effectiveness.............................................. 134
13.11 Headings Descriptive....................................... 134
13.12 Amendment or Waiver; etc................................... 134
13.13 Survival................................................... 136
13.14 Domicile of Loans and Commitments.......................... 136
13.15 Confidentiality............................................ 136
13.16 Waiver of Jury Trial....................................... 136
13.17 Register................................................... 136
13.18 Limitation on Additional Amounts, etc...................... 137
13.19 Certain Agreements with Respect to the Convertible
Subordinated Notes......................................... 137
13.20 Post-Closing Actions....................................... 138
SCHEDULE I List of Banks and Commitments
SCHEDULE II Bank Addresses
(iv)
<PAGE>
SCHEDULE III Real Properties
SCHEDULE IV Existing Indebtedness
SCHEDULE V Pension Plans
SCHEDULE VI Existing Investments
SCHEDULE VII Subsidiaries
SCHEDULE VIII Insurance
SCHEDULE IX Existing Liens
SCHEDULE X Capitalization
EXHIBIT A - Form of Notice of Borrowing
EXHIBIT B-1 - Form of Tranche A Term Note
EXHIBIT B-2 - Form of Tranche B Term Note
EXHIBIT B-3 - Form of Revolving Note
EXHIBIT B-4 - Form of Swingline Note
EXHIBIT C - Form of Letter of Credit Request
EXHIBIT D - Form of Section 4.04(b)(ii) Certificate
EXHIBIT E-1 - Form of Opinion of Morgan, Lewis & Bockius, LLP,
special counsel to the Credit Parties
EXHIBIT E-2 - Form of Opinion of O'Sullivan Graev & Karabell LLP,
special counsel to the Credit Parties
EXHIBIT F - Form of Officers' Certificate
EXHIBIT G - Form of Pledge Agreement
EXHIBIT H - Form of Security Agreement
EXHIBIT I - Form of Subsidiaries Guaranty
EXHIBIT J - Form of Consent Letter
EXHIBIT K - Form of Solvency Certificate
EXHIBIT L - Form of Assignment and Assumption Agreement
EXHIBIT M - Form of Intercompany Note
EXHIBIT N - Form of Shareholder Subordinated Note
EXHIBIT O-1 - Form of Tranche B Term Loan Commitment Agreement
EXHIBIT O-2 - Form of Additional Revolving Loan Commitment Agreement
(v)
<PAGE>
CREDIT AGREEMENT, dated as of April 30, 1999, among BUILDING ONE
SERVICES CORPORATION, a Delaware corporation (the "Borrower"), the lenders from
time to time party hereto (each, a "Bank" and, collectively, the "Banks"),
GOLDMAN SACHS CREDIT PARTNERS L.P., as Documentation Agent (in such capacity,
the "Documentation Agent"), SALOMON SMITH BARNEY INC., as Syndication Agent (in
such capacity, the "Syndication Agent"), and BANKERS TRUST COMPANY, as
Administrative Agent (in such capacity, the "Administrative Agent" and, together
with the Documentation Agent and the Syndication Agent, each, an "Agent" and
collectively the "Agents"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 11 are used herein as so defined.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Banks are willing to make available to the Borrower the credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
--------------------------
1.01 Commitments. (a) Subject to and upon the terms and conditions
-----------
set forth herein, each Bank with a Tranche A Term Loan Commitment severally
agrees to make a term loan (each, a "Tranche A Term Loan" and, collectively, the
"Tranche A Term Loans") to the Borrower, which Tranche A Term Loans:
(i) shall be incurred by the Borrower pursuant to a single drawing
on the Initial Borrowing Date for the purposes described in Section
7.05(a);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided, that (x) except as otherwise
--------
specifically provided in Section 1.10(b), all Tranche A Term Loans made as
part of the same Borrowing shall at all times consist of Tranche A Term
Loans of the same Type and (y) unless the Administrative Agent has
determined that the Syndication Date has occurred (at which time this
clause (y) shall no longer be applicable), no more than three Borrowings of
Tranche A Term Loans to be maintained as Eurodollar Loans may be incurred
prior to the 90th day after the Initial Borrowing Date (or, if later, the
last day of the Interest Period applicable to the third Borrowing of
Eurodollar Loans referred to below), each of which Borrowings of Eurodollar
Loans may only have an Interest Period of one month, and the first of which
Borrowings may only be made on, or within five Business Days after, the
Initial Borrowing Date, the second of which Borrowings may only be made on
the last day of the Interest Period of the first such Borrowing and the
third of which Borrowings may only be made on the last day of the Interest
Period of the second such Borrowing; and
(iv) shall be made by each Bank in that initial aggregate principal
amount as is equal to the Tranche A Term Loan Commitment of such Bank on
the Initial Borrowing
<PAGE>
Date (before giving effect to the termination thereof on such date pursuant
to Section 3.03(b)).
Once repaid, Tranche A Term Loans incurred hereunder may not be reborrowed.
(b) Subject to and upon the terms and conditions herein set forth
(including, on and after the initial Additional Revolving Loan Commitment Date,
Section 1.14), each RL Bank severally agrees, at any time and from time to time
on and after the Initial Borrowing Date and prior to the Revolving Loan Maturity
Date, to make a revolving loan or revolving loans (each, a "Revolving Loan" and,
collectively, the "Revolving Loans") to the Borrower, which Revolving Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall, at the option of the Borrower, be incurred and maintained
as, and/or converted into, Base Rate Loans or Eurodollar Loans, provided
--------
that (x) except as otherwise specifically provided in Section 1.10(b), all
Revolving Loans made as part of the same Borrowing shall at all times be of
the same Type and (y) unless the Administrative Agent has determined that
the Syndication Date has occurred, no more than three Borrowings of
Revolving Loans to be maintained as Eurodollar Loans may be incurred prior
to the 90th day after the Initial Borrowing Date (or, if later, the last
day of the Interest Period applicable to the third Borrowing of Eurodollar
Loans referred to below), each of which Borrowings of Eurodollar Loans may
only have an Interest Period of one month, and the first of which
Borrowings may only be made on the same date as the initial Borrowing of
Tranche A Term Loans that are maintained as Eurodollar Loans, the second of
which Borrowings may only be made on the last day of the Interest Period of
the first such Borrowing and the third of which Borrowings may only be made
on the last day of the Interest Period of the second such Borrowing;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which, when added to the product of (x) such
Bank's RL Percentage and (y) the sum of (I) the aggregate amount of all
Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (II) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, equals the Revolving Loan Commitment of such Bank at such
time; and
(v) shall not exceed for all Banks at any time outstanding that
aggregate principal amount which, when added to (x) the aggregate amount of
all Letter of Credit Outstandings (exclusive of Unpaid Drawings which are
repaid with the proceeds of, and simultaneously with the incurrence of, the
respective incurrence of Revolving Loans) at such time and (y) the
aggregate principal amount of all Swingline Loans (exclusive of Swingline
Loans which are repaid with the proceeds of, and simultaneously with the
-2-
<PAGE>
incurrence of, the respective incurrence of Revolving Loans) then
outstanding, exceeds an amount equal to the Total Revolving Loan Commitment
then in effect.
(c) Subject to and upon the terms and conditions set forth herein,
BTCo in its individual capacity agrees to make at any time and from time to time
on and after the Initial Borrowing Date and prior to the Swingline Expiry Date,
a revolving loan or revolving loans to the Borrower (each, a "Swingline Loan"
and, collectively, the "Swingline Loans"), which Swingline Loans:
(i) shall be denominated in U.S. Dollars;
(ii) shall be made and maintained as Base Rate Loans;
(iii) may be repaid and reborrowed in accordance with the provisions
hereof;
(iv) shall not exceed in aggregate principal amount at any time
outstanding, when combined with (x) the aggregate principal amount of all
Revolving Loans then outstanding and (y) the aggregate amount of all Letter
of Credit Outstandings at such time, an amount equal to the Total Revolving
Loan Commitment at such time (after giving effect to any changes thereto on
such date); and
(v) shall not exceed in aggregate principal amount at any time
outstanding the Maximum Swingline Amount.
Notwithstanding anything contained in this Section 1.01(c), (i) BTCo shall not
be obligated to make any Swingline Loans at a time when a Bank Default exists
unless BTCo has entered into arrangements satisfactory to it and the Borrower to
eliminate BTCo's risk with respect to the Defaulting Bank's or Banks'
participation in such Swingline Loans, including by cash collateralizing such
Defaulting Bank's or Banks' RL Percentage of the outstanding Swingline Loans and
(ii) BTCo will not make a Swingline Loan after it has received written notice
from the Borrower or the Required Banks stating that a Default or an Event of
Default exists until such time as BTCo shall have received a written notice of
(i) rescission of such notice from the party or parties originally delivering
the same or (ii) a waiver of such Default or Event of Default from the Required
Banks.
(d) On any Business Day, BTCo may, in its sole discretion, give
notice to the RL Banks that its outstanding Swingline Loans shall be funded with
a Borrowing of Revolving Loans (provided that each such notice shall be deemed
--------
to have been automatically given upon the occurrence of a Default or an Event of
Default under Section 10.05 or upon the exercise of any of the remedies provided
in the last paragraph of Section 10), in which case a Borrowing of Revolving
Loans constituting Base Rate Loans (each such Borrowing, a "Mandatory
Borrowing") shall be made on the immediately succeeding Business Day by all RL
Banks pro rata based on each RL Bank's RL Percentage (determined before giving
--- ----
effect to any termination of the Revolving Loan Commitments pursuant to the last
paragraph of Section 10), and the proceeds thereof shall be applied directly to
repay BTCo for such outstanding Swingline Loans. Each RL Bank hereby
irrevocably agrees to make Revolving Loans upon one Business Day's notice
pursuant to each Mandatory Borrowing in the amount and in the manner specified
in the preceding sentence and on the date specified in writing by BTCo
notwithstanding (i) that the
-3-
<PAGE>
amount of the Mandatory Borrowing may not comply with the Minimum Borrowing
Amount otherwise required hereunder, (ii) whether any conditions specified in
Section 5 or 6 are then satisfied, (iii) whether a Default or an Event of
Default has occurred and is continuing, (iv) the date of such Mandatory
Borrowing and (v) the amount of the Total Revolving Loan Commitment at such
time. In the event that any Mandatory Borrowing cannot for any reason be made on
the date otherwise required above (including, without limitation, as a result of
the commencement of a proceeding under the Bankruptcy Code with respect to the
Borrower), then each RL Bank (other than BTCo) hereby agrees that it shall
forthwith purchase from BTCo (without recourse or warranty) such assignment of
the outstanding Swingline Loans as shall be necessary to cause the RL Banks to
share in such Swingline Loans ratably based upon their respective RL Percentages
(determined before giving effect to any termination of the Revolving Loan
Commitments pursuant to the last paragraph of Section 10), provided that (x) all
--------
interest payable on the Swingline Loans shall be for the account of BTCo until
the date the respective assignment is purchased and, to the extent attributable
to the purchased assignment, shall be payable to the RL Bank purchasing same
from and after such date of purchase (or, if earlier, from the date on which the
Mandatory Borrowing would otherwise have occurred, so long as the payments
required by following clause (y) have in fact been made) and (y) at the time any
purchase of assignments pursuant to this sentence is actually made, the
purchasing RL Bank shall be required to pay BTCo interest on the principal
amount of assignment purchased for each day from and including the day upon
which the Mandatory Borrowing would otherwise have occurred to but excluding the
date of payment for such assignment, at the rate otherwise applicable to
Revolving Loans maintained as Base Rate Loans hereunder for each day thereafter.
(e) Subject to Section 1.14 and the other terms and conditions set
forth herein, each Bank with a Tranche B Term Loan Commitment severally agrees
to make on each Tranche B Term Loan Commitment Date a term loan (each, a
"Tranche B Term Loan" and, collectively, the "Tranche B Term Loans") to the
Borrower, which Tranche B Term Loans:
(i) shall be incurred by the Borrower on such Tranche B Term Loan
Commitment Date for the purposes described in Section 7.05(c);
(ii) shall be denominated in U.S. Dollars;
(iii) except as hereafter provided, shall, at the option of the
Borrower, be incurred and maintained as, and/or converted into, Base Rate
Loans or Eurodollar Loans, provided, that except as otherwise specifically
--------
provided in Section 1.10(b), all Tranche B Term Loans made as part of the
same Borrowing shall at all times consist of Tranche B Term Loans of the
same Type; and
(iv) shall be made by each such Bank in that initial aggregate
principal amount as is equal to the Tranche B Term Loan Commitment of such
Bank on such Tranche B Term Loan Commitment Date (before giving effect to
the termination thereof on such date pursuant to Section 3.03(c)).
Once repaid, Tranche B Term Loans incurred hereunder may not be reborrowed.
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<PAGE>
1.02 Minimum Borrowing Amounts, etc. The aggregate principal amount
-------------------------------
of each Borrowing of Loans under a respective Tranche shall not be less than the
Minimum Borrowing Amount applicable to such Tranche, provided that Mandatory
--------
Borrowings shall be made in the amounts required by Section 1.01(d). More than
one Borrowing may be incurred on any day, provided, that at no time shall there
--------
be outstanding more than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to make
-------------------
a Borrowing of Loans hereunder (excluding Borrowings of Swingline Loans and
Mandatory Borrowings), it shall give the Administrative Agent at its Notice
Office, prior to 12:00 Noon (New York time), at least three Business Days' prior
written notice (or telephonic notice promptly confirmed in writing) of each
Borrowing of Eurodollar Loans and at least one Business Day's prior written
notice (or telephonic notice promptly confirmed in writing) of each Borrowing of
Base Rate Loans to be made hereunder. Each such written notice or written
confirmation of telephonic notice (each, a "Notice of Borrowing") shall, except
as otherwise expressly provided in Section 1.10, be irrevocable, and, in the
case of each written notice and each confirmation of telephonic notice, shall be
given by an Authorized Officer of the Borrower in the form of Exhibit A,
appropriately completed to specify: (i) the aggregate principal amount of the
Loans to be made pursuant to such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) whether the respective Borrowing shall
consist of Tranche A Term Loans, Tranche B Term Loans or Revolving Loans, (iv)
whether the respective Borrowing shall consist of Base Rate Loans or, to the
extent permitted hereunder, Eurodollar Loans and, if Eurodollar Loans, the
Interest Period to be initially applicable thereto and (v) in the case of a
Borrowing of Revolving Loans the proceeds of which are to be utilized to
finance, in whole or in part, the purchase price of a Permitted Acquisition, (x)
a reference to the officer's certificate, if any, delivered in accordance with
Section 8.14, (y) the aggregate principal amount of such Revolving Loans to be
utilized in connection with such Permitted Acquisition and (z) the Total
Unutilized Revolving Loan Commitment then in effect after giving effect to the
respective Permitted Acquisition (and all payments to be made in connection
therewith). The Administrative Agent shall promptly give each Bank which is
required to make Loans of the Tranche specified in the respective Notice of
Borrowing, written notice (or telephonic notice promptly confirmed in writing)
of each proposed Borrowing, of such Bank's proportionate share thereof and of
the other matters required by the immediately preceding sentence to be specified
in the Notice of Borrowing.
(b) (i) Whenever the Borrower desires to incur Swingline Loans
hereunder, it shall give BTCo not later than 12:00 Noon (New York time) on the
day such Swingline Loan is to be made, written notice (or telephonic notice
promptly confirmed in writing) of each Swingline Loan to be made hereunder.
Each such notice shall be irrevocable and shall specify in each case (x) the
date of such Borrowing (which shall be a Business Day) and (y) the aggregate
principal amount of the Swingline Loan to be made pursuant to such Borrowing.
(ii) Mandatory Borrowings shall be made upon the notice (or deemed
notice) specified in Section 1.01(d), with the Borrower irrevocably agreeing, by
its incurrence of any Swingline Loan, to the making of Mandatory Borrowings as
set forth in such Section 1.01(d).
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<PAGE>
(c) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
the Letter of Credit Issuer (in the case of the issuance of Letters of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent, BTCo or the Letter of Credit Issuer, as the case may be,
in good faith to be from an Authorized Officer of the Borrower. In each such
case, the Administrative Agent's, BTCo's or the respective Letter of Credit
Issuer's, as the case may be, record of the terms of such telephonic notice
shall be conclusive evidence of the contents of such notice, absent manifest
error.
1.04 Disbursement of Funds. (a) Not later than 1:00 P.M. (New York
---------------------
time) on the date specified in each Notice of Borrowing (or (x) in the case of
Swingline Loans, not later than 2:00 P.M. (New York time) on the date specified
in Section 1.03(b)(i) or (y) in the case of Mandatory Borrowings, not later than
12:00 Noon (New York time) on the date specified in Section 1.01(d)), each Bank
with a Commitment under the respective Tranche will make available its pro rata
--- ----
share (determined in accordance with Section 1.07), if any, of each Borrowing
requested to be made on such date (or in the case of Swingline Loans, BTCo shall
make available the full amount thereof) in the manner provided below. All
amounts shall be made available to the Administrative Agent in U.S. Dollars and
in immediately available funds at the Payment Office and the Administrative
Agent promptly will make available to the Borrower by depositing to its account
at the Payment Office the aggregate of the amounts so made available in the type
of funds received. Unless the Administrative Agent shall have been notified by
any Bank prior to the date of Borrowing that such Bank does not intend to make
available to the Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that such Bank has
made such amount available to the Administrative Agent on such date of
Borrowing, and the Administrative Agent, in reliance upon such assumption, may
(in its sole discretion and without any obligation to do so) make available to
the Borrower a corresponding amount. If such corresponding amount is not in
fact made available to the Administrative Agent by such Bank and the
Administrative Agent has made available same to the Borrower, the Administrative
Agent shall be entitled to recover such corresponding amount on demand from such
Bank. If such Bank does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent shall promptly
notify the Borrower, and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The Administrative Agent shall also be
entitled to recover on demand from such Bank or the Borrower, as the case may
be, interest on such corresponding amount in respect of each day from the date
such corresponding amount was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered by the
Administrative Agent, at a rate per annum equal to (x) if paid by such Bank, the
overnight Federal Funds Rate or (y) if paid by the Borrower, the then applicable
rate of interest, calculated in accordance with Section 1.08.
(b) Nothing in this Agreement shall be deemed to relieve any Bank from
its obligation to fulfill its commitments hereunder or to prejudice any rights
which the Borrower may have against any Bank as a result of any default by such
Bank hereunder.
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<PAGE>
1.05 Notes. (a) The Borrower's obligation to pay the principal of,
-----
and interest on, all the Loans made to it by each Bank shall be set forth on the
Register maintained by the Administrative Agent pursuant to Section 13.17 and,
subject to the provisions of Section 1.05(g), shall be evidenced (i) if Tranche
A Term Loans, by a promissory note substantially in the form of Exhibit B-1 with
blanks appropriately completed in conformity herewith (each, a "Tranche A Term
Note" and, collectively, the "Tranche A Term Notes"), (ii) if Tranche B Term
Loans, by a promissory note substantially in the form of Exhibit B-2 with blanks
appropriately completed in conformity herewith (each, a "Tranche B Term Note"
and, collectively, the "Tranche B Term Notes"), (iii) if Revolving Loans, by a
promissory note substantially in the form of Exhibit B-3 with blanks
appropriately completed in conformity herewith (each, a "Revolving Note" and,
collectively, the "Revolving Notes") and (iv) if Swingline Loans, by a
promissory note substantially in the form of Exhibit B-4 with blanks
appropriately completed in conformity herewith (the "Swingline Note").
(b) The Tranche A Term Note issued to each Bank with a Tranche A Term
Loan Commitment shall (i) be executed by the Borrower, (ii) be payable to such
Bank or its registered assigns and be dated the Initial Borrowing Date (or, in
the case of any Tranche A Term Note issued after the Initial Borrowing Date, the
date of issuance thereof), (iii) be in a stated principal amount equal to the
Tranche A Term Loan Commitment of such Bank on the Initial Borrowing Date (or,
in the case of any Tranche A Term Note issued after the Initial Borrowing Date,
in a stated principal amount equal to the outstanding principal amount of the
Tranche A Term Loan of such Bank on the date of the issuance thereof) and be
payable in the principal amount of Tranche A Term Loans evidenced thereby from
time to time, (iv) mature on the Tranche A Term Loan Maturity Date, (v) bear
interest as provided in the appropriate clause of Section 1.08 in respect of the
Base Rate Loans and Eurodollar Loans, as the case may be, evidenced thereby,
(vi) be subject to voluntary repayment as provided in Section 4.01 and mandatory
repayment as provided in Section 4.02 and (vii) be entitled to the benefits of
this Agreement and the other Credit Documents.
(c) The Tranche B Term Note issued to each Bank with a Tranche B Term
Loan Commitment and/or outstanding Tranche B Term Loans shall (i) be executed by
the Borrower, (ii) be payable to such Bank or its registered assigns and be
dated the date of issuance thereof, (iii) be in a stated principal amount equal
to the Tranche B Term Loan Commitment of such Bank on the Tranche B Term Loan
Commitment Date on which such Tranche B Term Loan Commitment becomes effective
(or, in the case of any Tranche B Term Note issued after such Tranche B Term
Loan Commitment Date, in a stated principal amount equal to the outstanding
principal amount of the Tranche B Term Loan of such Bank on the date of the
issuance thereof) and be payable in the principal amount of Tranche B Term Loans
evidenced thereby from time to time, (iv) mature on the Tranche B Term Loan
Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary repayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(d) The Revolving Note issued to each RL Bank shall (i) be executed
by the Borrower, (ii) be payable to such RL Bank or its registered assigns and
be dated the date of issuance thereof, (iii) be in a stated principal amount
equal to the Revolving Loan Commitment
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<PAGE>
of such RL Bank and be payable in the principal amount of the outstanding
Revolving Loans evidenced thereby, (iv) mature on the Revolving Loan Maturity
Date, (v) bear interest as provided in the appropriate clause of Section 1.08 in
respect of the Base Rate Loans and Eurodollar Loans, as the case may be,
evidenced thereby, (vi) be subject to voluntary prepayment as provided in
Section 4.01 and mandatory repayment as provided in Section 4.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(e) The Swingline Note issued to BTCo shall (i) be executed by the
Borrower, (ii) be payable to BTCo or its registered assigns and be dated the
Initial Borrowing Date, (iii) be in a stated principal amount equal to the
Maximum Swingline Amount and be payable in the principal amount of the
outstanding Swingline Loans evidenced thereby, (iv) mature on the Swingline
Expiry Date, (v) bear interest as provided in Section 1.08 in respect of the
Base Rate Loans evidenced thereby, (vi) be subject to voluntary prepayment as
provided in Section 4.01 and mandatory repayment as provided in Section 4.02 and
(vii) be entitled to the benefits of this Agreement and the other Credit
Documents.
(f) Each Bank will note on its internal records the amount of each
Loan made by it and each payment in respect thereof and will prior to any
transfer of any of its Notes endorse on the reverse side thereof the outstanding
principal amount of Loans evidenced thereby. Failure to make any such notation
or any error in such notation shall not affect the Borrower's obligations in
respect of such Loans.
(g) Notwithstanding anything to the contrary contained above or
elsewhere in this Agreement, Notes shall only be delivered to Banks which at any
time specifically request the delivery of such Notes. No failure of any Bank to
request or obtain a Note evidencing its Loans to the Borrower shall affect or in
any manner impair the obligations of the Borrower to pay the Loans (and all
related Obligations) which would otherwise be evidenced thereby in accordance
with the requirements of this Agreement, and shall not in any way affect the
security or guaranties therefor provided pursuant to the various Credit
Documents. Any Bank which does not have a Note evidencing its outstanding Loans
shall in no event be required to make the notations otherwise described in
preceding clause (f). At any time when any Bank requests the delivery of a Note
to evidence any of its Loans, the Borrower shall promptly execute and deliver to
the respective Bank the requested Note in the appropriate amount or amounts to
evidence such Loans.
1.06 Conversions. The Borrower shall have the option to convert on
-----------
any Business Day occurring on or after the Initial Borrowing Date, all or a
portion at least equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of Loans (other than Swingline Loans, which shall
at all times be maintained as Base Rate Loans) made pursuant to one or more
Borrowings of one or more Types of Loans under a single Tranche into a Borrowing
or Borrowings of another Type of Loan under such Tranche; provided, that (i)
--------
except as otherwise provided in Section 1.10(b) or unless the Borrower pays all
breakage costs and other amounts owing to each Bank pursuant to Section 1.11
concurrently with any such conversion, Eurodollar Loans may be converted into
Base Rate Loans only on the last day of an Interest Period applicable to the
Loans being converted, and no partial conversion of a Borrowing of Eurodollar
Loans shall reduce the outstanding principal amount of the Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing Amount applicable
thereto, (ii)
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<PAGE>
unless the Required Lenders otherwise agree, Base Rate Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion, (iii) unless the Administrative Agent
has determined that the Syndication Date has occurred (at which time this clause
(iii) shall no longer be applicable), prior to the 90th day after the Initial
Borrowing Date, conversions of Base Rate Loans into Eurodollar Loans may only be
made if any such conversion is effective on the first day of the first, second
or third Interest Period referred to in clause (y) of each of Sections
1.01(a)(iii) and 1.01(b)(ii) and so long as such conversion does not result in a
greater number of Borrowings of Eurodollar Loans prior to the 90th day after the
Initial Borrowing Date as are permitted under each of Sections 1.01(a)(iii) and
1.01(b)(ii) and (iv) Borrowings of Eurodollar Loans resulting from this Section
1.06 shall be limited in number as provided in Section 1.02. Each such
conversion shall be effected by the Borrower by giving the Administrative Agent
at its Notice Office, prior to 12:00 Noon (New York time), at least three
Business Days' (or one Business Day's in the case of a conversion into Base Rate
Loans) prior written notice (or telephonic notice promptly confirmed in writing)
(each, a "Notice of Conversion") specifying the Loans to be so converted, the
Borrowing(s) pursuant to which the Loans were made and, if to be converted into
a Borrowing of Eurodollar Loans, the Interest Period to be initially applicable
thereto. The Administrative Agent shall give each Bank prompt notice of any such
proposed conversion affecting any of its Loans. Upon any such conversion, the
proceeds thereof will be deemed to be applied directly on the day of such
conversion to prepay the outstanding principal amount of the Loans being
converted.
1.07 Pro Rata Borrowings. All Borrowings of Tranche A Term Loans,
-------------------
Tranche B Term Loans and Revolving Loans under this Agreement shall be incurred
by the Borrower from the Banks pro rata on the basis of such Banks' Tranche A
--- ----
Term Loan Commitments, Tranche B Term Loan Commitments or Revolving Loan
Commitments, as the case may be, in each case as in effect on the date of the
respective Borrowing; provided that all Borrowings of Revolving Loans made
--------
pursuant to a Mandatory Borrowing shall be incurred from the RL Banks pro rata
--- ----
on the basis of their respective RL Percentages. It is understood that no Bank
shall be responsible for any default by any other Bank of its obligation to make
Loans hereunder and that each Bank shall be obligated to make the Loans to be
made by it hereunder, regardless of the failure of any other Bank to fulfill its
commitments hereunder.
1.08 Interest. (a) The unpaid principal amount of each Base Rate
--------
Loan shall bear interest from the date of the Borrowing thereof until the
earlier of (i) the maturity (whether by acceleration or otherwise) of such Base
Rate Loan and (ii) the conversion of such Base Rate Loan to a Eurodollar Loan
pursuant to Section 1.06, at a rate per annum which shall at all times be the
relevant Applicable Margin plus the Base Rate, each as in effect from time to
----
time.
(b) The unpaid principal amount of each Eurodollar Loan shall bear
interest from the date of the Borrowing thereof until the earlier of (i) the
maturity (whether by acceleration or otherwise) of such Eurodollar Loan and (ii)
the conversion of such Eurodollar Loan to a Base Rate Loan pursuant to Section
1.06, 1.09 or 1.10(b), as applicable, at a rate per annum which shall at all
times be the relevant Applicable Margin plus the Eurodollar Rate for such
----
Interest Period, each as in effect from time to time.
(c) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan shall bear interest at a rate per annum equal
to the greater of (x) the rate
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<PAGE>
which is 2% in excess of the rate borne by the respective such Loans immediately
prior to the respective payment default and (y) the rate which is 2% in excess
of the rate otherwise applicable to Base Rate Loans from time to time. Interest
which accrues under this Section 1.08(c) shall be payable on demand.
(d) Interest shall accrue from and including the date of any
Borrowing to but excluding the date of any repayment thereof and shall be
payable (i) in respect of each Base Rate Loan, quarterly in arrears on each
Quarterly Payment Date, (ii) in respect of each Eurodollar Loan, on (x) the date
of any conversion into a Base Rate Loan pursuant to Section 1.06, 1.09 or
1.10(b), as applicable (on the amount converted) and (y) the last day of each
Interest Period applicable thereto and, in the case of an Interest Period in
excess of three months, on each date occurring at three month intervals after
the first day of such Interest Period and (iii) in respect of each Loan, on (x)
the date of any prepayment or repayment thereof (on the amount prepaid or
repaid), (y) at maturity (whether by acceleration or otherwise) and (z) after
such maturity, on demand.
(e) All computations of interest hereunder shall be made in
accordance with Section 13.07(b).
(f) Upon each Interest Determination Date, the Administrative Agent
shall determine the Eurodollar Rate for the respective Interest Period or
Interest Periods and shall promptly notify the Borrower and the Banks thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives a Notice of
----------------
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, a Borrowing of Eurodollar Loans (in the case of the initial Interest
Period applicable thereto) or prior to 12:00 Noon (New York time) on the third
Business Day prior to the expiration of an Interest Period applicable to a
Borrowing of Eurodollar Loans (in the case of any subsequent Interest Period),
the Borrower shall have the right to elect by giving the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of the
Interest Period applicable to such Borrowing, which Interest Period shall, at
the option of the Borrower (but otherwise subject to clause (y) of the proviso
to Sections 1.01(a)(iii) and 1.01(b)(ii) and to clause (iii) of the proviso to
Section 1.06), be a one, two, three, six or, to the extent available to each
Bank with outstanding Loans and/or Commitments under the respective Tranche,
nine or twelve month period. Notwithstanding anything to the contrary contained
above:
(i) all Eurodollar Loans comprising a Borrowing shall at all times
have the same Interest Period;
(ii) the initial Interest Period for any Borrowing of Eurodollar Loans
shall commence on the date of such Borrowing (including the date of any
conversion from a Borrowing of Base Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day
on which the next preceding Interest Period applicable thereto expires;
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<PAGE>
(iii) if any Interest Period for any Borrowing of Eurodollar Loans
begins on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period, such Interest Period
shall end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day, provided, that if any Interest Period for any
--------
Borrowing of Eurodollar Loans would otherwise expire on a day which is not
a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(v) no Interest Period for a Borrowing under a Tranche shall be
selected which would extend beyond the respective Maturity Date for such
Tranche;
(vi) no Interest Period may be elected at any time when a Default or
an Event of Default is then in existence; and
(vii) no Interest Period in respect of any Borrowing of Tranche A
Term Loans or Tranche B Term Loans shall be elected which extends beyond
any date upon which a Scheduled Repayment of such Tranche of Term Loans
will be required to be made under Section 4.02(b) if, after giving effect
to the election of such Interest Period, the aggregate principal amount of
such Tranche A Term Loans or Tranche B Term Loans, as the case may be,
which have Interest Periods which will expire after such date will be in
excess of the aggregate principal amount of such Tranche A Term Loans or
Tranche B Term Loans, as the case may be, then outstanding less the
aggregate amount of such required Scheduled Repayment.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, the Borrower has failed to elect, or is not
permitted to elect, a new Interest Period to be applicable to the respective
Borrowing of Eurodollar Loans as provided above, the Borrower shall be deemed to
have elected to convert such Borrowing into a Borrowing of Base Rate Loans
effective as of the expiration date of such current Interest Period.
1.10 Increased Costs; Illegality; etc. (a) In the event that (x) in
---------------------------------
the case of clause (i) below, the Administrative Agent or (y) in the case of
clauses (ii) and (iii) below, any Bank, shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on any Interest Determination Date, that, by reason of any changes
arising after Effective Date affecting the interbank Eurodollar market,
adequate and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of Eurodollar
Rate; or
(ii) at any time, that such Bank shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loans because of (x) any change since the date of this
Agreement in any applicable law, governmental rule, regulation, guideline,
order or request (whether or not having the force of law), or in
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the interpretation or administration thereof and including the introduction
of any new law or governmental rule, regulation, guideline, order or
request, such as, for example, but not limited to, (A) a change in the
basis of taxation of payment to any Bank of the principal of or interest on
such Eurodollar Loans or any other amounts payable hereunder (except for
changes with respect to any tax imposed on, or determined by reference to,
the net income, net profits or capital (including branch profits tax) of
such Bank or any franchise tax based on the net income or net profits of
such Bank pursuant to the laws of the jurisdiction in which such Bank is
organized, or in which such Bank's principal office or applicable lending
office is located or any subdivision thereof or therein), or (B) a change
in official reserve requirements, but, in all events, excluding reserves
required under Regulation D to the extent included in the computation of
the Eurodollar Rate and/or (y) other circumstances affecting such Bank, the
interbank Eurodollar market or the position of such Bank in such market; or
(iii) at any time since the date of this Agreement, that the making
or continuance of any Eurodollar Loan has become unlawful by compliance by
such Bank with any law, governmental rule, regulation, guideline or order
(or would conflict with any governmental rule, regulation, guideline,
request or order not having the force of law but with which such Bank
customarily complies even though the failure to comply therewith would not
be unlawful), or has become impracticable as a result of a contingency
occurring after the Effective Date which materially and adversely affects
the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and (except in the case of clause (i)) to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter, (x) in
the case of clause (i) above, Eurodollar Loans shall no longer be available
until such time as the Administrative Agent notifies the Borrower and the Banks
that the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (y)
in the case of clause (ii) above, the Borrower agrees, subject to the provisions
of Section 13.18 (to the extent applicable), to pay to such Bank, upon written
demand therefor, such additional amounts (in the form of an increased rate of,
or a different method of calculating, interest or otherwise as such Bank in its
sole discretion shall determine) as shall be required to compensate such Bank
for such increased costs or reductions in amounts received or receivable
hereunder but without duplication of any payments due under Section 4.04 (a
written notice as to the additional amounts owed to such Bank, showing in
reasonable detail the basis for the calculation thereof, submitted to the
Borrower by such Bank shall, absent manifest error, be final and conclusive and
binding upon all parties hereto, although the failure to give any such notice
shall not release or diminish any of the Borrower's obligations to pay
additional amounts pursuant to this Section 1.10(a) upon the subsequent receipt
of such notice) and (z) in the case of clause (iii) above, the Borrower shall
take one of the actions specified in Section 1.10(b) as promptly as possible
and, in any event, within the time period required by law.
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<PAGE>
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.10(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected pursuant to Section 1.10(a)(iii), the
Borrower shall) either (i) if the affected Eurodollar Loan is then being made
pursuant to a Borrowing, cancel said Borrowing by giving the Administrative
Agent telephonic notice (confirmed promptly in writing) thereof on the same date
that the Borrower was notified by a Bank pursuant to Section 1.10(a)(ii) or
(iii)), or (ii) if the affected Eurodollar Loan is then outstanding, upon at
least three Business Days' notice to the Administrative Agent, require the
affected Bank to convert each such Eurodollar Loan into a Base Rate Loan (which
conversion, in the case of the circumstance described in Section 1.10(a)(iii),
shall occur no later than the last day of the Interest Period then applicable to
such Eurodollar Loan or such earlier day as shall be required by applicable
law); provided, that if more than one Bank is affected at any time, then all
--------
affected Banks must be treated the same pursuant to this Section 1.10(b).
(c) If any Bank shall have determined that after the Effective Date,
the adoption or effectiveness of any applicable law, rule or regulation
regarding capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank or any corporation controlling such Bank
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Bank's or such
other corporation's capital or assets as a consequence of such Bank's Commitment
or Commitments hereunder or its obligations hereunder to a level below that
which such Bank or such other corporation could have achieved but for such
adoption, effectiveness, change or compliance (taking into consideration such
Bank's or such other corporation's policies with respect to capital adequacy),
then from time to time, upon written demand by such Bank (with a copy to the
Administrative Agent), accompanied by the notice referred to in the last
sentence of this clause (c), the Borrower agrees, subject to the provisions of
Section 13.18 (to the extent applicable), to pay to such Bank such additional
amount or amounts as will compensate such Bank or such other corporation for
such reduction in the rate of return to such Bank or such other corporation.
Each Bank, upon determining in good faith that any additional amounts will be
payable pursuant to this Section 1.10(c), will give prompt written notice
thereof to the Borrower (a copy of which shall be sent by such Bank to the
Administrative Agent), which notice shall set forth in reasonable detail the
basis of the calculation of such additional amounts, although the failure to
give any such notice shall not release or diminish the Borrower's obligations to
pay additional amounts pursuant to this Section 1.10(c) upon the subsequent
receipt of such notice. A Bank's reasonable good faith determination of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto.
1.11 Compensation. The Borrower agrees, subject to the provisions of
------------
Section 13.18 (to the extent applicable), to compensate each Bank, promptly upon
its written request (which request shall set forth in reasonable detail the
basis for requesting such compensation), for all losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by such Bank to fund its Eurodollar Loans) which such Bank may sustain:
(i) if for any reason (other than a default by such Bank or any Agent) a
Borrowing of, or conversion
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from or into, Eurodollar Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion given by the Borrower (whether or
not withdrawn by the Borrower or deemed withdrawn pursuant to Section 1.10(a));
(ii) if any repayment (including any repayment made pursuant to Section 4.01 or
4.02 or as a result of an acceleration of the Loans pursuant to Section 10 or as
a result of the replacement of a Bank pursuant to Section 1.13 or 13.12(b)) or
conversion of any Eurodollar Loans of the Borrower occurs on a date which is not
the last day of an Interest Period applicable thereto; (iii) if any prepayment
of any Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay its Eurodollar Loans when required by the terms
of this Agreement or (y) an election made by the Borrower pursuant to Section
1.10(b). Each Bank's calculation of the amount of compensation owing pursuant to
this Section 1.11 shall be made in good faith. A Bank's basis for requesting
compensation pursuant to this Section 1.11 and a Bank's calculation of the
amount thereof, shall, absent manifest error, be final and conclusive and
binding on all parties hereto.
1.12 Change of Lending Office. Each Bank agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 1.10(a)(ii) or
(iii), 1.10(c), 2.05 or 4.04 with respect to such Bank, it will, if requested by
the Borrower, use reasonable efforts (subject to overall policy considerations
of such Bank) to designate another lending office for any Loans or Letters of
Credit affected by such event; provided, that such designation is made on such
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terms that, in the sole judgment of such Bank, such Bank and its lending office
suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequences of the event giving rise to the operation of any such
Section. Nothing in this Section 1.12 shall affect or postpone any of the
obligations of the Borrower or the right of any Bank provided in Section 1.10,
2.05 or 4.04.
1.13 Replacement of Banks. (x) If any Bank becomes a Defaulting
--------------------
Bank, (y) upon the occurrence of any event giving rise to the operation of
Section 1.10(a)(ii) or (iii), Section 1.10(c), Section 2.05 or Section 4.04 with
respect to any Bank which results in such Bank charging to the Borrower
increased costs in a material amount in excess of those being generally charged
by the other Banks or (z) in the case of a refusal by a Bank to consent to a
proposed change, waiver, discharge or termination with respect to this Agreement
which has been approved by the Required Banks as provided in Section 13.12(b),
the Borrower shall have the right, in accordance with Section 13.04(b), if no
Default or Event of Default then exists or would exist after giving effect to
such replacement, to replace such Bank (the "Replaced Bank") with one or more
other Eligible Transferee or Transferees, none of whom shall constitute a
Defaulting Bank at the time of such replacement (collectively, the "Replacement
Bank") and each of whom shall be reasonably acceptable to the Administrative
Agent or, at the option of the Borrower, to replace only (a) the Revolving Loan
Commitment (and outstandings pursuant thereto) of the Replaced Bank with an
identical Revolving Loan Commitment provided by the Replacement Bank or (b) in
the case of a replacement as provided in Section 13.12(b) where the consent of
the respective Bank is required with respect to less than all Tranches of its
Loans or Commitments, the Commitments and/or outstanding Loans of such Bank in
respect of each Tranche where the consent of such Bank would otherwise be
individually required, with identical Commitments and/or Loans of the respective
Tranche provided by the Replacement Bank; provided that:
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<PAGE>
(i) at the time of any replacement pursuant to this Section 1.13, the
Replacement Bank shall enter into one or more Assignment and Assumption
Agreements pursuant to Section 13.04(b) (and with all fees payable pursuant
to said Section 13.04(b) to be paid by the Replacement Bank) pursuant to
which the Replacement Bank shall acquire all of the Commitments and
outstanding Loans (or, in the case of the replacement of only (a) the
Revolving Loan Commitment, the Revolving Loan Commitment and outstanding
Revolving Loans and participations in Letter of Credit Outstandings and/or
(b) the outstanding Term Loans of any Tranche, the outstanding Term Loans
of the respective Tranche or Tranches) of, and in each case (except for the
replacement of only the outstanding Term Loans of any or all Tranches of
Term Loans of the respective Bank) participations in Letters of Credit by,
the Replaced Bank and, in connection therewith, shall pay to (x) the
Replaced Bank in respect thereof an amount equal to the sum of (A) an
amount equal to the principal of, and all accrued interest on, all
outstanding Loans (or of the Loans of the respective Tranche being
replaced) of the Replaced Bank, (B) an amount equal to all Unpaid Drawings
(unless there are no Unpaid Drawings with respect to the Tranche being
replaced) that have been funded by (and not reimbursed to) such Replaced
Bank, together with all then unpaid interest with respect thereto at such
time and (C) an amount equal to all accrued, but theretofore unpaid, Fees
owing to the Replaced Bank (but only with respect to the relevant Tranche,
in the case of the replacement of less than all Tranches of Loans then held
by the respective Replaced Bank) pursuant to Section 3.01, (y) except in
the case of the replacement of only the outstanding Term Loans of one or
more Tranches of a Replaced Bank, each Letter of Credit Issuer an amount
equal to such Replaced Bank's RL Percentage of any Unpaid Drawing relating
to Letters of Credit issued by such Letter of Credit Issuer (which at such
time remains an Unpaid Drawing) to the extent such amount was not
theretofore funded by such Replaced Bank and (z) in the case of any
replacement of Revolving Loan Commitments, BTCo an amount equal to such
Replaced Bank's RL Percentage of any Mandatory Borrowing to the extent such
amount was not theretofore funded by such Replaced Bank; and
(ii) all obligations of the Borrower then owing to the Replaced Bank
(other than those (a) specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being,
paid, but including all amounts, if any, owing under Section 1.11 or (b)
relating to any Tranche of Loans and/or Commitments of the respective
Replaced Bank which will remain outstanding after giving effect to the
respective replacement) shall be paid in full to such Replaced Bank
concurrently with such replacement.
Upon the execution of the respective Assignment and Assumption Agreements, the
payment of amounts referred to in clauses (i) and (ii) above, recordation of the
assignment on the Register by the Administrative Agent pursuant to Section 13.17
and, if so requested by the Replacement Bank, delivery to the Replacement Bank
of the appropriate Note or Notes executed by the Borrower, (x) the Replacement
Bank shall become a Bank hereunder and, unless the respective Replaced Bank
continues to have outstanding Term Loans and/or a Revolving Loan Commitment
hereunder, the Replaced Bank shall cease to constitute a Bank hereunder, except
with respect to indemnification provisions under this Agreement (including,
without limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which
shall survive as to such Replaced Bank
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and (y) except in the case of the replacement of only outstanding Term Loans,
the RL Percentages of the Banks shall be automatically adjusted at such time to
give effect to such replacement.
1.14 Additional Commitments. (a) So long as the Additional Loan
----------------------
Commitment Requirements are satisfied at the time of the delivery of the written
notice referred to below, the Borrower shall have the right at any time and from
time to time and upon at least 30 days prior written notice to the
Administrative Agent, to request on one or more occasions that one or more Banks
(and/or one or more other Persons which will become Banks as provided below)
provide:
(I) Tranche B Term Loan Commitments and, subject to the applicable
terms and conditions contained in this Agreement and the relevant Tranche B
Term Loan Commitment Agreement, make Tranche B Term Loans pursuant thereto,
it being understood and agreed, however, that (i) no Bank shall be
obligated to provide a Tranche B Term Loan Commitment as a result of any
request by the Borrower, (ii) until such time, if any, as (x) such Bank has
agreed in its sole discretion to provide a Tranche B Term Loan Commitment
and executed and delivered to the Administrative Agent a Tranche B Term
Loan Commitment Agreement in respect thereof as provided in Section 1.14(b)
below and (y) the other conditions set forth in Section 1.14(b) shall have
been satisfied, such Bank shall not be obligated to fund any Tranche B Term
Loans, (iii) any Bank (or, in the circumstances contemplated by clause
(vii) below, any other Person which will qualify as an Eligible Transferee)
may so provide a Tranche B Term Loan Commitment without the consent of any
other Bank, (iv) each provision of Tranche B Term Loan Commitments pursuant
to this Section 1.14 on a given date, and the amount of each Tranche B Term
Loan Sub-Facility, shall be in a minimum aggregate amount (for all Banks
(including, in the circumstances contemplated by clause (vii) below,
Eligible Transferees who will become Banks)) of at least $20,000,000, (v)
the aggregate amount of all Tranche B Term Loan Commitments permitted to be
provided pursuant to this Section 1.14 and the aggregate principal amount
of Tranche B Term Loans permitted to be made pursuant to Section 1.01(e)
shall not, in either case, when added to the aggregate amount of all
Additional Revolving Loan Commitments permitted to be provided pursuant to
this Section 1.14, exceed $100,000,000, (vi) the up-front fees payable in
respect of the Tranche B Term Loan Commitments and Tranche B Term Loans
under a Tranche B Term Loan Sub-Facility shall be as set forth in the
Tranche B Term Loan Commitment Agreement for such Tranche B Term Loan Sub-
Facility, (vii) if, after the Borrower has requested the then existing
Banks (other than Defaulting Banks) to provide Tranche B Term Loan
Commitments pursuant to this Section 1.14 on the terms to be applicable to
the respective Tranche B Term Loan Sub-Facility, the Borrower has not
received Tranche B Term Loan Commitments in an aggregate amount equal to
that amount of Tranche B Term Loan Commitments which the Borrower desires
to obtain pursuant to such request (as set forth in the notice provided by
the Borrower to the Administrative Agent as provided above), then the
Borrower may request Tranche B Term Loan Commitments from Persons which
would qualify as Eligible Transferees hereunder in aggregate amount equal
to such deficiency on terms which are no more favorable to such Eligible
Transferee in any respect than the terms offered to the Banks, provided
--------
that any such Tranche B Term Loan Commitments provided by any such Eligible
Transferee which is not already a Bank shall be in a minimum amount (for
such
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<PAGE>
Eligible Transferee) of at least $5,000,000, and (viii) all actions
taken by the Borrower pursuant to this Section 1.14(a)(I) shall be done in
coordination with the Administrative Agent; and/or
(II) Additional Revolving Loan Commitments and, subject to the
applicable terms and conditions contained in this Agreement and the
relevant Additional Revolving Loan Commitment Agreement, make Revolving
Loans pursuant to Section 1.01(b), it being understood and agreed, however,
that (i) no Bank shall be obligated to provide an Additional Revolving Loan
Commitment as a result of any request by the Borrower, (ii) until such
time, if any, as (x) such Bank has agreed in its sole discretion to provide
an Additional Revolving Loan Commitment and executed and delivered to the
Administrative Agent an Additional Revolving Loan Commitment Agreement in
respect thereof as provided in Section 1.14(c) and (y) such other
conditions set forth in Section 1.14(c) shall have been satisfied, such
Bank shall not be obligated to fund any Revolving Loans, or participate in
any Letters of Credit, in excess of the amounts provided for in Section
1.01(b) or 2.03, as the case may be, before giving effect to such
Additional Revolving Loan Commitments provided pursuant to this Section
1.14, (iii) any Bank (or, in the circumstances contemplated by clause (vii)
below, any other Person which will qualify as an Eligible Transferee) may
so provide an Additional Revolving Loan Commitment without the consent of
any other Bank, (iv) each provision of Additional Revolving Loan
Commitments on a given date pursuant to this Section 1.14 shall be in a
minimum aggregate amount (for all Banks (including, in the circumstances
contemplated by clause (vii) below, Eligible Transferees who will become
Banks)) of at least $20,000,000, (v) the aggregate amount of all Additional
Revolving Loan Commitments permitted to be provided pursuant to this
Section 1.14, when added to the aggregate amount of all Tranche B Term Loan
Commitments permitted to be provided pursuant to this Section 1.14 or the
aggregate principal amount of Tranche B Term Loans permitted to be made
pursuant to Section 1.01(e), shall not, in either case, exceed
$100,000,000, (vi) the fees payable to any Bank providing an relevant
Additional Revolving Loan Commitment shall be as set forth in the relevant
Additional Revolving Loan Commitment Agreement, (vii) if, after the
Borrower has requested the then existing Banks (other than Defaulting
Banks) to provide Additional Revolving Loan Commitments pursuant to this
Section 1.14 on the terms to be applicable thereto, the Borrower has not
received Additional Revolving Loan Commitments in an aggregate amount equal
to that amount of the Additional Revolving Loan Commitments which the
Borrower desires to obtain pursuant to such request (as set forth in the
notice provided by the Borrower to the Administrative Agent as provided
above), then the Borrower may request Additional Revolving Loan Commitments
from Persons which would qualify as Eligible Transferees hereunder in
aggregate amount equal to such deficiency on terms which are no more
favorable to such Eligible Transferee in any respect than the terms offered
to the Banks, provided that any such Additional Revolving Loan Commitments
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provided by any such Eligible Transferee which is not already a Bank shall
be in a minimum amount (for such Eligible Transferee) of at least
$5,000,000, and (viii) all actions taken by the Borrower pursuant to this
Section 1.14(a)(II) shall be done in coordination with the Administrative
Agent.
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<PAGE>
(b) At the time of any provision of Tranche B Term Loan Commitments
pursuant to this Section 1.14, (i) the Borrower, the Administrative Agent and
each such Bank or other Eligible Transferee (each, a "Tranche B Term Loan Bank")
which agrees to provide a Tranche B Term Loan Commitment shall execute and
deliver to the Administrative Agent a Tranche B Term Loan Commitment Agreement
substantially in the form of Exhibit O-1, subject to such modifications in form
and substance satisfactory to the Administrative Agent as may be necessary or
appropriate in the case of any Tranche B Term Loan Sub-Facility (with the
effectiveness of such Tranche B Term Loan Bank's Tranche B Term Loan Commitment
to occur upon delivery of such Tranche B Term Loan Commitment Agreement to the
Administrative Agent, the payment of any fees required in connection therewith
and the satisfaction of the other conditions in this Section 1.14(b) to the
satisfaction of the Administrative Agent), (ii) if the proceeds of the Tranche B
Term Loans of the respective Tranche B Term Loan Sub-Facility are to be utilized
to finance a Permitted Acquisition on the respective Tranche B Term Loan
Commitment Date, the Borrower shall deliver to the Administrative Agent the
officer's certificate required to be delivered pursuant to Section 8.14(a)(x) in
connection with such Permitted Acquisition , (iii) the Additional Loan
Commitment Requirements shall have been satisfied and (iv) the Borrower shall
deliver to the Administrative Agent an opinion, in form and substance
satisfactory to the Agents, from counsel to the Borrower satisfactory to the
Agents and dated such date, covering such matters similar to those set forth in
the opinion of counsel delivered to the Administrative Agent on the Initial
Borrowing Date pursuant to Section 5.03 and such other matters as the Agents may
reasonably request. The Administrative Agent shall promptly notify each Bank as
to the occurrence of each Tranche B Term Loan Commitment Date, and (x) on each
such date Schedule I shall be deemed modified to reflect the Tranche B Term Loan
Commitments of such Tranche B Term Loan Banks and (y) to the extent requested by
such Tranche B Term Loan Banks, Tranche B Term Notes will be issued, at the
Borrower's expense, to such Tranche B Term Loan Banks, to be in conformity with
the requirements of Section 1.05 (with appropriate modifications) to the extent
needed to reflect the new Tranche B Term Loan Commitments.
(c) At the time of any provision of Additional Revolving Loan
Commitments pursuant to this Section 1.14, (i) the Borrower, the Administrative
Agent and each such Bank or other Eligible Transferee (each, an "Additional
Revolving Loan Bank") which agrees to provide an Additional Revolving Loan
Commitment shall execute and deliver to the Administrative Agent a Revolving
Loan Commitment Agreement substantially in the form of Exhibit O-2, subject to
such modifications in form and substance satisfactory to the Administrative
Agent as may be necessary or appropriate (with the effectiveness of such
Additional Revolving Loan Bank's Additional Revolving Loan Commitment to occur
upon delivery of such Revolving Loan Commitment Agreement to the Administrative
Agent, the payment of any fees required in connection therewith and the
satisfaction of the other conditions in this Section 1.14(c) to the satisfaction
of the Administrative Agent), (ii) if the proceeds of the Revolving Loans to be
incurred pursuant to such Additional Revolving Loan Commitment are to be
utilized to finance a Permitted Acquisition on the respective Additional
Revolving Loan Commitment Date, the Borrower shall deliver to the Administrative
Agent the officer's certificate required to be delivered pursuant to Section
8.14(a)(x) in connection with such proposed Permitted Acquisition, (iii) the
Additional Loan Commitment Requirements shall have been satisfied, (iv) the
Borrower shall, in coordination with the Administrative Agent, repay all
outstanding Revolving Loans of the RL Banks, and incur additional Revolving
Loans from other RL Banks in each case so that
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the RL Banks participate in each Borrowing of Revolving Loans pro rata on the
basis of their respective Revolving Loan Commitments (after giving effect to any
increase in the Total Revolving Loan Commitment pursuant to this Section 1.14)
and with the Borrower being obligated to pay the respective RL Banks the costs
of the type referred to in Section 1.11 in connection with any such repayment
and/or Borrowing and (v) the Borrower shall deliver to the Administrative Agent
an opinion, in form and substance satisfactory to the Agents, from counsel to
the Borrower satisfactory to the Agents and dated such date, covering such
matters similar to those set forth in the opinion of counsel delivered to the
Administrative Agent on the Initial Borrowing Date pursuant to Section 5.03 and
such other matters as the Agents may reasonably request. The Administrative
Agent shall promptly notify each Bank as to the occurrence of each Additional
Revolving Loan Commitment Date, and (w) on each such date, the Total Revolving
Loan Commitment under, and for all purposes of, this Agreement shall be
increased by the aggregate amount of such Additional Revolving Loan Commitments,
(x) on each such date Schedule I shall be deemed modified to reflect the revised
Revolving Loan Commitments of the affected Banks, (y) upon surrender of any old
Revolving Notes by the respective Additional Revolving Loan Bank (or, if lost, a
standard lost note indemnity in form and substance reasonably satisfactory to
the Borrower), to the extent requested by any Additional Revolving Loan Bank, a
new Revolving Note will be issued, at the Borrower's expense, to such Additional
Revolving Loan Bank, to be in conformity with the requirements of Section 1.05
(with appropriate modifications) to the extent needed to reflect the revised
Revolving Loan Commitment of such Bank and (z) on such date with respect to all
outstanding Letters of Credit and Unpaid Drawings, there shall be an automatic
adjustment to the participations by the Banks in such Letters of Credit and
Unpaid Drawings to reflect the new RL Percentages of the Banks.
SECTION 2. Letters of Credit.
-----------------
2.01 Letters of Credit. (a) Subject to and upon the terms and
-----------------
conditions herein set forth, the Borrower may request a Letter of Credit Issuer
at any time and from time to time on or after the Initial Borrowing Date and
prior to the tenth Business Day (or the 30th day in the case of Trade Letters of
Credit) preceding the Revolving Loan Maturity Date to issue, (x) for the account
of the Borrower and for the benefit of any holder (or any trustee, agent or
other similar representative for any such holders) of L/C Supportable
Indebtedness, irrevocable sight standby letters of credit in a form customarily
used by such Letter of Credit Issuer or in such other form as has been approved
by such Letter of Credit Issuer (each such standby letter of credit, a "Standby
Letter of Credit") in support of such L/C Supportable Indebtedness and (y) for
the account of the Borrower and for the benefit of sellers of goods to the
Borrower or any Subsidiary Guarantor in the ordinary course of business,
irrevocable sight trade letters of credit in a form customarily used by such
Letter of Credit Issuer or in such other form as has been approved by such
Letter of Credit Issuer (each such trade letter of credit, a "Trade Letter of
Credit," and each such Standby Letter of Credit and Trade Letter of Credit, a
"Letter of Credit" and, collectively, the "Letters of Credit").
(b) Subject to and upon the terms and conditions set forth herein,
each Letter of Credit Issuer hereby agrees that it will, at any time and from
time to time on and after the Initial Borrowing Date and prior to the tenth
Business Day (or the 30th day in the case of Trade Letters of Credit) preceding
the Revolving Loan Maturity Date, following its receipt of the respective Letter
of Credit Request, issue for the account of the Borrower one or more Letters of
Credit, (x)
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<PAGE>
in the case of Trade Letters of Credit, in support of trade obligations of the
Borrower or any Subsidiary Guarantor that arise in the ordinary course of
business or (y) in the case of Standby Letters of Credit, in support of such L/C
Supportable Indebtedness as is permitted to remain outstanding hereunder.
Notwithstanding the foregoing, no Letter of Credit Issuer shall be under any
obligation to issue any Letter of Credit if at the time of such issuance:
(i) any order, judgment or decree of any governmental authority or
arbitrator shall purport by its terms to enjoin or restrain such Letter of
Credit Issuer from issuing such Letter of Credit or any requirement of law
applicable to such Letter of Credit Issuer or any request or directive
(whether or not having the force of law) from any governmental authority
with jurisdiction over such Letter of Credit Issuer shall prohibit, or
request that such Letter of Credit Issuer refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall
impose upon such Letter of Credit Issuer with respect to such Letter of
Credit any restriction or reserve or capital requirement (for which such
Letter of Credit Issuer is not otherwise compensated) not in effect on the
date hereof, or any unreimbursed loss, cost or expense which was not
applicable, in effect or known to such Letter of Credit Issuer as of the
date hereof and which such Letter of Credit Issuer in good faith deems
material to it; or
(ii) such Letter of Credit Issuer shall have received written notice
from the Borrower or the Required Banks prior to the issuance of such
Letter of Credit of the type described in clause (vi) of Section 2.01(c) or
the last sentence of Section 2.02(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit shall be
issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of Credit) at such time, would
exceed either (x) $25,000,000 or (y) when added to the aggregate principal
amount of all Revolving Loans then outstanding and all Swingline Loans then
outstanding, the Total Revolving Loan Commitment at such time; (ii) (x) each
Standby Letter of Credit shall have an expiry date occurring not later than one
year after such Standby Letter of Credit's date of issuance, provided, that any
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such Standby Letter of Credit may be extendable for successive periods of up to
one year, but not beyond the tenth Business Day preceding the Revolving Loan
Maturity Date, on terms acceptable to the Letter of Credit Issuer and (y) each
Trade Letter of Credit shall have an expiry date occurring not later than 180
days after such Trade Letter of Credit's date of issuance; (iii) (x) no Standby
Letter of Credit shall have an expiry date occurring later than the tenth
Business Day preceding the Revolving Loan Maturity Date and (y) no Trade Letter
of Credit shall have an expiry date occurring later than 30 days prior to the
Revolving Loan Maturity Date; (iv) each Letter of Credit shall be denominated in
U.S. Dollars; (v) the Stated Amount of each Letter of Credit shall not be less
than $100,000 or such lesser amount as is acceptable to the respective Letter of
Credit Issuer; and (vi) no Letter of Credit Issuer will issue any Letter of
Credit after it has received written notice from the Borrower or the Required
Banks stating that a Default or an Event of Default exists until such time as
such Letter of Credit Issuer shall have received a written notice of (x)
rescission of such notice from the party or parties originally delivering the
same or (y) a waiver of such Default or Event of Default by the Required Banks.
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(d) Notwithstanding the foregoing, in the event a Bank Default
exists, no Letter of Credit Issuer shall be required to issue any Letter of
Credit unless the respective Letter of Credit Issuer has entered into
arrangements satisfactory to it and the Borrower to eliminate such Letter of
Credit Issuer's risk with respect to the participation in Letters of Credit of
the Defaulting Bank or Banks, including by cash collateralizing such Defaulting
Bank's or Banks' RL Percentage of the Letter of Credit Outstandings, as the case
may be.
2.02 Letter of Credit Requests. (a) Whenever the Borrower desires
-------------------------
that a Letter of Credit be issued, the Borrower shall give the Administrative
Agent and the respective Letter of Credit Issuer written notice thereof prior to
12:00 Noon (New York time) at least five Business Days (or such shorter period
as may be acceptable to the respective Letter of Credit Issuer) prior to the
proposed date of issuance (which shall be a Business Day) which written notice
shall be in the form of Exhibit C (each, a "Letter of Credit Request"). Each
Letter of Credit Request shall include any other documents as such Letter of
Credit Issuer customarily requires in connection therewith.
(b) The making of each Letter of Credit Request shall be deemed to be
a representation and warranty by the Borrower that such Letter of Credit may be
issued in accordance with, and it will not violate the requirements of, Section
2.01(c). Unless the respective Letter of Credit Issuer has received notice from
any Agent or the Required Banks before it issues a Letter of Credit that one or
more of the applicable conditions specified in Section 5 or 6, as the case may
be, are not then satisfied, or that the issuance of such Letter of Credit would
violate Section 2.01(c), then such Letter of Credit Issuer may issue the
requested Letter of Credit for the account of the Borrower in accordance with
such Letter of Credit Issuer's usual and customary practice.
2.03 Letter of Credit Participations. (a) Immediately upon the
-------------------------------
issuance by a Letter of Credit Issuer of any Letter of Credit, such Letter of
Credit Issuer shall be deemed to have sold and transferred to each other RL
Bank, and each such RL Bank (each, a "Participant") shall be deemed irrevocably
and unconditionally to have purchased and received from such Letter of Credit
Issuer, without recourse or warranty, an undivided interest and participation,
to the extent of such Participant's RL Percentage, in such Letter of Credit,
each substitute Letter of Credit, each drawing made thereunder and the
obligations of the Borrower under this Agreement with respect thereto (although
Letter of Credit Fees shall be payable directly to the Administrative Agent for
the account of the RL Banks as provided in Section 3.01(b) and the Participants
shall have no right to receive any portion of any Facing Fees with respect to
such Letters of Credit) and any security therefor or guaranty pertaining
thereto. Upon any change in the Revolving Loan Commitments or the RL
Percentages of the RL Banks pursuant to Section 1.13, 1.14(c) or 13.04(b), it is
hereby agreed that, with respect to all outstanding Letters of Credit and Unpaid
Drawings with respect thereto, there shall be an automatic adjustment to the
participations pursuant to this Section 2.03 to reflect the new RL Percentages
of the assigning and assignee Bank or of all RL Banks, as the case may be.
(b) In determining whether to pay under any Letter of Credit, no
Letter of Credit Issuer shall have any obligation relative to the Participants
other than to determine that any documents required to be delivered under such
Letter of Credit have been delivered and that they appear to substantially
comply on their face with the requirements of such Letter of Credit. Any
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<PAGE>
action taken or omitted to be taken by any Letter of Credit Issuer under or in
connection with any Letter of Credit issued by it if taken or omitted in the
absence of gross negligence or willful misconduct, shall not create for such
Letter of Credit Issuer any resulting liability.
(c) In the event that any Letter of Credit Issuer makes any payment
under any Letter of Credit issued by it and the Borrower shall not have
reimbursed such amount in full to the Letter of Credit Issuer pursuant to
Section 2.04(a), such Letter of Credit Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify each
Participant of such failure, and each such Participant shall promptly and
unconditionally pay to the Administrative Agent for the account of such Letter
of Credit Issuer, the amount of such Participant's RL Percentage of such payment
in U.S. Dollars and in same day funds. If the Administrative Agent so notifies
any Participant required to fund a payment under a Letter of Credit prior to
11:00 A.M. (New York time) on any Business Day, such Participant shall make
available to the Administrative Agent at the Payment Office for the account of
the respective Letter of Credit Issuer such Participant's RL Percentage of the
amount of such payment on such Business Day in same day funds (and, to the
extent such notice is given after 11:00 A.M. (New York time) on any Business
Day, such Participant shall make such payment on the immediately following
Business Day). If and to the extent such Participant shall not have so made its
RL Percentage of the amount of such payment available to the Administrative
Agent for the account of the respective Letter of Credit Issuer, such
Participant agrees to pay to the Administrative Agent for the account of such
Letter of Credit Issuer, forthwith on demand such amount, together with interest
thereon, for each day from such date until the date such amount is paid to the
Administrative Agent for the account of the Letter of Credit Issuer at the
overnight Federal Funds Rate. The failure of any Participant to make available
to the Administrative Agent for the account of the respective Letter of Credit
Issuer its RL Percentage of any payment under any Letter of Credit issued by it
shall not relieve any other Participant of its obligation hereunder to make
available to the Administrative Agent for the account of such Letter of Credit
Issuer its applicable RL Percentage of any payment under any such Letter of
Credit on the date required, as specified above, but no Participant shall be
responsible for the failure of any other Participant to make available to the
Administrative Agent for the account of such Letter of Credit Issuer such other
Participant's RL Percentage of any such payment.
(d) Whenever any Letter of Credit Issuer receives a payment of a
reimbursement obligation as to which the Administrative Agent has received for
the account of such Letter of Credit Issuer any payments from the Participants
pursuant to clause (c) above, such Letter of Credit Issuer shall pay to the
Administrative Agent and the Administrative Agent shall promptly pay to each
Participant which has paid its RL Percentage thereof, in U.S. Dollars and in
same day funds, an amount equal to such Participant's RL Percentage of the
principal amount thereof and interest thereon accruing after the purchase of the
respective participations.
(e) Each Letter of Credit Issuer shall, promptly after each issuance
of, or amendment or modification to, a Standby Letter of Credit issued by it,
give the Administrative Agent, each Participant and the Borrower written notice
of the issuance of, or amendment or modification to, such Standby Letter of
Credit. The Administrative Agent shall, upon request from any Participant,
furnish to such Participant copies of each such Standby Letter of Credit and
each such amendment or modification thereto.
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<PAGE>
(f) Each Letter of Credit Issuer (other than BTCo) shall deliver to
the Administrative Agent, promptly on the first Business Day of each week, by
facsimile transmission, the aggregate daily Stated Amount available to be drawn
under the outstanding Trade Letters of Credit issued by such Letter of Credit
Issuer for the previous week. The Administrative Agent shall, within 10 days
after the last Business Day of each calendar month, deliver to each Participant
a report setting forth for such preceding calendar month the aggregate daily
Stated Amount available to be drawn under all outstanding Trade Letters of
Credit during such calendar month.
(g) The obligations of the Participants to make payments to the
Administrative Agent for the account of the respective Letter of Credit Issuer
with respect to Letters of Credit issued by it shall be irrevocable and not
subject to counterclaim, set-off or other defense or any other qualification or
exception whatsoever and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances:
(i) any lack of validity or enforceability of this Agreement or any of
the other Credit Documents;
(ii) the existence of any claim, set-off, defense or other right which
the Borrower or any of its Subsidiaries may have at any time against a
beneficiary named in a Letter of Credit, any transferee of any Letter of
Credit (or any Person for whom any such transferee may be acting), any
Agent, any Letter of Credit Issuer, any Bank, or other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions (including any underlying
transaction between the Borrower or any of its Subsidiaries and the
beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or other document presented under the
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(iv) the surrender or impairment of any security for the performance
or observance of any of the terms of any of the Credit Documents; or
(v) the occurrence of any Default or Event of Default.
2.04 Agreement to Repay Letter of Credit Drawings. (a) The Borrower
--------------------------------------------
hereby agrees to reimburse each Letter of Credit Issuer, by making payment to
the Administrative Agent in immediately available funds at the Payment Office,
for any payment or disbursement made by such Letter of Credit Issuer under any
Letter of Credit issued by it (each such amount so paid or disbursed until
reimbursed, an "Unpaid Drawing") immediately after, and in any event on the date
of such payment or disbursement, with interest on the amount so paid or
disbursed by such Letter of Credit Issuer, to the extent not reimbursed prior to
2:00 P.M. (New York time) on the date of such payment or disbursement, from and
including the date paid or disbursed to but not including the date such Letter
of Credit Issuer is reimbursed therefor at a rate per annum which shall be the
then Applicable Margin for Revolving Loans maintained as Base Rate Loans plus
the Base Rate, each as in effect from time to time (plus an additional 2% per
annum if not reimbursed by the third Business Day after the date of such payment
or disbursement), such interest also to be payable on demand; provided, that it
--------
is understood and agreed, however, that the notices referred to above in this
clause (a) shall not be required to be given if a Default or an Event of Default
under such Section 10.05 shall have occurred and be continuing (in which case
the Unpaid Drawings shall be due and payable immediately without presentment,
demand, protest or notice of any kind (all of which are hereby waived by each
Credit Party) and shall bear interest at a rate per annum which shall be (x)
until the third Business Day following the respective Drawing, the Applicable
Margin for Revolving Loans maintained as Base Rate Loans plus the
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<PAGE>
Base Rate, each as in effect from time to time, and (y) at all times on and
after the third Business Day following the respective Drawing, the rate per
annum specified in preceding clause (x) plus 2%). Each Letter of Credit Issuer
shall provide the Borrower prompt notice of any payment or disbursement made by
it under any Letter of Credit issued by it, although the failure of, or delay
in, giving any such notice shall not release or diminish the obligations of the
Borrower under this Section 2.04(a) or under any other Section of this
Agreement.
(b) The Borrower's obligation under this Section 2.04 to reimburse
the respective Letter of Credit Issuer with respect to drawings on Letters of
Credit (including, in each case, interest thereon) shall be absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim or defense to payment which the Borrower or any of its Subsidiaries
may have or have had against such Letter of Credit Issuer, any Agent or any
Bank, including, without limitation, any defense based upon the failure of any
drawing under a Letter of Credit issued by it to conform to the terms of the
Letter of Credit or any nonapplication or misapplication by the beneficiary of
the proceeds of such drawing; provided, however, that the Borrower shall not be
-------- -------
obligated to reimburse such Letter of Credit Issuer for any wrongful payment
made by such Letter of Credit Issuer under a Letter of Credit issued by it as a
result of acts or omissions constituting willful misconduct or gross negligence
on the part of such Letter of Credit Issuer as determined by a court of
competent jurisdiction.
2.05 Increased Costs. If after the Effective Date, any Letter of
---------------
Credit Issuer or any Participant determines that the adoption or effectiveness
of any applicable law, rule or regulation, order, guideline or request or any
change therein, or any change in the interpretation or administration thereof by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Letter of Credit
Issuer or any Participant with any request or directive (whether or not having
the force of law) by any such authority, central bank or comparable agency shall
either (i) impose, modify or make applicable any reserve, deposit, capital
adequacy or similar requirement against Letters of Credit issued by such Letter
of Credit Issuer or such Participant's participation therein, or (ii) impose on
any Letter of Credit Issuer or any Participant any other conditions directly or
indirectly affecting this Agreement, any Letter of Credit or such Participant's
participation therein; and the result of any of the foregoing is to increase the
cost to such Letter of Credit Issuer or such Participant of issuing, maintaining
or participating in any Letter of Credit, or to reduce the amount of any sum
received or receivable by such Letter of Credit Issuer or such Participant
hereunder or reduce the rate of return on its capital with respect to Letters of
Credit, then, upon written demand to the Borrower by such Letter of Credit
Issuer or such Participant (a copy of which notice shall be sent by such Letter
of Credit Issuer or such Participant to the Administrative Agent), accompanied
by the certificate described in the last sentence of this Section 2.05, the
Borrower agrees, subject to
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<PAGE>
the provisions of Section 13.18 (to the extent applicable), to pay to such
Letter of Credit Issuer or such Participant such additional amount or amounts as
will compensate such Letter of Credit Issuer or such Participant for such
increased cost or reduction. A certificate submitted to the Borrower by such
Letter of Credit Issuer or such Participant, as the case may be (a copy of which
certificate shall be sent by such Letter of Credit Issuer or such Participant to
the Administrative Agent), setting forth in reasonable detail the basis for the
determination of such additional amount or amounts necessary to compensate such
Letter of Credit Issuer or such Participant as aforesaid shall be final and
conclusive and binding on the Borrower absent manifest error, although the
failure to deliver any such certificate shall not release or diminish the
Borrower's obligations to pay additional amounts pursuant to this Section 2.05
upon subsequent receipt of such certificate.
SECTION 3. Fees; Commitments.
-----------------
3.01 Fees. (a) The Borrower shall pay to the Administrative Agent
----
for distribution to each Non-Defaulting Bank with a Revolving Loan Commitment, a
commitment fee (the "Commitment Fee") for the period from the Effective Date to
but not including the Revolving Loan Maturity Date (or such earlier date as the
Total Revolving Loan Commitment shall have been terminated), computed at a rate
for each day equal to the relevant Applicable Margin then in effect on the daily
average Unutilized Revolving Loan Commitment of such Non-Defaulting Bank.
Accrued Commitment Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and on the Revolving Loan Maturity Date (or such earlier
date upon which the Total Revolving Loan Commitment is terminated).
(b) The Borrower shall pay to the Administrative Agent for pro rata
--- ----
distribution to each Non-Defaulting Bank with a Revolving Loan Commitment (based
on their respective RL Percentages), a fee in respect of each Letter of Credit
(the "Letter of Credit Fee") computed at a rate per annum equal to the
Applicable Margin for Revolving Loans maintained as Eurodollar Loans then in
effect on the daily Stated Amount of such Letter of Credit. Accrued Letter of
Credit Fees shall be due and payable quarterly in arrears on each Quarterly
Payment Date and upon the first day on or after the termination of the Total
Revolving Loan Commitment upon which no Letters of Credit remain outstanding.
(c) The Borrower shall pay to each Letter of Credit Issuer a fee in
respect of each Letter of Credit issued by such Letter of Credit Issuer (the
"Facing Fee") computed at the rate of 1/4 of 1% per annum on the daily Stated
Amount of such Letter of Credit; provided, that in no event shall the annual
--------
Facing Fee with respect to each Letter of Credit be less than $500; it being
agreed that (x) on the date of issuance of any Letter of Credit and on each
anniversary thereof prior to the termination of such Letter of Credit, if $500
will exceed the amount of Facing Fees that will accrue with respect to such
Letter of Credit for the immediately succeeding 12-month period, the full $500
shall be payable on the date of issuance of such Letter of Credit and on each
such anniversary thereof prior to the termination of such Letter of Credit and
(y) if on the date of the termination of any Letter of Credit, $500 actually
exceeds the amount of Facing Fees paid or payable with respect to such Letter of
Credit for the period beginning on the date of the issuance thereof (or if the
respective Letter of Credit has been outstanding for more than one year, the
date of the last anniversary of the issuance thereof occurring prior to the
termination of such Letter of Credit) and ending on the date of the termination
thereof, an amount equal to such excess shall be
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<PAGE>
paid as additional Facing Fees with respect to such Letter of Credit on the next
date upon which Facing Fees are payable in accordance with the immediately
succeeding sentence. Except as provided in the immediately preceding sentence,
accrued Facing Fees shall be due and payable quarterly in arrears on each
Quarterly Payment Date and upon the first day on or after the termination of the
Total Revolving Loan Commitment upon which no Letters of Credit remain
outstanding.
(d) The Borrower shall pay directly to each Letter of Credit Issuer
upon each issuance of, payment under, and/or amendment of, a Letter of Credit
issued by such Letter of Credit Issuer such amount as shall at the time of such
issuance, payment or amendment be the administrative charge which such Letter of
Credit Issuer is customarily charging for issuances of, payments under or
amendments of, letters of credit issued by it.
(e) The Borrower agrees to pay to the Administrative Agent for
distribution to each ALC Bank such fees and other amounts, if any, as are
specified in the relevant Additional Loan Commitment Agreement, with the fees
and other amounts, if any, to be payable at the times set forth in such
Additional Loan Commitment Agreement.
(f) The Borrower shall pay to each Agent, for its own account, such
other fees as may be agreed to in writing from time to time between the Borrower
and such Agent, when and as due.
(g) All computations of Fees shall be made in accordance with Section
13.07(b).
3.02 Voluntary Termination or Reduction of Total Unutilized Revolving
----------------------------------------------------------------
Loan Commitment. (a) Upon at least three Business Days' prior notice to the
- ---------------
Administrative Agent at its Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks), the Borrower shall have the
right, without premium or penalty, to terminate or partially reduce the Total
Unutilized Revolving Loan Commitment, in whole or in part, provided that (i) any
--------
such termination or partial reduction shall apply to proportionately and
permanently reduce the Revolving Loan Commitment of each Bank with such a
Commitment and (ii) any partial reduction pursuant to this Section 3.02(a) shall
be in integral multiples of $5,000,000.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
13.12(b), the Borrower shall have the right, subject to obtaining the consents
required by Section 13.12(b), upon five Business Days' prior written notice to
the Administrative Agent at its Notice Office (which notice the Administrative
Agent shall promptly transmit to each of the Banks), to terminate the entire
Revolving Loan Commitment of such Bank, so long as all Loans, together with
accrued and unpaid interest, Fees and all other amounts, owing to such Bank
(including all amounts, if any, owing pursuant to Section 1.11 but excluding
amounts owing in respect of either Tranche of Term Loans maintained by such
Bank, if such Term Loans are not being repaid pursuant to Section 13.12(b)) are
repaid concurrently with the effectiveness of such termination (at which time
Schedule I shall be deemed modified to reflect such changed amounts) and at such
time, unless the respective Bank continues to have outstanding Term Loans of
either Tranche hereunder, such Bank shall no longer constitute a "Bank" for
purposes of this Agreement, except
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<PAGE>
with respect to indemnifications under this Agreement (including, without
limitation, Sections 1.10, 1.11, 2.05, 4.04, 13.01 and 13.06), which shall
survive as to such repaid Bank.
3.03 Mandatory Reduction of Commitments. (a) The Total Commitment
----------------------------------
(and the Tranche A Term Loan Commitment and Revolving Loan Commitment of each
Bank with such a Commitment) shall terminate in its entirety on June 30, 1999
unless the Initial Borrowing Date has occurred on or before such date.
(b) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche A Term Loan Commitment (and the Tranche
A Term Loan Commitment of each Bank) shall terminate in its entirety on the
Initial Borrowing Date (after giving effect to the making of Tranche A Term
Loans on such date).
(c) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Tranche B Term Loan Commitment (and the Tranche
B Term Loan Commitment of each Bank) shall terminate in its entirety on each
Tranche B Term Loan Commitment Date (after giving effect to the making of
Tranche B Term Loans on such date).
(d) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment (and the Revolving
Loan Commitment of each RL Bank) shall terminate in its entirety on the
Revolving Loan Maturity Date.
(e) In addition to any other mandatory commitment reductions pursuant
to this Section 3.03, the Total Revolving Loan Commitment shall be permanently
reduced from time to time to the extent required by Section 4.02.
(f) Each reduction to the Total Tranche A Term Loan Commitment, Total
Tranche B Term Loan Commitment or Total Revolving Loan Commitment pursuant to
this Section 3.03 (or pursuant to Section 4.02) shall be applied proportionately
to reduce the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment
or the Revolving Loan Commitment, as the case may be, of each Bank with such a
Commitment.
SECTION 4. Payments.
--------
4.01 Voluntary Prepayments. The Borrower shall have the right to
---------------------
prepay the Loans, and the right to allocate such prepayments to Revolving Loans,
Swingline Loans and/or Term Loans as the Borrower elects, in whole or in part,
without premium or penalty except as otherwise provided in this Agreement, from
time to time on the following terms and conditions:
(i) the Borrower shall give the Administrative Agent at its Notice
Office written notice (or telephonic notice promptly confirmed in writing)
of its intent to prepay the Loans, whether such Loans are Tranche A Term
Loans, Tranche B Term Loans, Revolving Loans or Swingline Loans, the amount
of such prepayment, the Types of Loans to be repaid and (in the case of
Eurodollar Loans) the specific Borrowing(s) pursuant to which made, which
notice (I) shall be given by the Borrower prior to 12:00 Noon (New York
time) (x) at least one Business Day prior to the date of such prepayment in
the case of Base Rate Loans, (y) on the date of such prepayment in the case
of Swingline Loans and (z) at least three Business Days prior to the date
of such prepayment
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<PAGE>
in the case of Eurodollar Loans and (II) shall, except in the case of
Swingline Loans, promptly be transmitted by the Administrative Agent to
each of the Banks;
(ii) each prepayment (other than prepayments in full of (x) all
outstanding Base Rate Loans or (y) any outstanding Borrowing of Eurodollar
Loans) shall be in an aggregate principal amount of at least (x)
$1,000,000, in the case of Eurodollar Loans, (y) $500,000, in the case of
Revolving Loans and Term Loans maintained as Base Rate Loans and (z)
$100,000, in the case of Swingline Loans and, in each case, if greater, in
integral multiples of $100,000, provided, that no partial prepayment of
--------
Eurodollar Loans made pursuant to a Borrowing shall reduce the aggregate
principal amount of the Eurodollar Loans outstanding pursuant to such
Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto;
(iii) at the time of any prepayment of Eurodollar Loans pursuant to
this Section 4.01 on any date other than the last day of the Interest
Period applicable thereto, the Borrower shall pay the amounts required
pursuant to Section 1.11;
(iv) except as provided in clause (viii) below, each prepayment in
respect of any Loans made pursuant to a Borrowing shall be applied pro rata
--- ----
among such Loans, provided, that at the Borrower's election in connection
--------
with any prepayment of Revolving Loans pursuant to this Section 4.01, such
prepayment shall not be applied to any Revolving Loans of a Defaulting
Bank;
(v) each prepayment of principal of Tranche A Term Loans pursuant to
this Section 4.01 shall be applied to reduce the then remaining Tranche A
Term Loan Scheduled Repayments in direct order of maturity (based upon the
then remaining principal amounts of such Scheduled Repayments after giving
effect to all prior reductions thereto) and each prepayment of Tranche B
Term Loans pursuant to this Section 4.01 shall be applied within each
Tranche B Term Loan Sub-Facility to reduce the respective Tranche B Term
Loan Scheduled Repayments applicable thereto in direct order of maturity
(based upon the then remaining unpaid principal amount of such Scheduled
Repayments after giving effect to all prior reductions thereto);
(vi) except as provided in clause (viii) below, no prepayment of
Tranche B Term Loans may be made pursuant to this Section 4.01 prior to the
repayment in full of all Tranche A Term Loans;
(vii) each prepayment of Tranche B Term Loans pursuant to this
Section 4.01 (except as provided in clause (viii) below) must be
accompanied by a reduction to the Total Revolving Loan Commitment pursuant
to Section 3.02(a), with (x) the amount applied to prepay outstanding
Tranche B Term Loans and reduce the Total Revolving Loan Commitment as
required above to be applied pro rata to the Tranche B Term Loans (based
--- ----
upon the then remaining principal amount thereof) and the Total Revolving
Loan Commitment (as then in effect), (y) the Tranche B Term Loans to be
allocated the B TL Prepayment Percentage of the amount to be so applied and
the Total Revolving Loan Commitment to be allocated the RL Reduction
Percentage of the amount to be so applied and (z) each such prepayment of
Tranche B Term Loans to be applied on a pro rata basis
--- ----
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<PAGE>
to the Tranche B Term Loans then outstanding pursuant to the various
Tranche B Term Loan Sub-Facilities; and
(viii) in the event of certain refusals by a Bank to consent to
certain proposed changes, waivers, discharges or terminations with respect
to this Agreement which have been approved by the Required Banks as
provided in Section 13.12(b), the Borrower may, upon five Business Days'
prior written notice to the Administrative Agent at its Notice Office
(which notice the Administrative Agent shall promptly transmit to each of
the Banks), to repay all Loans of such Bank (including all amounts, if any,
owing pursuant to Section 1.11), together with accrued and unpaid interest,
Fees and all other amounts then owing to such Bank (or owing to such Bank
with respect to each Tranche which gave rise to the need to obtain such
Bank's individual consent) in accordance with said Section 13.12(b), so
long as (A) in the case of the repayment of Revolving Loans of any Bank
pursuant to this clause (viii), the Revolving Loan Commitment of such Bank
is terminated concurrently with such repayment (at which time Schedule I
shall be deemed modified to reflect the changed Revolving Loan Commitments)
and (B) the consents required by Section 13.12(b) in connection with the
repayment pursuant to this clause (viii) shall have been obtained.
4.02 Mandatory Repayments and Commitment Reductions. (a) If on any
----------------------------------------------
date the sum of (x) the aggregate outstanding principal amount of Revolving
Loans and Swingline Loans (after giving effect to all other repayments thereof
on such date) and (y) the Letter of Credit Outstandings on such date, exceeds
the Total Revolving Loan Commitment as then in effect, the Borrower shall repay
on such date, the principal of Swingline Loans, and if no Swingline Loans are or
remain outstanding, the principal of Revolving Loans in an aggregate amount
equal to such excess. If, after giving effect to the prepayment of all
outstanding Swingline Loans and all outstanding Revolving Loans, the aggregate
amount of Letter of Credit Outstandings exceeds the Total Revolving Loan
Commitment as then in effect, the Borrower shall pay to the Administrative Agent
at the Payment Office on such date an amount in cash and/or Cash Equivalents
equal to such excess (up to the aggregate amount of Letter of Credit
Outstandings at such time) and the Administrative Agent shall hold such payment
as security for the obligations of the Borrower to the Banks hereunder pursuant
to a cash collateral agreement to be entered into in form and substance
reasonably satisfactory to the Administrative Agent.
(b)(i) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date set forth below, the
Borrower shall be required to repay that principal amount of Tranche A Term
Loans, to the extent then outstanding, as is set forth opposite such date (each
such repayment, as the same may be reduced as provided in Sections 4.01 and
4.02(g), a "Tranche A Term Loan Scheduled Repayment"):
<TABLE>
<CAPTION>
Tranche A Scheduled Repayment Date Amount
- ---------------------------------- ---------------------
<S> <C>
June 30, 1999 $312,500
September 30, 1999 $312,500
December 31, 1999 $312,500
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Tranche A Scheduled Repayment Date Amount
- ---------------------------------- ---------------------
<S> <C>
March 31, 2000 $312,500
June 30, 2000 $312,500
September 30, 2000 $312,500
December 31, 2000 $312,500
March 31, 2001 $312,500
June 30, 2001 $312,500
September 30, 2001 $312,500
December 31, 2001 $312,500
March 31, 2002 $312,500
June 30, 2002 $312,500
September 30, 2002 $312,500
December 31, 2002 $312,500
March 31, 2003 $312,500
June 30, 2003 $312,500
September 30, 20003 $312,500
December 31, 2003 $312,500
March 31, 2004 $312,500
Tranche A Term Loan Maturity Date $118,750,000
</TABLE>
(ii) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, the Borrower shall be required to
repay (x) on each date on which the then remaining Tranche A Term Loan Scheduled
Repayments are required to be made (or would be required to be made if Tranche A
Term Loans were then outstanding) pursuant to Section 4.02(b)(i) prior to the
Tranche A Term Loan Maturity Date, that principal amount of Tranche B Term Loans
made under each Tranche B Term Loan Sub-Facility, to the extent then
outstanding, as is equal to the product of (i) the aggregate principal amount of
Tranche B Term Loans under such Tranche B Term Loan Sub-Facility incurred on the
relevant Tranche B Term Loan Commitment Date and (ii) 1/4 of 1% and (y) on the
Tranche B Term Loan Maturity Date, that portion of the remaining principal
amount of Tranche B Term Loans under each Tranche B Term Loan Sub-Facility
incurred on the relevant Tranche B Term Loan Commitment Date not required to be
repaid pursuant to clause (x) above, to the extent then outstanding (each such
repayment, as the same may be reduced as provided in Sections 4.01 and 4.02(g),
a "Tranche B Term Loan Scheduled Repayment").
(c) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date upon which the Borrower or any of its Subsidiaries receives Net Sale
Proceeds from any Asset Sale, an amount equal to the Applicable Prepayment
Percentage of the Net Sale Proceeds from such Asset Sale
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<PAGE>
shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 4.02(g) and (h); provided that (I)
--------
with respect to any such Net Sale Proceeds received by the Borrower or any of
its Subsidiaries in connection with a sale of Janitorial Equipment, such Net
Sale Proceeds shall not give rise to a mandatory repayment (and/or commitment
reduction, as the case may be) on such date to the extent that no Default or
Event of Default then exists and the Borrower delivers a certificate to the
Administrative Agent at the time of its delivery (or required delivery) of
financial statements pursuant to Section 8.01(b) or (c), as the case may be,
stating that such Net Sale Proceeds shall be used or have been used to purchase
replacement Janitorial Equipment within 270 days following the date of receipt
of such Net Sale Proceeds from such Asset Sale (which certificate shall set
forth the estimates of the proceeds to be so expended or the actual amount of
the proceeds so expended, as the case may be); provided however that (i) if the
-------- -------
Borrower fails to deliver the aforementioned certificate to the Administrative
Agent at the time of its delivery (or required delivery) of financial statements
pursuant to Section 8.01(b) or (c), as the case may be, all of such Net Sale
Proceeds shall be applied at such time as a mandatory repayment and/or
commitment reduction as provided above (without giving effect to the first
proviso hereto) and (ii) if all or any portion of such Net Sale Proceeds are not
so used within such 270-day period specified above, such remaining portion shall
be applied on the last day of such period as a mandatory repayment and/or
commitment reduction as provided above (without giving effect to the first
proviso hereto) and (II) with respect to no more than $5,000,000 in the
aggregate of such Net Sale Proceeds received by the Borrower or its Subsidiaries
in any fiscal year of the Borrower (other than Net Sale Proceeds received in
connection with a sale of Janitorial Equipment), such Net Sale Proceeds shall
not give rise to a mandatory repayment (and/or commitment reduction, as the case
may be) on such date to the extent that no Default or Event of Default then
exists and the Borrower delivers a certificate to the Administrative Agent on or
prior to such date stating that such Net Sale Proceeds shall be used or
contractually committed to be used to purchase assets used or to be used in the
businesses permitted pursuant to Section 9.01 (including, without limitation
(but only to the extent permitted by Section 9.02), the purchase of the capital
stock of a Person engaged in such businesses) within 270 days following the date
of receipt of such Net Sale Proceeds from such Asset Sale (which certificate
shall set forth the estimates of the proceeds to be so expended); provided
--------
however that (i) if all or any portion of such Net Sale Proceeds are not so used
- -------
(or contractually committed to be used) within such 270-day period, such
remaining portion shall be applied on the last day of such period as a mandatory
repayment and/or commitment reduction as provided above (without giving effect
to the first proviso hereto) and (ii) if all or any portion of such Net Sale
Proceeds are not so used within such 270-day period referred to in clause (i) of
this clause (y) because such amount is contractually committed to be used and
subsequent to the date of receipt of the respective Net Sale Proceeds such
contract is terminated or expires without such portion being so used, such
remaining portion shall be applied on the date of such termination or expiration
as a mandatory repayment and/or commitment reduction as provided above (without
giving effect to the first proviso hereto).
(d) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on each date on or after the Effective
Date on which the Borrower or any of its Subsidiaries receives any cash proceeds
from any incurrence of Indebtedness (other than Indebtedness permitted to be
incurred pursuant to Section 9.04 as in effect on the Effective Date) or
issuance of Disqualified Preferred Stock (except to the extent the proceeds
therefrom are used to effect Permitted Acquisitions), an amount equal to the
Applicable Prepayment
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<PAGE>
Percentage of the Net Cash Proceeds of the respective incurrence of Indebtedness
or issuance of Disqualified Preferred Stock shall be applied as a mandatory
repayment and/or commitment reduction in accordance with the requirements of
Sections 4.02(g) and (h).
(e) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, within 10 days following each date on
or after the Effective Date on which the Borrower or any of its Subsidiaries
receives any proceeds from any Recovery Event (other than proceeds from Recovery
Events in an amount less than $1,000,000 per Recovery Event), an amount equal to
100% of the proceeds of such Recovery Event (net of reasonable costs (including,
without limitation, legal costs and expenses) and taxes incurred in connection
with such Recovery Event and the amount of such proceeds required to be used to
repay any Indebtedness (other than Indebtedness of the Banks pursuant to this
Agreement) which is secured by the respective assets subject to such Recovery
Event) shall be applied as a mandatory repayment and/or commitment reduction in
accordance with the requirements of Sections 4.02(g) and (h); provided that (x)
--------
so long as no Default or Event of Default then exists and such proceeds do not
exceed $2,500,000, such proceeds shall not be required to be so applied on such
date to the extent that an Authorized Officer of the Borrower has delivered a
certificate to the Administrative Agent on or prior to such date stating that
such proceeds shall be used or shall be committed to be used to replace or
restore any properties or assets in respect of which such proceeds were paid
within 360 days following the date of such Recovery Event (which certificate
shall set forth the estimates of the proceeds to be so expended), and (y) so
long as no Default or Event of Default then exists and to the extent that (a)
the amount of such proceeds exceeds $2,500,000, (b) the amount of such proceeds,
together with other cash available to the Borrower and its Subsidiaries and
permitted to be spent by them on Capital Expenditures during the relevant
period, equals at least 100% of the cost of replacement or restoration of the
properties or assets in respect of which such proceeds were paid as determined
by the Borrower and as supported by such estimates or bids from contractors or
subcontractors or such other supporting information as the Administrative Agent
may reasonably accept, (c) an Authorized Officer of the Borrower has delivered
to the Administrative Agent a certificate on or prior to the date the
application would otherwise be required pursuant to this Section 4.02(e) in the
form described in clause (x) above and also certifying its determination as
required by preceding clause (b) and certifying the sufficiency of business
interruption insurance as required by succeeding clause (d), and (d) an
Authorized Officer of the Borrower has delivered to the Administrative Agent
such evidence as the Administrative Agent may reasonably request in form and
substance reasonably satisfactory to the Administrative Agent establishing that
the Borrower has sufficient business interruption insurance and that the
Borrower will receive payment thereunder in such amounts and at such times as
are necessary to satisfy all obligations and expenses of the Borrower
(including, without limitation, all debt service requirements, including
pursuant to this Agreement), without any delay or extension thereof, for the
period from the date of the respective casualty, condemnation or other event
giving rise to the Recovery Event and continuing through the completion of the
replacement or restoration of the respective properties or assets, then the
entire amount of the proceeds of such Recovery Event and not just the portion in
excess of $2,500,000 shall be deposited with the Administrative Agent pursuant
to a cash collateral arrangement reasonably satisfactory to the Administrative
Agent whereby such proceeds shall be disbursed to the Borrower from time to time
as needed to pay or reimburse the Borrower or such Subsidiary actual costs
incurred by it in connection with the replacement or restoration of the
respective properties or assets (pursuant to such certification requirements as
may be established
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<PAGE>
by the Administrative Agent), provided further, that at any time while an Event
-------- -------
of Default has occurred and is continuing, the Required Banks may direct the
Administrative Agent (in which case the Administrative Agent shall, and is
hereby authorized by the Borrower to, follow said directions) to apply any or
all proceeds then on deposit in such collateral account to the repayment of
Obligations hereunder in the same manner as proceeds would be applied pursuant
to the Security Agreement, and provided further, that if all or any portion of
-------- -------
such proceeds not required to be applied as a mandatory repayment and/or
commitment reduction pursuant to the second preceding proviso (whether pursuant
to clause (x) or (y) thereof) are either (A) not so used or committed to be so
used within 360 days after the date of the respective Recovery Event or (B) if
committed to be used within 360 days after the date of receipt of such net
proceeds and not so used within 18 months after the date of respective Recovery
Event then, in either such case, such remaining portion not used or committed to
be used in the case of preceding clause (A) and not used in the case of
preceding clause (B) shall be applied on the date occurring 360 days after the
date of the respective Recovery Event in the case of clause (A) above or the
date occurring 18 months after the date of the respective Recovery Event in the
case of clause (B) above, as a mandatory repayment and/or commitment reduction
in accordance with the requirements of Sections 4.02(g) and (h).
(f) In addition to any other mandatory repayments or commitment
reductions pursuant to this Section 4.02, on the 90th day following the Initial
Borrowing Date, an amount equal to 100% of the remainder of (x) the amount
deposited in the BT Tender Offer Account on the Initial Borrowing Date (i.e.,
----
$573,750,000) less (y) the amount utilized by the Borrower to finance the Common
----
Stock Repurchase on or prior to such date less (z) the amount utilized by the
----
Borrower to purchase Borrower Common Stock on the open-market pursuant to, and
in accordance with the requirements of, Section 9.06(viii), shall be applied as
a mandatory repayment and/or commitment reduction in accordance with the
requirements of Sections 4.02(g) and (h).
(g) Each amount required to be applied pursuant to Sections 4.02(c),
(d) or (e) in accordance with this Section 4.02(g) shall be applied (I) at any
time prior to the initial Tranche B Term Loan Commitment Date, (i) first, to
-----
repay the outstanding principal amount of Tranche A Term Loans and (ii) second,
to the extent in excess of the amounts required to be applied pursuant to
preceding sub-clause (i), to reduce the Total Revolving Loan Commitment and (II)
on and after the initial Tranche B Term Loan Commitment Date, (i) first, to
-----
repay the outstanding principal amount of Tranche A Term Loans and (ii) second,
------
to the extent in excess of the amounts required to be applied pursuant to
preceding sub-clause (i) of this clause (II), to repay the outstanding principal
amount of Tranche B Term Loans and to reduce the Total Revolving Loan
Commitment, with (x) each such amount required to repay outstanding Tranche B
Term Loans or reduce the Total Revolving Loan Commitment to be applied pro rata
--- ----
to the Tranche B Term Loans (based upon the then remaining principal amount
thereof) and the Total Revolving Loan Commitment (as then in effect), (y) the
Tranche B Term Loans to be allocated the B TL Repayment Percentage of the amount
to be so applied and the Total Revolving Loan Commitment to be allocated the RL
Reduction Percentage of the amount to be so applied and (z) each principal
repayment of Tranche B Terms Loans to be applied on a pro rata basis to the
--- ----
Tranche B Term Loans then outstanding pursuant to the various Tranche B Term
Loan Sub-Facilities. Each amount required to be applied pursuant to Section
4.02(f) in accordance with this Section 4.02(g) shall be applied (i) first, to
-----
repay outstanding Revolving Loans in an
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<PAGE>
aggregate principal amount equal to the aggregate principal amount of Revolving
Loans incurred by the Borrower on the Initial Borrowing Date and deposited in
the BT Tender Offer Account on such date, (ii) second, to the extent in excess
------
of the amounts required to be applied pursuant to preceding sub-clause (i), to
repay the outstanding principal amount of Tranche A Term Loans and (iii) third,
-----
to the extent in excess of the amounts required to be applied pursuant to
preceding sub-clauses (i) and (ii), to reduce the Total Revolving Loan
Commitment. For purposes of the foregoing provisions of this Section 4.02(g), it
is understood and agreed that (A) the amount of any reduction to the Total
Revolving Loan Commitment as in the preceding sentences shall be deemed to be an
application of proceeds for purposes of this Section 4.02(g) even though cash is
not actually applied and (B) in connection with any reduction to the Total
Revolving Loan Commitment as provided above, any cash received by the Borrower
or such Subsidiary in connection with the event giving rise to such reduction
will be retained by such Person except to the extent that such cash is otherwise
required to be applied as provided in Section 4.02(a) as a result of such
reduction. All repayments of outstanding Term Loans pursuant to Sections
4.02(c), (d), (e) or (f) shall be applied (x) in the case of Tranche A Term
Loans, to reduce the then remaining Tranche A Term Loan Scheduled Repayments on
a pro rata basis (based upon the then remaining Tranche A Term Loan Scheduled
--- ----
Repayments after giving effect to all prior reductions thereto) and (y) in the
case of Tranche B Term Loans, within each Tranche B Term Loan Sub-Facility to
reduce the respective Tranche B Term Loan Scheduled Repayments applicable
thereto on a pro rata basis (based upon the then remaining unpaid principal
--- ----
amount of such Tranche B Term Loan Scheduled Repayments after giving effect to
all prior reductions thereto).
(h) With respect to each repayment of Loans required by this Section
4.02, the Borrower may designate the Types of Loans of the respective Tranche
which are to be repaid and, in the case of Eurodollar Loans, the specific
Borrowing or Borrowings of the respective Tranche pursuant to which made,
provided that: (i) repayments of Eurodollar Loans pursuant to this Section 4.02
- --------
may only be made on the last day of an Interest Period applicable thereto unless
(x) all Eurodollar Loans of the respective Tranche with Interest Periods ending
on such date of required repayment and all Base Rate Loans of the respective
Tranche have been paid in full and/or (y) concurrently with such repayment, the
Borrower pays all breakage costs and other amounts owing to each Bank pursuant
to Section 1.11; (ii) if any repayment of Eurodollar Loans made pursuant to a
single Borrowing shall reduce the outstanding Eurodollar Loans made pursuant to
such Borrowing to an amount less than the Minimum Borrowing Amount applicable
thereto, such Borrowing shall be converted at the end of the then current
Interest Period into a Borrowing of Base Rate Loans; and (iii) each repayment of
any Tranche of Loans made pursuant to a Borrowing shall be applied pro rata
--- ----
among such Tranche of Loans. In the absence of a designation by the Borrower as
described in the preceding sentence, the Administrative Agent shall, subject to
the above, make such designation in its sole discretion with a view, but no
obligation to minimize breakage costs owing under Section 1.11. Notwithstanding
the foregoing provisions of this Section 4.02, if at any time the mandatory
repayment of Loans pursuant to Section 4.02(c), (d), (e) or (f) would result,
after giving effect to the procedures set forth in this clause (h) above, in the
Borrower incurring breakage costs under Section 1.11 as a result of Eurodollar
Loans being repaid other than on the last day of an Interest Period applicable
thereto (any such Eurodollar Loans, "Affected Loans"), the Borrower may elect,
by written notice to the Administrative Agent, to have the provisions of the
following sentence be applicable. At the time any Affected Loans are otherwise
required to be prepaid the Borrower may elect to deposit
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<PAGE>
100% (or such lesser percentage elected by the Borrower as not being repaid) of
the principal amounts that otherwise would have been paid in respect of the
Affected Loans with the Administrative Agent to be held as security for the
obligations of the Borrower hereunder pursuant to a cash collateral agreement to
be entered into in form and substance satisfactory to the Administrative Agent,
with such cash collateral to be released from such cash collateral account (and
applied to repay the principal amount of such Eurodollar Loans) upon each
occurrence thereafter of the last day of an Interest Period applicable to
Eurodollar Loans of the respective Tranche (or such earlier date or dates as
shall be requested by the Borrower), with the amount to be so released and
applied on the last day of each Interest Period to be the amount of such
Eurodollar Loans to which such Interest Period applies (or, if less, the amount
remaining in such cash collateral account).
(i) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, (i) all then outstanding Swingline Loans shall be repaid in full
on the Swingline Expiry Date and (ii) all other then outstanding Loans shall be
repaid in full on the respective Maturity Date for such Loans.
4.03 Method and Place of Payment. Except as otherwise specifically
---------------------------
provided herein, all payments under this Agreement or any Note shall be made to
the Administrative Agent for the ratable account of the Bank or Banks entitled
thereto not later than 12:00 Noon (New York time) on the date when due and shall
be made in immediately available funds and in U.S. Dollars at the Payment
Office. Any payments under this Agreement or under any Note which are made
later than 12:00 Noon (New York time) shall be deemed to have been made on the
next succeeding Business Day. Whenever any payment to be made hereunder or
under any Note shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding Business Day and,
with respect to payments of principal, interest shall be payable during such
extension at the applicable rate in effect immediately prior to such extension.
4.04 Net Payments. (a) All payments made by the Borrower hereunder
------------
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 4.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank pursuant to the laws
of the jurisdiction in which it is organized or the jurisdiction in which the
principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such nonexcluded taxes, levies, imposts, duties,
fees, assessments or other charges (all such nonexcluded taxes, levies, imposts,
duties, fees, assessments or other charges being referred to collectively as
"Taxes"). If any Taxes are so levied or imposed, the Borrower agrees to pay the
full amount of such Taxes, and such additional amounts as may be necessary so
that every payment of all amounts due under this Agreement or under any Note,
after withholding or deduction for or on account of any Taxes, will not be less
than the amount provided for herein or in such Note. If any amounts are payable
in respect of Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes
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<PAGE>
imposed on or measured by the net income or net profits of such Bank pursuant to
the laws of the jurisdiction in which such Bank is organized or in which the
principal office or applicable lending office of such Bank is located or under
the laws of any political subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
taxes as such Bank shall determine are payable by, or withheld from, such Bank
in respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts evidencing such payment by the
Borrower. The Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank party to this Agreement on the Effective Date hereby
represents that, as of the Effective Date, all payments of principal, interest,
and fees to be made to it by the Borrower pursuant to this Agreement will be
totally exempt from withholding of United States federal tax. Each Bank that is
not a United States person (as such term is defined in Section 7701(a)(30) of
the Code) for U.S. Federal income tax purposes agrees to deliver to the Borrower
and the Administrative Agent on or prior to the Effective Date, or in the case
of a Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.13 or 13.04 (unless the respective Bank was already a Bank
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form W-8ECI or W-8BEN (with respect to
a complete exemption under an income tax treaty) (or successor forms) certifying
to such Bank's entitlement as of such date to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if the Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form W-8ECI or W-8BEN (with respect to a complete exemption under an
income tax treaty) pursuant to clause (i) above, (x) a certificate substantially
in the form of Exhibit D (any such certificate, a "Section 4.04(b)(ii)
Certificate") and (y) two accurate and complete original signed copies of
Internal Revenue Service Form W-8BEN with respect to the portfolio interest
exemption (or successor form) certifying to such Bank's entitlement as of such
date to a complete exemption from United States withholding tax with respect to
payments of interest to be made under this Agreement and under any Note. In
addition, each Bank agrees that from time to time after the Effective Date, when
a lapse in time or change in circumstances renders the previous certification
obsolete or inaccurate in any material respect, it will deliver to the Borrower
and the Administrative Agent two new accurate and complete original signed
copies of Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the
benefits of an income tax treaty), Form W-8BEN (with respect to the benefits of
an income tax treaty), Form W-8BEN (with respect to the portfolio interest
exemption) and a Section 4.04(b)(ii) Certificate, as the case may be, and such
other forms as may be required in order to confirm or establish the entitlement
of such Bank to a continued exemption from or reduction in United States
withholding tax with respect to payments under this Agreement and any Note, or
it shall immediately notify the Borrower and the Administrative Agent of its
inability to deliver any such Form or Certificate in which case such Bank shall
not be required to deliver any such Form or Certificate pursuant to this Section
4.04(b). Notwithstanding anything
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<PAGE>
to the contrary contained in Section 4.04(a), but subject to Section 13.04(b)
and the immediately succeeding sentence, (x) the Borrower shall be entitled, to
the extent it is required to do so by law, to deduct or withhold income or
similar taxes imposed by the United States (or any political subdivision or
taxing authority thereof or therein) from interest, fees or other amounts
payable hereunder for the account of any Bank which is not a United States
person (as such term is defined in Section 7701(a)(30) of the Code) for U.S.
Federal income tax purposes to the extent that such Bank has not provided to the
Borrower U.S. Internal Revenue Service Forms that establish a complete exemption
from such deduction or withholding and (y) the Borrower shall not be obligated
pursuant to Section 4.04(a) hereof to gross-up payments to be made to a Bank in
respect of income or similar taxes imposed by the United States if (I) such Bank
has not provided to the Borrower the Internal Revenue Service Forms required to
be provided to the Borrower pursuant to this Section 4.04(b) or (II) in the case
of a payment, other than interest, to a Bank described in clause (ii) above, to
the extent that such Forms do not establish a complete exemption from
withholding of such taxes. Notwithstanding anything to the contrary contained in
the preceding sentence or elsewhere in this Section 4.04 and except as set forth
in Section 13.04(b), the Borrower agrees to pay additional amounts and to
indemnify each Bank in the manner set forth in Section 4.04(a) (without regard
to the identity of the jurisdiction requiring the deduction or withholding) in
respect of any Taxes deducted or withheld by it as described in the immediately
preceding sentence as a result of any changes that are effective after the
Effective Date in any applicable law, treaty, governmental rule, regulation,
guideline or order, or in the interpretation thereof, relating to the deducting
or withholding of such Taxes (or, if later, the date such Bank became party to
this Agreement).
(c) If the Borrower pays any additional amount under this Section
4.04 to a Bank and such Bank determines in its sole discretion that it has
actually received or realized in connection therewith any refund or any
reduction of, or credit against, its Tax liabilities in or with respect to the
taxable year in which the additional amount is paid, such Bank shall pay to the
Borrower an amount that the Bank shall, in its sole discretion, determine is
equal to the net benefit, after tax, which was obtained by the Bank in such year
as a consequence of such refund, reduction or credit.
(d) Each Bank shall use reasonable efforts (consistent with legal and
regulatory restrictions and subject to overall policy considerations of such
Bank) (i) to file any certificate or document or to furnish any information as
reasonably requested by the Borrower pursuant to any applicable treaty, law or
regulation or (ii) to designate a different applicable lending office of such
Bank, if the making of such filing or the furnishing of such information or the
designation of such other lending office would avoid the need for or reduce the
amount of any additional amounts payable by the Borrower and would not, in the
sole discretion of such Bank, be disadvantageous to such Bank.
(e) The provisions of this Section 4.04 are subject to the provisions
of Section 13.18 (to the extent applicable).
SECTION 5. Conditions Precedent to Initial Credit Events. The
---------------------------------------------
obligation of each Bank to make each Loan hereunder, and the obligation of the
Letter of Credit Issuer to issue each Letter of Credit hereunder, is subject, at
the time of the making of such Loans or the issuance of such Letters of Credit
to the satisfaction of the following conditions:
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<PAGE>
5.01 Execution of Agreement; Notes. On or prior to the Initial
-----------------------------
Borrowing Date, (i) the Effective Date shall have occurred and (ii) there shall
have been delivered to the Administrative Agent for the account of each Bank
which has requested the same the appropriate Tranche A Term Note and Revolving
Note and to BTCo if so requested, the Swingline Note, in each case executed by
the Borrower and in the amount, maturity and as otherwise provided herein.
5.02 Officer's Certificate. On the Initial Borrowing Date, the
---------------------
Administrative Agent shall have received a certificate dated such date signed by
an appropriate officer of the Borrower stating that all of the applicable
conditions set forth in Sections 5.05 through 5.08, inclusive, and 6.01 (other
than such conditions that are subject to the satisfaction of the Agents and/or
the Required Banks), have been satisfied on such date.
5.03 Opinions of Counsel. On the Initial Borrowing Date, the
-------------------
Administrative Agent shall have received opinions, addressed to each Agent, the
Collateral Agent and each of the Banks and dated the Initial Borrowing Date,
from (i) Morgan, Lewis & Bockius, LLP, special counsel to the Credit Parties,
which opinion shall cover the matters contained in Exhibit E-1 and such other
matters incident to the transactions contemplated herein as the Agents and the
Required Banks may reasonably request (including, without limitation, an
unqualified opinion as to compliance by the Borrower with the requirements of
the Investment Company Act of 1940, as amended), and be in form and substance
reasonably satisfactory to the Agents and the Required Banks, (ii) O'Sullivan
Graev & Karabell LLP, special counsel to the Credit Parties, which opinion shall
cover the matters contained in Exhibit E-2 and such other matters incident to
the transactions contemplated herein as the Agents and the Required Banks may
reasonably request, and be in form and substance reasonably satisfactory to the
Agents and the Required Banks, (iii) counsel rendering such opinions, reliance
letters addressed to each Agent and each of the Banks and dated the Initial
Borrowing Date with respect to all legal opinions delivered in connection with
the Transaction, which opinions shall cover such matters as the Agents may
reasonably request and be in form and substance reasonably satisfactory to the
Agents and (iv) local counsel to the Credit Parties and/or the Agents reasonably
satisfactory to the Agents, which opinions (x) shall be addressed to each Agent,
the Collateral Agent and each of the Banks and be dated the Initial Borrowing
Date, (y) shall cover the perfection of the security interests granted pursuant
to the Security Documents and such other matters incident to the transactions
contemplated herein as the Agents may reasonably request and (z) shall be in
form and substance reasonably satisfactory to the Agents.
5.04 Corporate Documents; Proceedings. (a) On the Initial Borrowing
--------------------------------
Date, the Administrative Agent shall have received from each Credit Party a
certificate, dated the Initial Borrowing Date, signed by the chairman, a vice-
chairman, the president or any vice-president of such Credit Party, and attested
to by the secretary or any assistant secretary of such Credit Party, in the form
of Exhibit F with appropriate insertions, together with copies of the
certificate of incorporation, by-laws or equivalent organizational documents of
such Credit Party and the resolutions of such Credit Party referred to in such
certificate and all of the foregoing (including each such certificate of
incorporation, by-laws or other organizational document) shall be reasonably
satisfactory to the Agents.
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<PAGE>
(b) On the Initial Borrowing Date, all Company and legal proceedings
and all instruments and agreements in connection with the transactions
contemplated by this Agreement and the other Documents shall be reasonably
satisfactory in form and substance to the Agents, and the Administrative Agent
shall have received all information and copies of all certificates, documents
and papers, including good standing certificates, bring-down certificates and
any other records of Company proceedings and governmental approvals, if any,
which any Agent reasonably may have requested in connection therewith, such
documents and papers, where appropriate, to be certified by proper Company or
governmental authorities.
(c) On the Initial Borrowing Date and after giving effect to the
Transaction, the capital structure (including, without limitation, the terms of
any capital stock, options, warrants or other securities issued by the Borrower
or any of its Subsidiaries), and management of the Borrower and its Subsidiaries
shall be as described in the Tender Offer Documents.
5.05 Adverse Change, etc. (a) On or prior to the Initial Borrowing
--------------------
Date, since December 31, 1998, nothing shall have occurred which (i) the
Required Banks or any Agent shall reasonably determine has had, or could
reasonably be expected to have, a material adverse effect on the rights or
remedies of the Banks or the Agents, or on the ability of any Credit Party to
perform its obligations to them hereunder or under any other Credit Document or
(ii) has had a material adverse effect on the Transaction or a Material Adverse
Effect.
(b) On the Initial Borrowing Date, there shall not have occurred and
be continuing any material adverse change to the syndication market for credit
facilities similar in nature to this Agreement and there shall not have occurred
and be continuing a material disruption or a material adverse change in
financial, banking or capital markets that would have a material adverse effect
on the syndication, in each case as determined by the Agents in their reasonable
discretion.
5.06 Litigation. On the Initial Borrowing Date, there shall be no
----------
actions, suits, proceedings or investigations pending or threatened (a) with
respect to this Agreement or any other Document or the Transaction, (b) with
respect to any Existing Indebtedness in an aggregate principal amount in excess
of $1,000,000 or (c) which any Agent or the Required Banks shall determine could
reasonably be expected to have (i) a Material Adverse Effect or (ii) a material
adverse effect on the Transaction, the rights or remedies of the Banks or the
Agents hereunder or under any other Credit Document or on the ability of any
Credit Party to perform its respective obligations to the Banks or the Agents
hereunder or under any other Credit Document.
5.07 Approvals. On or prior to the Initial Borrowing Date, (i) all
---------
necessary governmental (domestic and foreign), regulatory and third party
approvals in connection with any Existing Indebtedness, the Transaction, the
transactions contemplated by the Documents and otherwise referred to herein or
therein shall have been obtained and remain in full force and effect and
evidence thereof shall have been provided to the Administrative Agent, and (ii)
all applicable waiting periods shall have expired without any action being taken
by any competent authority which restrains, prevents or imposes materially
adverse conditions upon the consummation of the Transaction, the making of the
Loans and the transactions contemplated by the Documents or otherwise referred
to herein or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief
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<PAGE>
or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon, or materially delaying, or making economically
unfeasible, the consummation of the Transaction or the making of the Loans.
5.08 Transaction. (a) On or prior to the Initial Borrowing Date and
-----------
prior to the Credit Events then occurring, the Borrower shall have commenced a
tender offer with respect to the Borrower Common Stock (the "Tender Offer"),
pursuant to which the Borrower shall offer, subject to the terms and conditions
contained in the Tender Offer Documents, to repurchase approximately 25,500,000
shares of outstanding Borrower Common Stock (including shares outstanding after
giving effect to the exercise of stock options with a strike price of less than
$22.50 per share at the time of such repurchase (the "Option Shares")), at a
cash price equal to $22.50 per share from existing shareholders of the Borrower
for an aggregate purchase price not to exceed $573,750,000 less the exercise
----
price of the Option Shares to be purchased pursuant to the Common Stock
Repurchase.
(b) On the Initial Borrowing Date, (i) the Borrower shall have
(before giving effect to the financing transactions pursuant to this Agreement
and described herein) at least $120,000,000 of cash on hand, all of which cash
on hand shall be available to make payments owing in connection with the
Transaction, (ii) the Borrower shall have received gross cash proceeds from the
issuance of the Senior Subordinated Notes in the aggregate amount of
$200,000,000, (iii) the Borrower shall have received gross cash proceeds from
the issuance of Convertible Subordinated Notes in the aggregate amount of
$100,000,000 and (iv) the Borrower shall have utilized all of such cash on hand
and the full amount of the cash proceeds received by it from the issuance of the
Senior Subordinated Notes and the Convertible Subordinated Notes to fund the BT
Tender Offer Account and to make payments owing in connection with the
Transaction prior to utilizing any proceeds of Loans for any such purpose.
(c) On the Initial Borrowing Date, the Administrative Agent shall
have received true and correct copies of all Tender Offer Documents, Senior
Subordinated Notes Documents and Convertible Subordinated Notes Documents,
certified as such by an appropriate officer of the Borrower, and the foregoing
Documents, and all terms and conditions thereof (including, without limitation,
in the case of the Senior Subordinated Notes Documents and the Convertible
Subordinated Notes Documents, amortization, maturities, interest rates,
limitation on cash interest payable, covenants, defaults, remedies, conversion
features and subordination provisions), shall be in form and substance
satisfactory to the Agents and the Required Banks. All conditions precedent to
the consummation of the Transaction as set forth in the Tender Offer Documents,
the Senior Subordinated Notes Documents and the Convertible Subordinated Notes
Documents shall have been satisfied, and not waived unless consented to by the
Agents and the Required Banks, to the reasonable satisfaction of the Agents and
the Required Banks. Each of the Tender Offer and the issuance of the Senior
Subordinated Notes and the Convertible Subordinated Notes shall have been
consummated in accordance with the terms and conditions of the applicable
Documents and all applicable law.
(d) On the Initial Borrowing Date and after giving effect to the
Transaction, the Borrower and its Subsidiaries shall have no Indebtedness or
Preferred Stock outstanding other than (i) the Loans, (ii) the Senior
Subordinated Notes, (iii) the Convertible Subordinated Notes, and (iv) certain
other indebtedness existing on the Initial Borrowing Date as listed on Schedule
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<PAGE>
IV in an aggregate outstanding principal amount not to exceed $10,000,000 (with
the Indebtedness described in this sub-clause (iv) being herein called the
"Existing Indebtedness"). On and as of the Initial Borrowing Date, all of the
Existing Indebtedness shall remain outstanding after giving effect to the
Transaction and the other transactions contemplated hereby without any default
or event of default existing thereunder or arising as a result of the
Transaction and the other transactions contemplated hereby (except to the extent
amended or waived by the parties thereto on terms and conditions satisfactory to
the Agents and the Required Banks), and there shall not be any amendments or
modifications to the Existing Indebtedness Agreements other than as requested or
approved by the Agents or the Required Banks.
(e) The Administrative Agent shall have received evidence in form,
scope and substance satisfactory to the Agents and the Required Banks that the
matters set forth in this Section 5.08 have been satisfied on the Initial
Borrowing Date.
5.09 Security Documents; etc. (a) On the Initial Borrowing Date,
------------------------
each of the Credit Parties shall have duly authorized, executed and delivered a
Pledge Agreement in the form of Exhibit G (as amended, modified or supplemented
from time to time in accordance with the terms thereof and hereof, the "Pledge
Agreement") and shall have delivered to the Collateral Agent, as pledgee
thereunder, all of the Pledged Securities referred to therein then owned by such
Credit Parties and required to be pledged pursuant to the terms thereof,
endorsed in blank in the case of promissory notes or accompanied by executed and
undated stock powers in the case of capital stock, along with evidence that all
other actions necessary or, in the reasonable opinion of the Collateral Agent,
desirable, to perfect the security interests purported to be created by the
Pledge Agreement have been taken, and the Pledge Agreement shall be in full
force and effect.
(b) On the Initial Borrowing Date, each of the Credit Parties shall
have duly authorized, executed and delivered a Security Agreement in the form of
Exhibit H (as amended, modified or supplemented from time to time in accordance
with the terms thereof and hereof, the "Security Agreement") covering all of the
Security Agreement Collateral, together with:
(i) executed copies of Financing Statements (Form UCC-1) or
appropriate local equivalent in appropriate form for filing under the UCC
or appropriate local equivalent of each jurisdiction as may be necessary
or, in the reasonable opinion of the Collateral Agent, desirable to perfect
the security interests purported to be created by the Security Agreement;
(ii) certified copies of Requests for Information or Copies (Form
UCC-11), or equivalent reports, each of a recent date listing all effective
financing statements that name the Borrower or any of its Subsidiaries as
debtor and that are filed in the jurisdictions referred to in clause (i)
above, together with copies of such financing statements (none of which
shall cover the Collateral except (x) those with respect to which
appropriate termination statements executed by the secured lender
thereunder have been delivered to the Administrative Agent and (y) to the
extent evidencing Permitted Liens);
(iii) evidence of the completion of all other recordings and filings
of, or with respect to, the Security Agreement as may be necessary or, in
the reasonable opinion of
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<PAGE>
the Collateral Agent, desirable, to perfect the security interests
purported to be created by the Security Agreement; and
(iv) evidence that all other actions necessary or, in the reasonable
opinion of the Collateral Agent, desirable, to perfect the security
interests purported to be created by the Security Agreement have been
taken;
and the Security Agreement shall be in full force and effect.
5.10 Subsidiaries Guaranty. On the Initial Borrowing Date, each
---------------------
Subsidiary Guarantor shall have duly authorized, executed and delivered a
Subsidiaries Guaranty in the form of Exhibit I (as amended, modified or
supplemented from time to time in accordance with the terms thereof and hereof,
the "Subsidiaries Guaranty"), and the Subsidiaries Guaranty shall be in full
force and effect.
5.11 Employee Benefit Plans; Shareholders' Agreements; Management
------------------------------------------------------------
Agreements; Employment Agreements; Collective Bargaining Agreements; Existing
- -----------------------------------------------------------------------------
Indebtedness Agreements; Material Contracts; Tax Allocation Agreements. On or
- ----------------------------------------------------------------------
prior to the Initial Borrowing Date, there shall have been delivered to the
Administrative Agent, at its request, true and correct copies, certified as true
and complete by an appropriate officer of the Borrower of:
(i) all Plans (and for each Plan that is required to file an annual
report on Internal Revenue Service Form 5500-series, a copy of the most
recent such report (including, to the extent required, the related
financial and actuarial statements and opinions and other supporting
statements, certifications, schedules and information), and for each Plan
that is a "single-employer plan," as defined in Section 4001(a)(15) of
ERISA, the most recently prepared actuarial valuation therefor) and any
other "employee benefit plans," as defined in Section 3(3) of ERISA, and
any other material agreements, plans or arrangements, with or for the
benefit of current or former employees of the Borrower or any of its
Subsidiaries or any ERISA Affiliate (provided that the foregoing shall
apply in the case of any multiemployer plan, as defined in 4001(a)(3) of
ERISA, only to the extent that any document described therein is in the
possession of the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate or reasonably available thereto from the sponsor or trustee of
any such plan) (collectively, the "Employee Benefit Plans");
(ii) all agreements (including, without limitation, shareholders'
agreements, subscription agreements and registration rights agreements)
entered into by the Borrower or any of its Subsidiaries governing the terms
and relative rights of its capital stock and any agreements entered into by
shareholders relating to any such entity with respect to its capital stock
(collectively, the "Shareholders' Agreements");
(iii) all material agreements (other than Employment Agreements) with
members of, or with respect to, the management of the Borrower or any of
its Subsidiaries after giving effect to the Transaction (collectively, the
"Management Agreements");
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<PAGE>
(iv) any material employment agreements entered into by the Borrower
or any of its Subsidiaries after giving effect to the Transaction
(collectively, the "Employment Agreements");
(v) all collective bargaining agreements applying or relating to any
employee of the Borrower or any of its Subsidiaries after giving effect to
the Transaction (collectively, the "Collective Bargaining Agreements");
(vi) all agreements evidencing or relating to any Existing
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
outstanding principal amount equal to or greater than $1,000,000
(collectively, the "Existing Indebtedness Agreements");
(vii) all other material contracts of the Borrower and any of its
Subsidiaries after giving effect to the Transaction (collectively, the
"Material Contracts"); and
(viii) any tax sharing or tax allocation agreements entered into by
the Borrower or any of its Subsidiaries (collectively, the "Tax Allocation
Agreements");
all of which Employee Benefit Plans, Shareholders' Agreements, Management
Agreements, Employment Agreements, Collective Bargaining Agreements, Existing
Indebtedness Agreements, Material Contracts and Tax Allocation Agreements shall
be in form and substance satisfactory to the Agents and the Required Banks and
shall be in full force and effect on the Initial Borrowing Date.
5.12 Consent Letter. On the Initial Borrowing Date, the
--------------
Administrative Agent shall have received a letter from CT Corporation System,
presently located at 1633 Broadway, New York, New York 10019, substantially in
the form of Exhibit J, indicating its consent to its appointment by each Credit
Party as its agent to receive service of process as specified in Section 13.08
or the Subsidiaries Guaranty, as the case may be.
5.13 Solvency Certificate; Insurance Certificates. On or before the
--------------------------------------------
Initial Borrowing Date, the Administrative Agent shall have received:
(a) a solvency certificate in the form of Exhibit K from the chief
financial officer of the Borrower or an opinion from a valuation firm
reasonably acceptable to the Agents and the Required Banks, dated the
Initial Borrowing Date, and supporting the conclusion that, after giving
effect to the Transaction and the incurrence of all financings contemplated
herein, the Borrower (on a stand-alone basis) and the Borrower and its
Subsidiaries (on a consolidated basis), in each case, are not insolvent and
will not be rendered insolvent by the indebtedness incurred in connection
herewith, will not be left with unreasonably small capital with which to
engage in its or their respective businesses and will not have incurred
debts beyond its or their ability to pay such debts as they mature and
become due; and
(b) evidence of insurance complying with the requirements of Section
8.03 for the business and properties of the Borrower and its Subsidiaries,
in scope, form and substance reasonably satisfactory to the Agents and the
Required Banks and naming the Collateral Agent as an additional insured
and/or loss payee, and stating that such
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<PAGE>
insurance shall not be canceled or revised without at least 30 days' prior
written notice by the insurer to the Collateral Agent.
5.14 Financial Statements; Pro Forma Financial Statements;
-----------------------------------------------------
Projections. (a) On or prior to the Initial Borrowing Date, there shall have
- -----------
been delivered to the Administrative Agent (i) true and correct copies of the
financial statements referred to in Section 7.10(b) and (ii) an unaudited pro
---
forma consolidated balance sheet of the Borrower and its Subsidiaries as of
- -----
December 31, 1998 and the related pro forma statement of income and cash flows
--- -----
for the fiscal year ended as of such date and, after giving effect to the
Transaction and the incurrence of all Indebtedness (including the Loans, the
Senior Subordinated Notes and the Convertible Subordinated Notes) contemplated
herein and prepared in accordance with GAAP (the "Pro Forma Financial
--- -----
Statements"), together with a related funds flow statement, which financial
statements, Pro Forma Financial Statements and funds flow statement shall be
--- -----
reasonably satisfactory to the Agents and the Required Banks.
(b) On or prior to the Initial Borrowing Date, there shall have been
delivered to the Administrative Agent detailed projected consolidated financial
statements of the Borrower and its Subsidiaries certified by the chief financial
officer or chief operating officer of the Borrower for the ten fiscal years
ended after the Initial Borrowing Date (the "Projections"), which Projections
(x) shall reflect the forecasted consolidated financial conditions and income
and expenses of the Borrower and its Subsidiaries after giving effect to the
Transaction and the related financing thereof and the other transactions
contemplated hereby and (y) shall be reasonably satisfactory in form and
substance to the Agents and the Required Banks.
5.15 Payment of Fees. On the Initial Borrowing Date, all costs, fees
---------------
and expenses, and all other compensation due to the Agents or the Banks
(including, without limitation, legal fees and expenses) shall have been paid to
the extent due.
SECTION 6. Conditions Precedent to All Credit Events. The obligation
-----------------------------------------
of each Bank to make Loans (including Loans made on the Initial Borrowing Date
and on each Additional Loan Commitment Date, but excluding Mandatory Borrowings
made after the Initial Borrowing Date, which shall be made as provided in
Section 1.01(d)), and the obligation of a Letter of Credit Issuer to issue any
Letter of Credit, is subject, at the time of each such Credit Event (except as
hereinafter indicated), to the satisfaction of the following conditions:
6.01 No Default; Representations and Warranties. At the time of each
------------------------------------------
such Credit Event and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein or in any other Credit Document shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on the date of such Credit Event (it being understood
and agreed that any representation or warranty which by its terms is made as of
a specified date shall be required to be true and correct in all material
respects only as of such specified date).
6.02 Notice of Borrowing; Letter of Credit Request. (a) Prior to
---------------------------------------------
the making of each Loan (excluding Swingline Loans and Mandatory Borrowings),
the Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a). Prior to
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<PAGE>
the making of any Swingline Loan, BTCo shall have received the notice required
by Section 1.03(b)(i).
(b) Prior to the issuance of each Letter of Credit, the
Administrative Agent and the respective Letter of Credit Issuer shall have
received a Letter of Credit Request meeting the requirements of Section 2.02(a).
6.03 Compliance With Indentures. (a) At the time of each such Credit
--------------------------
Event (so long as any Convertible Subordinated Note remains outstanding), (i)
each Credit Event shall comply with the requirements of Section 1007 of the
Convertible Subordinated Notes Indenture and all other applicable covenants
contained therein, (ii) the Borrower shall have delivered to the Administrative
Agent an officer's certificate signed by an appropriate officer of the Borrower
(which certificate may be incorporated into the applicable Notice of Borrowing),
in form and substance satisfactory to the Agents, (x) establishing that such
Credit Event does not violate the terms of the Convertible Subordinated Notes
Indenture and specifically stating that the respective Credit Event does not,
and will not violate Section 1007 of the Convertible Subordinated Notes
Indenture, (y) containing a representation and warranty that the Indebtedness
incurred pursuant to such Credit Event constitutes "Senior Indebtedness",
"Designated Senior Indebtedness" and "Senior Credit Facility Indebtedness" under
the Convertible Subordinated Notes Indenture and (z) specifying (I) the amount
of Indebtedness then outstanding under each Tranche (prior to giving effect to
the respective Credit Event) and incurred in reliance upon each of clauses (x)
and (y) of the exception contained in Section 1007 of the Convertible
Subordinated Notes Indenture and (II) the amount of Indebtedness under each
Tranche to be incurred pursuant to the respective Credit Event in reliance upon
each of clauses (x) and (y) of the exception contained in Section 1007 of the
Convertible Subordinated Notes Indenture, which officer's certificate shall (I)
in the case of any Credit Event to be justified in whole or in part in reliance
on clause (x) of said Section 1007, be accompanied by financial calculations (in
form and substance reasonably satisfactory to the Agents) establishing
compliance with a Consolidated Leverage Ratio (as defined in the Convertible
Subordinated Notes Indenture) of less than 4.0:1.0 (after giving effect to the
respective Credit Event) as required by Section 1007 of the Convertible
Subordinated Notes Indenture and (II) in the case of any Credit Event to be
justified in whole or in part in reliance on clause (y) of said Section 1007,
contain a representation and warranty that the relevant portion of such
Indebtedness is permitted to be incurred in reliance on said clause (y) and
(iii) if requested by any Agent or the Required Banks (which request may only be
made by such Agent or the Required Banks if such Agent or the Required Banks, as
the case may be, has or have reasonable doubts as to the compliance by the
Borrower with the applicable requirements of the Convertible Subordinated Notes
Indenture after giving effect to the respective such Credit Event), the Banks
shall have received an opinion of counsel (which opinion shall be reasonably
satisfactory to the respective Agent or Required Banks requesting same) as may
be reasonably requested to assure the Banks that the requirements of this
Section 6.03(a) and Section 1007 of the Convertible Subordinated Notes Indenture
are satisfied and that the Indebtedness incurred pursuant to such Credit Event
constitutes "Senior Indebtedness", "Designated Senior Indebtedness" and
"Senior Credit Facility Indebtedness" thereunder.
(b) At the time of each such Credit Event (so long as any Senior
Subordinated Note remains outstanding), (i) each Credit Event shall comply with
the requirements of Section 4.04 of the Senior Subordinated Notes Indenture and
all other applicable covenants contained
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<PAGE>
therein, (ii) the Borrower shall have delivered to the Administrative Agent an
officer's certificate signed by an appropriate officer of the Borrower (which
certificate may be incorporated into the applicable Notice of Borrowing), in
form and substance satisfactory to the Agents, (x) establishing that such Credit
Event does not violate the terms of the Senior Subordinated Notes Indenture and
specifically stating that the respective Credit Event does not, and will not
violate Section 4.04 of the Senior Subordinated Notes Indenture, (y) containing
a representation and warranty that the Indebtedness incurred pursuant to such
Credit Event constitutes "Senior Debt" and "Designated Senior Debt" under the
Senior Subordinated Notes Indenture and (z) specifying (I) the amount of
Indebtedness then outstanding under each Tranche (prior to giving effect to the
respective Credit Event) and incurred in reliance on clause (ii) (or any other
relevant clause) of the definition of "Permitted Indebtedness" in the Senior
Subordinated Notes Indenture and in reliance on the proviso to Section 4.04 of
the Senior Subordinated Notes Indenture and (II) the amount of Indebtedness
under each Tranche to be incurred pursuant to the respective Credit Event in
reliance upon clause (ii) (or any other relevant clause) of the definition of
"Permitted Indebtedness" in the Senior Subordinated Notes Indenture and the
proviso to Section 4.04 thereof, which officer's certificate shall (I) in the
case of any Credit Event to be justified in whole or in part in reliance on the
proviso to said Section 4.04, be accompanied by financial calculations (in form
and substance reasonably satisfactory to the Agents) establishing compliance
with a Consolidated Fixed Charge Coverage Ratio (as defined in the Senior
Subordinated Notes Indenture) of greater than 2.25:1.0 (if the respective
incurrence occurs on or prior to November 1, 2000) and 2.50:1.0 (if the
respective incurrence occurs after November 1, 2000) (in each case, after giving
effect to the respective Credit Event) as required by Section 4.04 of the Senior
Subordinated Notes Indenture and (II) in the case of any Credit Event to be
justified in whole or in part in reliance on clause (ii) (or any other relevant
clause) of the definition of "Permitted Indebtedness" contained in the Senior
Subordinated Notes Indenture, contain a representation and warranty that the
relevant portion of such Indebtedness is permitted to be incurred in reliance on
said clause (ii) (and/or such other relevant clause) and (iii) if requested by
any Agent or the Required Banks (which request may only be made by such Agent or
the Required Banks if such Agent or the Required Banks, as the case may be, has
or have reasonable doubts as to the compliance by the Borrower with the
applicable requirements of the Senior Subordinated Notes Indenture after giving
effect to the respective such Credit Event), the Banks shall have received an
opinion of counsel (which opinion shall be reasonably satisfactory to the
respective Agent or Required Banks requesting same) as may be reasonably
requested to assure the Banks that the requirements of this Section 6.03(b) and
Section 4.04 of the Senior Subordinated Notes Indenture are satisfied and that
the Indebtedness incurred pursuant to such Credit Event constitutes "Senior
Debt" and "Designated Senior Debt" thereunder.
The occurrence of the Initial Borrowing Date and the acceptance of the
benefits or proceeds of each Credit Event shall constitute a representation and
warranty by the Borrower to each Agent and each of the Banks that all the
conditions specified in Section 5 and in this Section 6 and applicable to such
Credit Event (other than such conditions that are subject to the satisfaction of
the Agents and/or the Required Banks) exist as of that time. All of the Notes,
certificates, legal opinions and other documents and papers referred to in
Section 5 and in this Section 6, unless otherwise specified, shall be delivered
to the Administrative Agent at the Notice Office for the account of each of the
Banks and, except for the Notes, in sufficient counterparts or copies for each
of the Banks and shall be in form and substance satisfactory to the Banks.
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<PAGE>
SECTION 7. Representations and Warranties. In order to induce the
------------------------------
Banks to enter into this Agreement and to make the Loans and issue and/or
participate in the Letters of Credit provided for herein, the Borrower makes the
following representations and warranties with the Banks, all of which shall
survive the execution and delivery of this Agreement, the making of the Loans
and the issuance of the Letters of Credit (with the occurrence of the Initial
Borrowing Date and each Credit Event on or after the Initial Borrowing Date
being deemed to constitute a representation and warranty that the matters
specified in this Section 7 are true and correct in all material respects on and
as of the Initial Borrowing Date and the date of each such Credit Event, unless
stated to relate to a specific earlier date in which case such representations
and warranties shall be true and correct in all material respects as of such
earlier date):
7.01 Company Status. Each of the Borrower and each of its
--------------
Subsidiaries (i) is a duly organized and validly existing Company in good
standing under the laws of the jurisdiction of its organization (other than, if
this representation is being made at any time prior to the 30th day following
the Initial Borrowing Date, Brick, Inc., a Tennessee corporation, Flor-Shin,
Inc, a South Carolina corporation, and Brazosport Management, Inc., a Texas
corporation), (ii) has the Company power and authority to own its property and
assets and to transact the business in which it is engaged and presently
proposes to engage and (iii) is duly qualified and is authorized to do business
and is in good standing in all jurisdictions where it is required to be so
qualified and where the failure to be so qualified would have a Material Adverse
Effect.
7.02 Company Power and Authority. Each Credit Party has the Company
---------------------------
power and authority to execute, deliver and carry out the terms and provisions
of the Documents to which it is a party and has taken all necessary Company
action to authorize the execution, delivery and performance of the Documents to
which it is a party. Each Credit Party has duly executed and delivered each
Document to which it is a party and each such Document constitutes the legal,
valid and binding obligation of such Credit Party enforceable in accordance with
its terms, except to the extent that the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
generally affecting creditors' rights and by equitable principles (regardless of
whether enforcement is sought in equity or at law).
7.03 No Violation. Neither the execution, delivery or performance by
------------
any Credit Party of the Documents to which it is a party, nor compliance by any
Credit Party with the terms and provisions thereof, nor the consummation of the
transactions contemplated herein or therein, (i) will contravene any material
provision of any applicable law, statute, rule or regulation, or any order,
writ, injunction or decree of any court or governmental instrumentality, (ii)
will conflict or be inconsistent with or result in any breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
(other than pursuant to the Security Documents) result in the creation or
imposition of (or the obligation to create or impose) any Lien upon any of the
property or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, credit
agreement or any other material agreement or instrument to which the Borrower or
any of its Subsidiaries is a party or by which it or any of its property or
assets are bound or to which it may be subject (including, without limitation,
the Existing Indebtedness Agreements, the Senior Subordinated Notes Documents
and the Convertible Subordinated Notes Documents) or (iii) will violate any
provision of the certificate of incorporation, by-laws, certificate of
partnership, partnership agreement, certificate
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<PAGE>
of limited liability company, limited liability company agreement or equivalent
organizational document, as the case may be, of the Borrower or any of its
Subsidiaries.
7.04 Litigation. There are no actions, suits, proceedings or
----------
investigations pending or threatened (i) with respect to any Credit Document,
(ii) with respect to the Transaction or any other Document that could reasonably
be expected to have a Material Adverse Effect, or (iii) with respect to the
Borrower or any of its Subsidiaries (x) that are likely to have a Material
Adverse Effect or (y) that could reasonably be expected to have a material
adverse effect on the rights or remedies of the Agents or the Banks or on the
ability of any Credit Party to perform its respective obligations to the Agents
or the Banks hereunder and under the other Credit Documents to which it is, or
will be, a party. Additionally, there does not exist any judgment, order or
injunction prohibiting or imposing material adverse conditions upon the
occurrence of any Credit Event.
7.05 Use of Proceeds; Margin Regulations. (a) The proceeds of
-----------------------------------
Tranche A Term Loans shall be utilized by the Borrower (i) on the Initial
Borrowing Date (x) to fund the BT Tender Offer Account (so long as same are
thereafter paid over to the Tender Offer Paying Agent and applied to finance the
Common Stock Repurchase and/or, upon the termination of the Tender Offer
Adjustment Period, released to the Borrower and thereafter applied as provided
in clause (ii) below and/or Section 4.02(f)) and (y) to pay fees and expenses
(not to exceed $30.0 million) incurred in connection with the Transaction and
(ii) at any time prior to the 90th day following the Initial Borrowing Date, to
purchase Borrower Common Stock on the open-market pursuant to, and in accordance
with the requirements of, Section 9.06(viii).
(b) The proceeds of all Revolving Loans and Swingline Loans shall be
utilized for the general corporate and working capital purposes of the Borrower
and its Subsidiaries (including Permitted Acquisitions and the prepayment of
Existing Indebtedness and purchases of Senior Subordinated Notes in accordance
with the terms of Section 9.12(ii) and purchases of Borrower Common Stock in
accordance with 9.06(viii) but excluding payments in connection with the
Transaction except as provided in the proviso below), provided, however, that
-------- -------
proceeds of Revolving Loans in an aggregate amount not to exceed $68,000,000 may
be utilized by the Borrower for the purposes described in Section 7.05(a)(i)
above.
(c) The proceeds of all Tranche B Term Loans shall be utilized by the
Borrower on the date of incurrence thereof to finance Permitted Acquisitions or
repay outstanding Revolving Loans in accordance with the provisions of Section
4.01.
(d) Neither the making of any Loan, nor the use of the proceeds
thereof, nor the occurrence of any other Credit Event, will violate or be
inconsistent with the provisions of Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
(e) The fair market value of all Margin Stock owned by the Borrower
and its Subsidiaries does not exceed $1,000,000. At the time of each Credit
Event occurring on or after the Initial Borrowing Date, not more than 25% of the
value of the assets of the Borrower and its Subsidiaries taken as a whole will
constitute Margin Stock.
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7.06 Governmental Approvals. Except as may have been obtained or
----------------------
made on or prior to the Initial Borrowing Date (and which remain in full force
and effect on the Initial Borrowing Date), no order, consent, approval, license,
authorization or validation of, or filing, recording or registration with, or
exemption by, any foreign or domestic governmental or public body or authority,
or any subdivision thereof, is required to authorize or is required in
connection with (i) the execution, delivery and performance of any Document or
(ii) the legality, validity, binding effect or enforceability of any Document.
7.07 Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
7.08 Public Utility Holding Company Act. Neither the Borrower nor
----------------------------------
any of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
7.09 True and Complete Disclosure. All factual information (taken as
----------------------------
a whole) heretofore or contemporaneously furnished by or on behalf of the
Borrower or any of its Subsidiaries in writing to any Agent or any Bank
(including, without limitation, all information contained in the Documents) for
purposes of or in connection with this Agreement or any transaction contemplated
herein or therein is, and all other such factual information (taken as a whole)
hereafter furnished by or on behalf of any such Persons in writing to any Agent
or any Bank will be, true and accurate in all material respects on the date as
of which such information is dated or certified and not incomplete by omitting
to state any material fact necessary to make such information (taken as a whole)
not misleading at such time in light of the circumstances under which such
information was provided. The Projections and pro forma financial information
--- -----
contained in such materials are based on good faith estimates and assumptions
believed by the Borrower to be reasonable at the time made, it being recognized
by the Banks that such projections of future events are not to be viewed as
facts and that actual results during the period or periods covered by any such
projection may differ from the projected results contained therein.
7.10 Financial Condition; Financial Statements. (a) On and as of
-----------------------------------------
the Initial Borrowing Date, on a pro forma basis after giving effect to the
--- -----
Transaction and to all Indebtedness (including the Loans, the Senior
Subordinated Notes and the Convertible Subordinated Notes) incurred, and to be
incurred, and Liens created, and to be created, by each Credit Party in
connection therewith, with respect to the Borrower (on a stand-alone basis) and
the Borrower and its Subsidiaries (on a consolidated basis) (x) the sum of the
assets, at a fair valuation, of the Borrower (on a stand-alone basis) and the
Borrower and its Subsidiaries (on a consolidated basis) will exceed its or their
debts, (y) it has or they have not incurred nor intended to, nor believes or
believe that it or they will, incur debts beyond its or their ability to pay
such debts as such debts mature and (z) it or they will have sufficient capital
with which to conduct its or their business. For purposes of this Section 7.10,
"debt" means any liability on a claim, and "claim" means (i) right to payment,
whether or not such a right is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured or (ii) right to an equitable remedy for breach of
performance if
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such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed,
undisputed, secured or unsecured.
(b) (i) The consolidated balance sheet of the Borrower and its
consolidated Subsidiaries at December 31, 1998 and the related statements of
income and cash flows and changes in shareholders' equity of the Borrower for
the fiscal year ended as of said date, and (ii) the Pro Forma Financial
--- -----
Statements, in each case furnished to each Bank prior to the Initial Borrowing
Date pursuant to Section 5.14(a), present fairly in all material respects the
consolidated financial condition of the Borrower and its Subsidiaries at the
date of said financial statements and the results for the period covered thereby
(or, in the case of the Pro Forma Financial Statements, presents a good faith
--- -----
estimate of the consolidated pro forma financial condition of the Borrower
--- -----
(after giving effect to the Transaction at the date thereof)). All such
financial statements (other than the aforesaid Pro Forma Financial Statements)
--- -----
have been prepared in accordance with GAAP consistently applied except to the
extent provided in the notes to said financial statements.
(c) Since December 31, 1998 (but after giving effect to the
Transaction as if same had occurred prior thereto), nothing has occurred that
has had or could reasonably be expected to have a Material Adverse Effect.
(d) Except as fully reflected in the financial statements described
in Section 7.10(b) and the Indebtedness incurred under this Agreement and the
Senior Subordinated Notes, (i) there were as of the Initial Borrowing Date (and
after giving effect to any Loans made on such date), no liabilities or
obligations with respect to the Borrower or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in the aggregate, could
reasonably be expected to be material to the Borrower and its Subsidiaries taken
as a whole or the Borrower and (ii) the Borrower does not know of any basis for
the assertion against the Borrower or any of its Subsidiaries of any such
liability or obligation which, either individually or in the aggregate, are or
would be reasonably likely to have, a Material Adverse Effect.
(e) The Projections have been prepared on a basis consistent with the
financial statements referred to in Section 7.10(b), and are based on good faith
estimates and assumptions made by the management of the Borrower, which
assumptions such management believed were reasonable on the Initial Borrowing
Date. On the Initial Borrowing Date, such management believed that the
Projections were reasonable and attainable. There is no fact known to the
Borrower or any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, which has not been disclosed herein or in such other
documents, certificates and statements furnished to the Banks for use in
connection with the transactions contemplated hereby.
7.11 Security Interests. On and after the Initial Borrowing Date,
------------------
each of the Security Documents creates (or after the execution and delivery
thereof will create), as security for the Obligations, a valid and enforceable
perfected security interest in and Lien on all of the Collateral subject
thereto, superior to and prior to the rights of all third Persons, and subject
to no other Liens (except that (i) the Security Agreement Collateral may be
subject to Permitted Liens relating thereto and (ii) the Pledge Agreement
Collateral may be subject to the Liens described in
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clauses (a) and (e) of Section 9.03), in favor of the Collateral Agent. No
filings or recordings are required in order to perfect the security interests
created under any Security Document except for filings or recordings required in
connection with any such Security Document which shall have been made on or
prior to the Initial Borrowing Date as contemplated by Section 5.09 or on or
prior to the execution and delivery thereof as contemplated by Sections 8.11,
8.12 and 9.15.
7.12 Compliance with ERISA. Schedule V sets forth each Plan; each
---------------------
Plan (and each related trust, insurance contract or fund) is in substantial
compliance with its terms and with all applicable laws, including without
limitation ERISA and the Code; each Plan (and each related trust, if any) which
is intended to be qualified under Section 401(a) of the Code has received or has
applied for or will apply for within the applicable remedial amendment period, a
determination letter from the Internal Revenue Service to the effect that it
meets the requirements of Sections 401(a) and 501(a) of the Code; no Reportable
Event has occurred; no Plan which is a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) is insolvent or in reorganization; no Plan has an Unfunded
Current Liability; no Plan which is subject to Section 412 of the Code or
Section 302 of ERISA has an accumulated funding deficiency, within the meaning
of such sections of the Code or ERISA, or has applied for or received a waiver
of an accumulated funding deficiency or an extension of any amortization period,
within the meaning of Section 412 of the Code or Section 303 or 304 of ERISA;
except as could not result in a material liability, all contributions required
to be made with respect to a Plan have been timely made; neither the Borrower
nor any Subsidiary of the Borrower nor any ERISA Affiliate has incurred any
material liability (including any indirect, contingent or secondary liability)
to or on account of a Plan pursuant to Section 409, 502(i), 502(l), 515, 4062,
4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971 or
4975 of the Code or expects to incur any such liability under any of the
foregoing sections with respect to any Plan; no condition exists which presents
a material risk to the Borrower or any Subsidiary of the Borrower or any ERISA
Affiliate of incurring a liability to or on account of a Plan pursuant to the
foregoing provisions of ERISA and the Code; no proceedings have been instituted
to terminate or appoint a trustee to administer any Plan which is subject to
Title IV of ERISA; no action, suit, proceeding, hearing, audit or investigation
with respect to the administration, operation or the investment of assets of any
Plan (other than routine claims for benefits) is pending, expected or
threatened; using actuarial assumptions and computation methods consistent with
Part 1 of subtitle E of Title IV of ERISA, the aggregate liabilities of the
Borrower and its Subsidiaries and its ERISA Affiliates to all Plans which are
multiemployer plans (as defined in Section 4001(a)(3) of ERISA) in the event of
a complete withdrawal therefrom, as of the close of the most recent fiscal year
of each such Plan ended prior to the date of the most recent Credit Event, would
not exceed $50,000; each group health plan (as defined in Section 607(1) of
ERISA or Section 4980B(g)(2) of the Code) which covers or has covered employees
or former employees of the Borrower, any Subsidiary of the Borrower or any ERISA
Affiliate has at all times been operated in compliance with the provisions of
Part 6 of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien
imposed under the Code or ERISA on the assets of the Borrower or any Subsidiary
of the Borrower or any ERISA Affiliate exists or is likely to arise on account
of any Plan; and the Borrower and its Subsidiaries may cease contributions to or
terminate any employee benefit plan maintained by any of them without incurring
any material liability.
7.13 Capitalization. On the Initial Borrowing Date and after giving
--------------
effect to the Transaction (other than the Common Stock Repurchase), the
authorized capital stock of the
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Borrower shall consist of (i) 250,000,000 shares of common stock, $.001 par
value per share (such authorized shares of common stock, together with any
subsequently authorized shares of common stock of the Borrower, the "Borrower
Common Stock"), 46,311,961 of which shares shall be issued and outstanding and
(ii) 500,000 shares of convertible non-voting common stock, $.001 par value per
share, none of which shares shall be issued and outstanding. Except as set forth
on Schedule X hereto, all such outstanding shares have been duly and validly
issued, are fully paid and nonassessable and have been issued free of preemptive
rights.
7.14 Subsidiaries. On and as of the Initial Borrowing Date and after
------------
giving effect to the Transaction, the Borrower has no Subsidiaries other than
those Subsidiaries listed on Schedule VII. Schedule VII correctly sets forth,
as of the Initial Borrowing Date and after giving effect to the Transaction, the
percentage ownership (direct and indirect) of the Borrower in each class of
capital stock or other equity interests of each of its Subsidiaries and also
identifies the direct owner thereof. All outstanding shares of capital stock of
each Subsidiary of the Borrower have been duly and validly issued, are fully
paid and non-assessable and have been issued free of preemptive rights. No
Subsidiary of the Borrower has outstanding any securities convertible into or
exchangeable for its capital stock or outstanding any right to subscribe for or
to purchase, or any options or warrants for the purchase of, or any agreement
providing for the issuance (contingent or otherwise) of or any calls,
commitments or claims of any character relating to, its capital stock or any
stock appreciation or similar rights.
7.15 Intellectual Property, etc. Each of the Borrower and each of
---------------------------
its Subsidiaries owns all patents, trademarks, permits, service marks, trade
names, technology copyrights, licenses, franchises and formulas, or other rights
with respect to the foregoing, and has obtained assignments of all leases and
other rights of whatever nature, and has in full force and effect all
accreditations and certifications, reasonably necessary for the conduct of its
business, without any known conflict with the rights of others which, or the
failure to obtain which, as the case may be, would result in a Material Adverse
Effect.
7.16 Compliance with Statutes, etc. Each of the Borrower and each of
------------------------------
its Subsidiaries is in compliance with all applicable statutes, regulations,
rules and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except such non-compliance as is not
likely to, individually or in the aggregate, have a Material Adverse Effect.
7.17 Environmental Matters. (a) Each of the Borrower and each of
---------------------
its Subsidiaries has complied with, and on the date of each Credit Event is in
compliance with, all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws and neither the Borrower nor any of
its Subsidiaries is liable for any material penalties, fines or forfeitures for
failure to comply with any of the foregoing. There are no pending or past or, to
the best knowledge of the Borrower, threatened Environmental Claims against the
Borrower or any of its Subsidiaries or any Real Property owned or operated by
the Borrower or any of its Subsidiaries. There are no facts, circumstances,
conditions or occurrences on any Real Property owned or operated by the Borrower
or any of its Subsidiaries or on any property adjoining or in the vicinity of
any such Real Property that would reasonably be expected (i) to form the basis
of an Environmental Claim against the Borrower or any of its Subsidiaries or any
such Real Property or (ii) to cause any such Real Property to be subject to any
restrictions on
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<PAGE>
the ownership, occupancy, use or transferability of such Real Property by the
Borrower or any of its Subsidiaries under any applicable Environmental Law.
(b) Hazardous Materials have not at any time been generated, used,
treated or stored on, or transported to or from, any Real Property owned or
operated by the Borrower or any of its Subsidiaries except in compliance with
all applicable Environmental Laws and reasonably required in connection with the
operation, use and maintenance of such Real Property by the Borrower's or such
Subsidiary's business. Hazardous Materials have not at any time been Released
on or from any Real Property owned or operated by the Borrower or any of its
Subsidiaries or by any person acting for or under contract to the Borrower or
any of its Subsidiaries, or to the knowledge of the Borrower, by any other
Person, except in compliance with all applicable Environmental Laws.
(c) Notwithstanding anything to the contrary in this Section 7.17,
the representations made in this Section 7.17 shall only be untrue if the
aggregate effect of all conditions, failures, noncompliances, Environmental
Claims, Hazardous Materials Releases and presence of underground storage tanks,
in each case of the types described above, would reasonably be expected to have
a Material Adverse Effect.
7.18 Properties. All Real Property owned by the Borrower or any of
----------
its Subsidiaries and all material Leaseholds leased by the Borrower or any of
its Subsidiaries, in each case as of the Initial Borrowing Date and after giving
effect to the Transaction, and the nature of the interest therein, is correctly
set forth in Schedule III. Each of the Borrower and each of its Subsidiaries
has good and marketable title to, or a validly subsisting leasehold interest in,
all material properties owned or leased by it, including all Real Property
reflected in Schedule III and in the financial statements (including the Pro
---
Forma Balance Sheet) referred to in Section 7.10(b) (except such properties sold
- -----
in the ordinary course of business since the dates of the respective financial
statements referred to therein), free and clear of all Liens, other than
Permitted Liens.
7.19 Labor Relations. Neither the Borrower nor any of its
---------------
Subsidiaries is engaged in any unfair labor practice that could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint pending against the Borrower or any of its Subsidiaries or
threatened against any of them, before the National Labor Relations Board, and
no grievance or arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Borrower or any of its
Subsidiaries or threatened against any of them, (ii) no strike, labor dispute,
slowdown or stoppage pending against the Borrower or any of its Subsidiaries or
threatened against the Borrower or any of its Subsidiaries and (iii) no union
representation question existing with respect to the employees of the Borrower
or any of its Subsidiaries and no union organizing activities are taking place,
except (with respect to any matter specified in clause (i), (ii) or (iii) above,
either individually or in the aggregate) such as is not reasonably likely to
have a Material Adverse Effect.
7.20 Tax Returns and Payments. Each of the Borrower and each of its
------------------------
Subsidiaries has filed all federal income tax returns and all other material tax
returns, domestic and foreign, required to be filed by it and has paid all
material taxes and assessments payable by it which have become due, except for
those contested in good faith and adequately disclosed and
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fully provided for on the financial statements of the Borrower and its
Subsidiaries in accordance with generally accepted accounting principles. Each
of the Borrower and each of its Subsidiaries has at all times paid, or have
provided adequate reserves (in the good faith judgment of the management of the
Borrower) for the payment of, all federal, state and foreign income taxes
applicable for all prior fiscal years and for the current fiscal year to date.
There is no material action, suit, proceeding, investigation, audit, or claim
now pending or, to the knowledge of the Borrower or any of its Subsidiaries,
threatened by any authority regarding any taxes relating to the Borrower or any
of its Subsidiaries. Neither the Borrower nor any of its Subsidiaries has
entered into an agreement or waiver or been requested to enter into an agreement
or waiver extending any statute of limitations relating to the payment or
collection of taxes of the Borrower or any of its Subsidiaries, or is aware of
any circumstances that would cause the taxable years or other taxable periods of
the Borrower or any of its Subsidiaries not to be subject to the normally
applicable statute of limitations.
7.21 Existing Indebtedness. Schedule IV sets forth a true and
---------------------
complete list of all Existing Indebtedness of the Borrower and its Subsidiaries
as of the Initial Borrowing Date after giving effect to the Transaction, in each
case showing the aggregate principal amount thereof and the name of the
respective borrower and any other entity which directly or indirectly guaranteed
such debt.
7.22 Insurance. Set forth on Schedule VIII hereto is a true, correct
---------
and complete summary of all insurance carried by each Credit Party on and as of
the Initial Borrowing Date, with the amounts insured set forth therein.
7.23 Representations and Warranties in Other Documents. All
-------------------------------------------------
representations and warranties set forth in the other Documents were true and
correct in all material respects at the time as of which such representations
and warranties were made (or deemed made) and shall be true and correct in all
material respects as of the Initial Borrowing Date as if such representations or
warranties were made on and as of such date, unless stated to relate to a
specific earlier date, in which case such representations or warranties shall be
true and correct in all material respects as of such specified date.
7.24 Transaction. At the time of consummation thereof, each element
-----------
of the Transaction shall have been consummated in accordance with the terms of
the relevant Documents therefor and all applicable laws. At the time of
consummation thereof, all consents and approvals of, and filings and
registrations with, and all other actions in respect of, all governmental
agencies, authorities or instrumentalities required in order to make or
consummate each element of the Transaction in accordance with the terms of the
relevant Documents therefor and all applicable laws have been obtained, given,
filed or taken and are or will be in full force and effect (or effective
judicial relief with respect thereto has been obtained). All applicable waiting
periods with respect thereto have or, prior to the time when required, will
have, expired without, in all such cases, any action being taken by any
competent authority which restrains, prevents, or imposes material adverse
conditions upon the Transaction. Additionally, there does not exist any
judgment, order or injunction prohibiting or imposing material adverse
conditions upon any element of the Transaction, the occurrence of any Credit
Event, or the performance by the Borrower and its Subsidiaries of their
respective obligations under the Documents and all applicable laws.
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7.25 Year 2000 Compliance. All Information Systems and Equipment are
--------------------
either Year 2000 Compliant, or any reprogramming, remediation, or any other
corrective action, including the internal testing of all such Information
Systems and Equipment, will be completed in all material respects by September
30, 1999. Further, to the extent that such reprogramming/remediation and
testing action is required, the cost thereof, as well as the cost of the
reasonably foreseeable consequences of failure to become Year 2000 Compliant, to
the Borrower and its Subsidiaries (including, without limitation, reprogramming
errors and the failure of other systems or equipment) will not (x) result in a
Default or an Event of Default or (y) have a Material Adverse Effect.
7.26 Subordination. The subordination provisions contained in the
-------------
Senior Subordinated Notes Documents and the Convertible Subordinated Notes
Documents and, on and after the execution and delivery thereof, each of the
agreements or instruments relating to Permitted Subordinated Refinancing
Indebtedness, the Shareholder Subordinated Notes and Permitted Subordinated
Indebtedness are enforceable against the Borrower, the Subsidiary Guarantors and
the holders of such Indebtedness, except to the extent that the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought in equity or
at law), and all Obligations hereunder and the obligations of the Credit Parties
under the other Credit Documents (including, without limitation, the
Subsidiaries Guaranty) are within the definitions of "Senior Debt" (or in the
case of the obligations of a Subsidiary Guarantor, "Guarantor Senior Debt"),
"Senior Indebtedness" (or in the case of the obligations of a Subsidiary
Guarantor, "Guarantor Senior Indebtedness"), "Designated Senior Debt" and
"Designated Senior Indebtedness", as applicable, included in such subordination
provisions.
SECTION 8. Affirmative Covenants. The Borrower hereby covenants and
---------------------
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Total Commitment has terminated, no Letters
of Credit or Notes are outstanding and the Loans and Unpaid Drawings, together
with interest, Fees and all other Obligations (other than any indemnities
described in Section 13.13 which are not then due and payable) incurred
hereunder, are paid in full:
8.01 Information Covenants. The Borrower will furnish to each Bank:
---------------------
(a) Monthly Reports. Within 30 days after the end of each fiscal
---------------
month of the Borrower (other than the last fiscal month of a quarterly
accounting period of the Borrower), the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal month and the
related consolidated statements of income and retained earnings for such
fiscal month and for the elapsed portion of the fiscal year ended with the
last day of such fiscal month, in each case setting forth comparative
figures for the corresponding fiscal month in the prior fiscal year and
comparable budgeted figures for such fiscal month as set forth in the
respective budget delivered pursuant to Section 8.01(d), all of which shall
be certified by the chief financial officer or other Authorized Officer of
the Borrower, subject to normal year-end audit adjustments and the absence
of footnotes.
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(b) Quarterly Financial Statements. Within 45 days after the close
------------------------------
of the first three quarterly accounting periods in each fiscal year of the
Borrower, (i) the consolidated balance sheet of the Borrower and its
Subsidiaries as at the end of such quarterly accounting period and the
related consolidated statements of income and retained earnings and of cash
flows for such quarterly accounting period and for the elapsed portion of
the fiscal year ended with the last day of such quarterly accounting period
and the budgeted figures for such quarterly period as set forth in the
respective budget delivered pursuant to Section 8.01(d) and (ii)
management's discussion and analysis of the most important operational and
financial developments during such quarterly period, all of which shall be
in reasonable detail and certified by the chief financial officer or other
Authorized Officer of the Borrower that they fairly present in all material
respects the financial condition of the Borrower and its Subsidiaries as of
the dates indicated and the results of their operations and changes in
their cash flows for the periods indicated, subject to normal year-end
audit adjustments and the absence of footnotes.
(c) Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year of the Borrower, the consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year and the
related consolidated statements of income and retained earnings and of cash
flows for such fiscal year and setting forth comparative consolidated
figures for the preceding fiscal year and comparable budgeted figures for
such fiscal year as set forth in the respective budget delivered pursuant
to Section 8.01(d) and (except for such comparable budgeted figures)
certified by PriceWaterhouseCoopers LLP or such other independent certified
public accountants of recognized national standing as shall be reasonably
acceptable to the Administrative Agent, in each case to the effect that
such statements fairly present in all material respects the financial
condition of the Borrower and its Subsidiaries as of the dates indicated
and the results of their operations and changes in financial position for
the periods indicated in conformity with GAAP applied on a basis consistent
with prior years, together with a certificate of such accounting firm
stating that in the course of its regular audit of the business of the
Borrower and its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, no Default or Event of Default which
has occurred and is continuing has come to their attention or, if such a
Default or an Event of Default has come to their attention, a statement as
to the nature thereof.
(d) Budgets, etc. Not more than 60 days after the commencement of
-------------
each fiscal year of the Borrower, consolidated budgets of the Borrower and
its Subsidiaries (x) in reasonable detail for each of the four fiscal
quarters of such fiscal year and (y) in summary form for each of the five
fiscal years immediately following such fiscal year, in each case as
customarily prepared by management for its internal use setting forth, with
appropriate discussion, the principal assumptions upon which such budgets
are based. Together with each delivery of financial statements pursuant to
Sections 8.01(a), (b) and (c), a comparison of the current year to date
financial results against the budgets (other than in respect of balance
sheets included therein unless available) required to be submitted pursuant
to this clause (d) shall be presented.
(e) Officer's Certificates. At the time of the delivery of the
----------------------
financial statements provided for in Sections 8.01(a), (b) and (c), a
certificate of the chief financial officer or
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other Authorized Officer of the Borrower to the effect that no Default or
Event of Default exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate shall (I) if
delivered in connection with the financial statements in respect of a
period ending on the last day of a fiscal quarter or fiscal year of the
Borrower, set forth (x) the calculations required to establish whether the
Borrower and its Subsidiaries were in compliance with the provisions of
Sections 3.03, 4.02, 9.02, 9.04(d), (f), (g), (j), (l) and (m), 9.05(a),
(g), (l) and (q) and 9.08 through and including 9.10 as at the end of such
fiscal quarter or year, as the case may be, and (y) the calculation of the
Total Leverage Ratio, the Adjusted Total Leverage Ratio and the Adjusted
Senior Leverage Ratio as at the last day of the respective fiscal quarter
or fiscal year of the Borrower, as the case may be and (II) if delivered
with the financial statements required by Section 8.01(c), set forth in
reasonable detail the amount of (and the calculations required to establish
the amount of) Excess Cash Flow for the respective Excess Cash Flow Payment
Period.
(f) Notice of Default or Litigation. Promptly, and in any event
-------------------------------
within five (or, in the case of any event referred to in clause (i) below,
three) Business Days after an officer of the Borrower or any of its
Subsidiaries obtains actual knowledge thereof, notice of (i) the occurrence
of any event which constitutes a Default or an Event of Default, which
notice shall specify the nature and period of existence thereof and what
action the Borrower proposes to take with respect thereto, (ii) any
litigation or proceeding pending or threatened (x) against the Borrower or
any of its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, (y) with respect to any material Indebtedness of
the Borrower or any of its Subsidiaries or (z) with respect to any Document
(other than such Documents referred to in clause (v) of the definition
thereof), (iii) any governmental investigation pending or threatened
against the Borrower or any of its Subsidiaries and (iv) any other event
which could reasonably be expected to have a Material Adverse Effect.
(g) Auditors' Reports. Promptly upon receipt thereof, a copy of each
-----------------
report or "management letter" submitted to the Borrower or any of its
Subsidiaries by its independent accountants in connection with any annual,
interim or special audit made by them of the books of the Borrower or any
of its Subsidiaries and the management's non-privileged responses thereto.
(h) Environmental Matters. Promptly after an officer of the Borrower
---------------------
or any of its Subsidiaries obtains actual knowledge of any of the following
(but only to the extent that any of the following, either individually or
in the aggregate, could reasonably be expected to (x) have a Material
Adverse Effect or (y) result in a remedial cost to the Borrower or any of
its Subsidiaries in excess of $500,000), written notice of:
(i) any pending or threatened Environmental Claim against the
Borrower or any of its Subsidiaries or any Real Property owned or
operated by the Borrower or any of its Subsidiaries;
(ii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that (x) results
in
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noncompliance by the Borrower or any of its Subsidiaries with any
applicable Environmental Law or (y) could reasonably be anticipated to
form the basis of an Environmental Claim against the Borrower or any
of its Subsidiaries or any such Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by the Borrower or any of its Subsidiaries that could
reasonably be anticipated to cause such Real Property to be subject to
any restrictions on the ownership, occupancy, use or transferability
by the Borrower or such Subsidiary, as the case may be, of its
interest in such Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to
the actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by the Borrower or any of its Subsidiaries.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action
and the Borrower's response or proposed response thereto. In addition, the
Borrower agrees to provide the Banks with copies of all material
communications by the Borrower or any of its Subsidiaries with any Person,
government or governmental agency relating to Environmental Laws or to any
of the matters set forth in clauses (i)-(iv) above, and such detailed
reports relating to any of the matters set forth in clauses (i)-(iv) above
as may reasonably be requested by the Administrative Agent or the Required
Banks.
(i) Annual Meetings with Banks. At the request of the Administrative
--------------------------
Agent, the Borrower shall within 150 days after the close of each of its
fiscal years, hold a meeting (at a mutually agreeable location and time)
open to all of the Banks at which meeting shall be reviewed the financial
results of the previous fiscal year and the financial condition of the
Borrower and its Subsidiaries and the budgets presented for the current
fiscal year of the Borrower and its Subsidiaries.
(j) Notice of Commitment Reductions and Mandatory Repayments. On or
--------------------------------------------------------
prior to the date of any reduction to the Total Revolving Loan Commitment
or any mandatory repayment of outstanding Term Loans pursuant to any of
Sections 4.02(c) through (e), inclusive, the Borrower shall provide written
notice of the amount of the respective reduction or repayment, as the case
may be, to the Total Revolving Loan Commitment or the outstanding Term
Loans, as applicable, and the calculation thereof (in reasonable detail).
(k) Other Information. Promptly upon transmission thereof, copies of
-----------------
any filings and registrations with, and reports to, the SEC by the Borrower
or any of its Subsidiaries and copies of all financial statements, proxy
statements, notices and reports as the Borrower or any of its Subsidiaries
shall send generally to analysts and the holders of their capital stock or
of the Senior Subordinated Notes, the Convertible Subordinated Notes or any
Permitted Debt in their capacity as such holders (to the extent not
theretofore delivered to the Banks pursuant to this Agreement) and, with
reasonable
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promptness, such other information or documents (financial or otherwise) as
any Agent on its own behalf or on behalf of the Required Banks may
reasonably request from time to time.
8.02 Books, Records and Inspections. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries in conformity with GAAP and all
requirements of law shall be made of all dealings and transactions in relation
to its business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit, upon reasonable prior notice to the chief financial
officer or other Authorized Officer of the Borrower, officers and designated
representatives of any Agent or the Required Banks to visit and inspect under
the guidance of officers of the Borrower any of the properties or assets of the
Borrower and any of its Subsidiaries in whomsoever's possession, and to examine
the books of account of the Borrower and any of its Subsidiaries and discuss the
affairs, finances and accounts of the Borrower and of any of its Subsidiaries
with, and be advised as to the same by, their officers and independent
accountants, all at such reasonable times and intervals and to such reasonable
extent as such Agent or the Required Banks may desire.
8.03 Insurance. (a) The Borrower will, and will cause each of its
---------
Subsidiaries to (i) maintain, with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as is consistent and in accordance with industry practice and
(ii) furnish to each Agent and each of the Banks, upon request, full information
as to the insurance carried. In addition to the requirements of the immediately
preceding sentence, the Borrower will at all times cause insurance of the types
described in Schedule VIII to be maintained (with the same scope of coverage as
that described in Schedule VIII) at levels which are consistent with its
practices immediately before the Initial Borrowing Date, taking into account the
age and fair market value of equipment, or otherwise in form, scope and amount
acceptable to the Administrative Agent. Such insurance shall include physical
damage insurance on all real and personal property (whether now owned or
hereafter acquired) on an all risk basis and business interruption insurance.
The provisions of this Section 8.03 shall be deemed supplemental to, but not
duplicative of, the provisions of any Security Documents that require the
maintenance of insurance.
(b) The Borrower will, and will cause each of its Subsidiaries to, at
all times keep the respective property of the Borrower and its Subsidiaries
(except real or personal property leased or financed through third parties in
accordance with this Agreement) insured in favor of the Collateral Agent, and
all policies (including Mortgage Policies) or certificates with respect to such
insurance (and any other insurance maintained by, or on behalf of, the Borrower
or any Subsidiary of the Borrower) (i) shall be endorsed to the Collateral
Agent's satisfaction for the benefit of the Collateral Agent (including, without
limitation, by naming the Collateral Agent as certificate holder, mortgagee and
loss payee with respect to real property, certificate holder and loss payee with
respect to personal property, additional insured with respect to general
liability and umbrella liability coverage and certificate holder with respect to
workers' compensation insurance), (ii) shall state that such insurance policies
shall not be canceled or materially changed without at least 30 days' prior
written notice thereof by the respective insurer to the Collateral Agent and
(iii) shall be deposited with the Collateral Agent.
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(c) If the Borrower or any of its Subsidiaries shall fail to maintain
all insurance in accordance with this Section 8.03, or if the Borrower or any of
its Subsidiaries shall fail to so name the Collateral Agent as an additional
insured, mortgagee or loss payee, as the case may be, or so deposit all
certificates with respect thereto, the Administrative Agent and/or the
Collateral Agent shall have the right (but shall be under no obligation),
following written notice to the Borrower, to procure such insurance, and the
Credit Parties agree to jointly and severally reimburse the Administrative Agent
or the Collateral Agent, as the case may be, for all costs and expenses of
procuring such insurance.
8.04 Payment of Taxes. The Borrower will pay and discharge, and will
----------------
cause each of its Subsidiaries to pay and discharge, all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits, or
upon any properties belonging to it, prior to the date on which material
penalties attach thereto, and all lawful claims for sums that have become due
and payable which, if unpaid, might become a Lien not otherwise permitted under
Section 9.03(a); provided, that neither the Borrower nor any of its Subsidiaries
--------
shall be required to pay any such tax, assessment, charge, levy or claim which
is being contested in good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.05 Corporate Franchises. The Borrower will do, and will cause each
--------------------
of its Subsidiaries to do, or cause to be done, all things necessary to preserve
and keep in full force and effect its existence and its material rights,
franchises, authority to do business, licenses, certifications, accreditations
and patents, except for rights, franchises, authority to do business, licenses,
certifications, accreditations and patents the loss of which (individually and
in the aggregate) could not reasonably be expected to have a Material Adverse
Effect; provided, however, that any transaction permitted by Section 9.02 will
-------- -------
not constitute a breach of this Section 8.05.
8.06 Compliance with Statutes; etc. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, comply with all applicable statutes,
regulations and orders of, and all applicable restrictions imposed by, all
governmental bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, except for such noncompliance as
would not have a Material Adverse Effect or a material adverse effect on the
ability of any Credit Party to perform its obligations under any Credit Document
to which it is a party.
8.07 Compliance with Environmental Laws. (a) (i) The Borrower will
----------------------------------
comply, and will cause each of its Subsidiaries to comply, in all material
respects with all Environmental Laws applicable to the ownership or use of its
Real Property now or hereafter owned or operated by the Borrower or any of its
Subsidiaries, will promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, and will keep or cause to be kept
all such Real Property free and clear of any Liens imposed pursuant to such
Environmental Laws and (ii) neither the Borrower nor any of its Subsidiaries
will generate, use, treat, store, Release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of, Hazardous Materials
on any Real Property owned or operated by the Borrower or any of its
Subsidiaries, or transport or permit the transportation of Hazardous Materials
to or from any such Real Property, unless the failure to comply with the
requirements specified in clause (i) or (ii) above, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect. If the
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<PAGE>
Borrower or any of its Subsidiaries, or any tenant or occupant of any Real
Property owned or operated by the Borrower or any of its Subsidiaries, cause or
permit any intentional or unintentional act or omission resulting in the
presence or Release of any Hazardous Material (except in compliance with
applicable Environmental Laws), the Borrower agrees, if required to do so under
any applicable directive or order of any governmental agency, to undertake,
and/or to cause any of its Subsidiaries, tenants or occupants to undertake, at
their sole expense, any clean up, removal, remedial or other action required
pursuant to Environmental Laws to remove and clean up any Hazardous Materials
from any Real Property except where the failure to do so would not reasonably be
expected to have a Material Adverse Effect; provided that neither the Borrower
--------
nor any of its Subsidiaries shall be required to comply with any such order or
directive which is being contested in good faith and by proper proceedings so
long as it has maintained adequate reserves with respect to such compliance to
the extent required in accordance with GAAP; and provided further that it will
--------
not constitute a breach under this Section 8.07 if a Person other than the
Borrower or any of its Subsidiaries takes such action on behalf of the Borrower
or any of its Subsidiaries.
(b) At the written request of the Administrative Agent or the
Required Banks, which request shall specify in reasonable detail the basis
therefor, at any time and from time to time, the Borrower will provide, at its
sole cost and expense, an environmental site assessment report concerning any
Real Property now or hereafter owned or operated by the Borrower or any of its
Subsidiaries, prepared by an environmental consulting firm approved by the
Administrative Agent, addressing the matters in clause (i), (ii) or (iii) below
which gives rise to such request (or, in the case of a request pursuant to
following clause (i), addressing such matter as may be requested by the
Administrative Agent or the Required Banks) and estimating the range of the
potential costs of any removal, remedial or other corrective action in
connection with any such matter, provided that in no event shall such request be
made unless (i) an Event of Default has occurred and is continuing, (ii) the
Banks receive notice under Section 8.01(h) for any event for which notice is
required to be delivered for any such Real Property or (iii) the Administrative
Agent or the Required Banks reasonably believe that there was a breach of any
representation, warranty or covenant contained in Section 7.17 or 8.07(a). If
the Borrower fails to provide the same within 60 days after such request was
made, the Administrative Agent may order the same, and the Borrower shall grant
and hereby grants, to the Administrative Agent and the Banks and their agents
access to such Real Property and specifically grants, the Administrative Agent
and the Banks and their agents an irrevocable non-exclusive license, subject to
the rights of tenants, to undertake such an assessment, all at the Borrower's
expense.
8.08 ERISA. As soon as possible and, in any event, within ten days
-----
after the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following, the Borrower
will deliver to each of the Banks a certificate of the chief financial officer
of the Borrower setting forth the full details as to such occurrence and the
action, if any, that the Borrower, such Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or proposed to
be given to or filed with or by the Borrower, the Subsidiary, the ERISA
Affiliate, the PBGC, a Plan participant or the Plan administrator with respect
thereto: that a Reportable Event has occurred (except to the extent that the
Borrower has previously delivered to the Banks a certificate and notices (if
any) concerning such event pursuant to the next clause hereof); that a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA is subject to the
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advance reporting requirement of PBGC Regulation Section 4043.61 (without regard
to subparagraph (b)(1) thereof), and an event described in subsection .62, .63,
.64, .65, .66, .67 or .68 of PBGC Regulation Section 4043 is reasonably expected
to occur within the following 30 days; that an accumulated funding deficiency,
within the meaning of Section 412 of the Code or Section 302 of ERISA, has been
incurred or an application may be or has been made for a waiver or modification
of the minimum funding standard (including any required installment payments) or
an extension of any amortization period under Section 412 of the Code or Section
303 or 304 of ERISA with respect to a Plan; that any contribution required to be
made with respect to a Plan has not been timely made; that a Plan has been or
may be terminated, reorganized, partitioned or declared insolvent under Title IV
of ERISA; that a Plan has an Unfunded Current Liability; that proceedings may be
or have been instituted to terminate or appoint a trustee to administer a Plan
which is subject to Title IV of ERISA; that a proceeding has been instituted
pursuant to Section 515 of ERISA to collect a delinquent contribution to a Plan;
that the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate will or
may incur any liability (including any indirect, contingent, or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code; or that the Borrower or any Subsidiary of the
Borrower may incur any material liability pursuant to any employee welfare
benefit plan (as defined in Section 3(1) of ERISA) that provides benefits to
retired employees or other former employees (other than as required by Section
601 of ERISA) or any Plan. The Borrower will deliver to each of the Banks (i) a
complete copy of the annual report (on Internal Revenue Service Form 5500-
series) of each Plan (including, to the extent required, the related financial
and actuarial statements and opinions and other supporting statements,
certifications, schedules and information) required to be filed with the
Internal Revenue Service and (ii) copies of any records, documents or other
information that must be furnished to the PBGC with respect to any Plan pursuant
to Section 4010 of ERISA. In addition to any certificates or notices delivered
to the Banks pursuant to the first sentence hereof, copies of annual reports and
any records, documents or other information required to be furnished to the
PBGC, and any material notices received by the Borrower, any Subsidiary of the
Borrower or any ERISA Affiliate with respect to any Plan shall be delivered to
the Banks no later than ten days after the date such report has been filed with
the Internal Revenue Service or such records, documents and/or information has
been furnished to the PBGC or such notice has been received by the Borrower,
such Subsidiary or such ERISA Affiliate, as applicable.
8.09 Good Repair. The Borrower will, and will cause each of its
-----------
Subsidiaries to, ensure that its material properties and equipment used in its
business are kept in good repair, working order and condition, ordinary wear and
tear excepted, and that from time to time there are made in such properties and
equipment all needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto, to the extent and in the manner
useful or customary for companies in similar businesses.
8.10 End of Fiscal Years; Fiscal Quarters. The Borrower will, for
------------------------------------
financial reporting purposes, cause (i) each of its, and each of its
Subsidiaries', fiscal years to end on December 31 of each year and (ii) each of
its, and each of its Subsidiaries', fiscal quarters to end on March 31, June 30,
September 30 and December 31 of each year.
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8.11 Additional Security; Further Assurances. (a) The Borrower
---------------------------------------
will, and will cause each of its Wholly-Owned Domestic Subsidiaries (and to the
extent Section 8.12 is operative, each of its Wholly-Owned Foreign Subsidiaries)
(other than a Shell Company, so long as it remains a Shell Company) to, grant to
the Collateral Agent security interests and mortgages in such assets and real
property of the Borrower and its Wholly-Owned Subsidiaries as are not covered by
the original Security Documents, and as may be requested from time to time by
the Administrative Agent or the Required Banks (collectively, the "Additional
Security Documents"). All such security interests and mortgages shall be granted
pursuant to documentation reasonably satisfactory in form and substance to the
Collateral Agent and shall constitute valid and enforceable perfected security
interests and mortgages superior to and prior to the rights of all third Persons
and subject to no other Liens except for Permitted Liens. The Additional
Security Documents or instruments related thereto shall have been duly recorded
or filed in such manner and in such places as are required by law to establish,
perfect, preserve and protect the Liens in favor of the Collateral Agent
required to be granted pursuant to the Additional Security Documents and all
taxes, fees and other charges payable in connection therewith shall have been
paid in full. Notwithstanding the foregoing, this Section 8.11(a) shall not
apply to (and the Borrower and its Subsidiaries shall not be required to grant a
mortgage in) any Real Property the fair market value of which (as determined in
good faith by senior management of the Borrower) is less than $500,000.
(b) The Borrower will, and will cause each of its Wholly-Owned
Subsidiaries to, at the expense of the Borrower, make, execute, endorse,
acknowledge, file and/or deliver to the Collateral Agent from time to time such
vouchers, invoices, schedules, confirmatory assignments, conveyances, financing
statements, transfer endorsements, powers of attorney, certificates, real
property surveys, reports and other assurances or instruments and take such
further steps relating to the Collateral covered by any of the Security
Documents as the Collateral Agent may reasonably require. Furthermore, the
Borrower shall cause to be delivered to the Collateral Agent such opinions of
counsel, title insurance and other related documents as may be reasonably
requested by the Collateral Agent to assure itself that this Section 8.11 has
been complied with.
(c) Each of the Credit Parties agrees that each action required above
by this Section 8.11 shall be completed as soon as possible, but in no event
later than 90 days after such action is either requested to be taken by the
Collateral Agent, the Administrative Agent or the Required Banks or required to
be taken by the Borrower and its Subsidiaries pursuant to the terms of this
Section 8.11.
(d) At such time as the assets of all Persons owned by the Borrower
and its Subsidiaries which theretofore constitute Shell Companies exceed
$250,000 in the aggregate, the Borrower shall notify the Administrative Agent as
to which Persons shall cease to constitute Shell Companies or, in the absence of
such designation, all such Persons shall at such time cease to be Shell
Companies.
8.12 Foreign Subsidiaries Security. If following a change in the
-----------------------------
relevant sections of the Code or the regulations, rules, rulings, notices or
other official pronouncements issued or promulgated thereunder, counsel for the
Borrower reasonably acceptable to the Administrative Agent does not within 30
days after a request from the Administrative Agent or the Required
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Banks deliver evidence, in form and substance mutually satisfactory to the
Administrative Agent and the Borrower, with respect to any Wholly-Owned Foreign
Subsidiary of the Borrower which has not already had all of its stock pledged
pursuant to the Pledge Agreement that (i) a pledge of more than 66-2/3% of the
total combined voting power of all classes of capital stock of such Foreign
Subsidiary entitled to vote, (ii) the entering into by such Foreign Subsidiary
of a security agreement in substantially the form of the Security Agreement,
(iii) the entering into by such Foreign Subsidiary of a pledge agreement in
substantially the form of the Pledge Agreement and (iv) the entering into by
such Foreign Subsidiary of a guaranty in substantially the form of the
Subsidiaries Guaranty, in any such case could reasonably be expected to cause
the undistributed earnings of such Foreign Subsidiary as determined for Federal
income tax purposes to be treated as a deemed dividend to such Foreign
Subsidiary's United States parent for Federal income tax purposes, then in the
case of a failure to deliver the evidence described in clause (i) above, that
portion of such Foreign Subsidiary's outstanding capital stock so issued by such
Foreign Subsidiary, in each case not theretofore pledged pursuant to the Pledge
Agreement, shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors pursuant to the Pledge Agreement (or another pledge agreement
in substantially similar form, if needed), and in the case of a failure to
deliver the evidence described in clause (ii) or (iii) above, such Foreign
Subsidiary shall execute and deliver the Security Agreement (or another security
agreement in substantially similar form, if needed) or the Pledge Agreement (or
another pledge agreement in substantially similar form, if needed), as the case
may be, granting the Secured Creditors a security interest in all of such
Foreign Subsidiary's assets or the capital stock and promissory notes owned by
such Foreign Subsidiary, as the case may be, and securing the obligations of the
Borrower under the Credit Documents and under any Interest Rate Protection
Agreement or Other Hedging Agreement and, in the event the Subsidiaries Guaranty
shall have been executed by such Foreign Subsidiary, the obligations of such
Foreign Subsidiary thereunder, and in the case of a failure to deliver the
evidence described in clause (iv) above, such Foreign Subsidiary shall execute
and deliver the Subsidiaries Guaranty (or another guaranty in substantially
similar form, if needed), guaranteeing the obligations of the Borrower under the
Credit Documents and under any Interest Rate Protection Agreement or Other
Hedging Agreement, in each case to the extent that the entering into of such
Security Agreement, Pledge Agreement or Subsidiaries Guaranty (or substantially
similar document) is permitted by the laws of the respective foreign
jurisdiction and with all documents delivered pursuant to this Section 8.12 to
be in form and substance reasonably satisfactory to the Administrative Agent
and/or the Collateral Agent.
8.13 Use of Proceeds. All proceeds of the Loans shall be used as
---------------
provided in Section 7.05.
8.14 Permitted Acquisitions. (a) Subject to the provisions of this
----------------------
Section 8.14 and the requirements contained in the definition of Permitted
Acquisition, the Borrower and any of its Wholly-Owned Domestic Subsidiaries may
from time to time effect Permitted Acquisitions, so long as (in each case except
to the extent the Required Banks otherwise specifically agree in writing in the
case of a specific Permitted Acquisition): (i) no Default or Event of Default
shall be in existence at the time of the consummation of the proposed Permitted
Acquisition or immediately after giving effect thereto; (ii) the Borrower shall
have given the Administrative Agent and the Banks at least 5 Business Days'
prior written notice of the proposed Permitted Acquisition; (iii) calculations
are made by the Borrower of compliance with the covenants contained in Sections
9.08 and 9.09 (in each case, giving effect to the last sentence
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appearing therein) for the period of four consecutive fiscal quarters (taken as
one accounting period) most recently ended prior to the date of such Permitted
Acquisition (each, a "Calculation Period"), on a Pro Forma Basis as if the
--- -----
respective Permitted Acquisition (as well as all other Permitted Acquisitions
theretofore consummated after the first day of such Calculation Period) had
occurred on the first day of such Calculation Period, and such recalculations
shall show that such financial covenants would have been complied with if the
Permitted Acquisition had occurred on the first day of such Calculation Period
(for this purpose, if the first day of the respective Calculation Period occurs
prior to the Initial Borrowing Date, calculated as if the covenants contained in
said Sections 9.08 and 9.09 (in each case, giving effect to the last sentence
appearing therein) had been applicable from the first day of the Calculation
Period); (iv) calculations are made by the Borrower demonstrating compliance
with an Adjusted Senior Leverage Ratio not to exceed 2.50:1.0 on the last day of
the relevant Calculation Period, on a Pro Forma Basis as if the respective
--- -----
Permitted Acquisition (as well as all other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred on the
first day of such Calculation Period; (v) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the same effect as though such representations and
warranties had been made on and as of the date of such Permitted Acquisition
(both before and after giving effect thereto), unless stated to relate to a
specific earlier date, in which case such representations and warranties shall
be true and correct in all material respects as of such earlier date; (vi) in
the event the Maximum Permitted Consideration payable in connection with the
proposed Permitted Acquisition is equal to or greater than $20,000,000, the
Borrower provides to the Administrative Agent and the Banks as soon as available
but not later than 5 Business Days after the execution thereof, a copy of any
executed purchase agreement or similar agreement with respect to such Permitted
Acquisition; (vii) the Maximum Permitted Consideration payable in connection
with the proposed Permitted Acquisition does not exceed $80,000,000 (of which no
more than $50,000,000 shall consist of cash); (viii) the Maximum Permitted
Consideration payable in cash in connection with the proposed Permitted
Acquisition, when combined with the aggregate Maximum Permitted Consideration
paid in cash in connection with all other Permitted Acquisitions consummated
during the six-month period prior to the date of the consummation of the
proposed Permitted Acquisition, does not exceed $125,000,000; (ix) after giving
effect to such Permitted Acquisition and the payment of all post-closing
purchase price adjustments required (in the good faith determination of the
Borrower) in connection with such Permitted Acquisition (and all other Permitted
Acquisitions for which such purchase price adjustments may be required to be
made) and all capital expenditures (and the financing thereof) reasonably
anticipated by the Borrower to be made in the business acquired pursuant to such
Permitted Acquisition within the 90-day period (such period for any Permitted
Acquisition, a "Post-Closing Period") following such Permitted Acquisition (and
in the businesses acquired pursuant to all other Permitted Acquisitions with
Post-Closing Periods ended during the Post-Closing Period of such Permitted
Acquisition), the Total Unutilized Revolving Loan Commitment shall equal or
exceed $25,000,000; and (x) the Borrower shall have delivered to the
Administrative Agent an officer's certificate executed by an Authorized Officer
of the Borrower, certifying to the best of his knowledge, compliance with the
requirements of preceding clauses (i) through (v), inclusive, and clauses (vii),
(viii) and (ix) and containing the calculations required by the preceding
clauses (iii), (iv), (vii), (viii) and (ix); provided that for purposes of
--------
determining compliance with clauses (vii) and (viii) above, shares of Borrower
Common Stock purchased on the open-market in
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reliance on Section 9.06(vi) and issued as consideration to the respective
seller in connection with the respective proposed Permitted Acquisition shall be
deemed to be cash consideration, with the value of such shares to be determined
as provided in the definition of Maximum Permitted Consideration.
(b) At the time of each Permitted Acquisition involving the creation
or acquisition of a Subsidiary, or the acquisition of capital stock or other
equity interest of any Person, all capital stock or other equity interests
thereof created or acquired in connection with such Permitted Acquisition shall
be pledged for the benefit of the Secured Creditors pursuant to the Pledge
Agreement in accordance with the requirements of Section 9.15.
(c) The Borrower shall cause each Subsidiary which is formed to
effect, or is acquired pursuant to, a Permitted Acquisition to comply with, and
to execute and deliver, all of the documentation required by, Sections 8.11 and
9.15, to the satisfaction of the Administrative Agent.
(d) The consummation of each Permitted Acquisition shall be deemed to
be a representation and warranty by the Borrower that the certifications by the
Borrower (or by one or more of its Authorized Officers) pursuant to Section
8.14(a) are true and correct and that all conditions thereto have been satisfied
and that same is permitted in accordance with the terms of this Agreement, which
representation and warranty shall be deemed to be a representation and warranty
for all purposes hereunder, including, without limitation, Sections 6 and 10.
8.15 Maintenance of Company Separateness. The Borrower will, and
-----------------------------------
will cause each of its Subsidiaries to, satisfy customary Company formalities,
including, as applicable, the holding of regular board of directors' and
shareholders' meetings or action by directors or shareholders without a meeting
and the maintenance of Company offices and records. Neither the Borrower nor
any of its Subsidiaries shall take any action, or conduct its affairs in a
manner, which is likely to result in the Company existence of the Borrower or
any of its Subsidiaries being ignored, or in the assets and liabilities of the
Borrower or any of its Subsidiaries being substantively consolidated with those
of any other such Person in a bankruptcy, reorganization or other insolvency
proceeding.
8.16 Performance of Obligations. The Borrower will, and will cause
--------------------------
each of its Subsidiaries to, perform all of its obligations under the terms of
each mortgage, deed of trust, indenture, loan agreement or credit agreement and
each other material agreement, contract or instrument by which it is bound,
except such non-performances as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
8.17 Year 2000 Compliance. The Borrower will ensure that its
--------------------
Information Systems and Equipment are at all times after September 30, 1999 Year
2000 Compliant in all material respects, and shall notify the Administrative
Agent and each Bank promptly upon detecting any material failure of the
Information Systems and Equipment to be Year 2000 Compliant. In addition, the
Borrower shall provide the Administrative Agent and each Bank with such
information about its year 2000 computer readiness (including, without
limitation, information as to contingency plans, budgets and testing results) as
the Administrative Agent or such Bank shall reasonably request.
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8.18 Margin Regulations. The Borrower shall take all actions so that
------------------
at all times the fair market value of all Margin Stock owned by the Borrower and
its Subsidiaries shall not exceed $1,000,000. So long as the covenant contained
in the immediately preceding sentence is complied with, all Margin Stock at any
time owned by the Borrower and its Subsidiaries shall not constitute Pledge
Agreement Collateral and no security interest shall be granted therein pursuant
to any Credit Document. Without excusing any violation of the first sentence of
this Section 8.18, if at any time the fair market value of all Margin Stock
owned by the Borrower and its Subsidiaries exceeds $1,000,000, then (x) all
Margin Stock owned by the Credit Parties shall be pledged, and delivered for
pledge, pursuant to the Pledge Agreement and (y) the Borrower shall execute and
deliver to the Banks appropriate completed forms (including, without limitation,
Forms G-3 and U-1, as appropriate) establishing compliance with the Margin
Regulations. If at any time any Margin Stock is required to be pledged as a
result of the provisions of the immediately preceding sentence, repayments of
outstanding Obligations shall be required, and subsequent Credit Events shall be
permitted, only in compliance with the applicable provisions of the Margin
Regulations.
8.19 Common Stock Repurchase. (a) Within 15 Business Days following
-----------------------
the Initial Borrowing Date, the Borrower shall have (i) utilized the proceeds in
the BT Tender Offer Account to purchase the Borrower Common Stock tendered, and
not theretofore withdrawn, pursuant to the Tender Offer (or, if more than
25,500,000 shares of Borrower Common Stock are so tendered, such lesser amount
of shares as is specified by the Tender Documents) in accordance with the
relevant requirements of the Tender Offer Documents (the "Common Stock
Repurchase") and (ii) utilized the full amount of the funds deposited in the BT
Tender Offer Account representing cash on hand of the Borrower and the cash
proceeds from the issuance of the Senior Subordinated Notes and the Convertible
Subordinated Notes to make payments to the Tender Offer Paying Agent owing in
connection with the Common Stock Repurchase prior to utilizing any portion of
the funds in the BT Tender Offer Account representing proceeds of Loans for any
such purpose. All conditions precedent to the consummation of the Common Stock
Repurchase as set forth in the Tender Offer Documents shall have been satisfied,
and not waived unless consented to by the Agents and the Required Banks. On the
date of the consummation thereof, the Common Stock Repurchase shall have been
consummated in accordance with the terms and conditions of the Tender Offer
Documents and all applicable law.
(b) Within 90 days following the Initial Borrowing Date, the Borrower
shall have repaid outstanding Loans and/or reduced the Total Revolving Loan
Commitment, in each case to the extent required by Section 4.02(f).
SECTION 9. Negative Covenants. The Borrower hereby covenants and
------------------
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Total Commitment has terminated, no Letters
of Credit or Notes are outstanding and the Loans, together with interest, Fees
and all other Obligations (other than any indemnities described in Section 13.13
which are not then due and payable) incurred hereunder, are paid in full:
9.01 Changes in Business. The Borrower and its Subsidiaries will not
-------------------
engage in any business other than a Permitted Business.
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9.02 Consolidation; Merger; Sale or Purchase of Assets; etc. The
-------------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, wind up,
liquidate or dissolve its affairs or enter into any transaction of merger or
consolidation, or convey, sell, lease or otherwise dispose of all or any part of
its property or assets (other than inventory and equipment which, in the
reasonable judgment of the Borrower or such Subsidiary, is obsolete, worn out or
otherwise no longer useful in the conduct of such Person's business, in each
case to the extent such inventory or equipment is conveyed, sold, leased or
otherwise disposed of in the ordinary course of business), or enter into any
sale-leaseback transactions, or purchase or otherwise acquire (in one or a
series of related transactions) any part of the property or assets (other than
purchases or other acquisitions of inventory, materials, general intangibles and
equipment in the ordinary course of business) of any Person or agree to do any
of the foregoing at any future time, except that the following shall be
permitted:
(a) the Borrower and its Subsidiaries may, as lessee, enter into
operating leases in the ordinary course of business with respect to real or
personal property;
(b) Capital Expenditures by the Borrower and its Subsidiaries to the
extent not in violation of Section 9.10;
(c) Investments permitted pursuant to Section 9.05 and the
liquidation of Cash Equivalents in the ordinary course of business;
(d) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of assets (excluding capital stock of, or other equity interests
in, Subsidiaries and Joint Ventures), provided that (w) each such sale or
--------
disposition shall be for an amount at least equal to the fair market value
thereof (as determined in good faith by senior management of the Borrower),
(x) each such sale or disposition (I) results in consideration at least 75%
of which (taking into account the amount of cash, the principal amount of
any promissory notes and assumed Indebtedness and the fair market value, as
determined by the Borrower in good faith, of any other consideration) shall
be in the form of cash or (II) in the case of an asset or assets subject to
Capitalized Lease Obligations, results in the assumption of all of the
Capitalized Lease Obligations of the Borrower or such Subsidiary in respect
of such asset by the purchaser thereof, (y) the aggregate Net Sale Proceeds
from all assets sold or otherwise disposed of pursuant to this clause (d),
when added to the aggregate amount of all Capitalized Lease Obligations
assigned in connection with all assets sold or otherwise disposed of
pursuant to this clause (d), shall not exceed $10,000,000 in the aggregate
in any fiscal year of the Borrower and (z) the Net Sale Proceeds therefrom
are either applied to repay Term Loans and/or reduce the Total Revolving
Loan Commitment as provided in Section 4.02(c) or reinvested in replacement
assets or retained to the extent permitted by Section 4.02(c);
(e) any Subsidiary of the Borrower may transfer assets to the
Borrower or to any Subsidiary Guarantor, so long as any security interests
granted to the Collateral Agent for the benefit of the Secured Creditors
pursuant to the Security Documents in the assets so transferred shall
remain in full force and effect and perfected (to at least the same extent
as in effect immediately prior to such transfer);
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(f) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, the Borrower, so long as (i) the Borrower is
the surviving corporation of any such merger, dissolution or liquidation
and (ii) any security interests granted to the Collateral Agent for the
benefit of the Secured Creditors pursuant to the Security Documents in the
assets of such Subsidiary shall remain in full force and effect and
perfected (to at least the same extent as in effect immediately prior to
such merger, dissolution or liquidation);
(g) any Subsidiary of the Borrower may merge with and into, or be
dissolved or liquidated into, any Subsidiary Guarantor, so long as (i) such
Subsidiary Guarantor is the surviving corporation of any such merger,
dissolution or liquidation and (ii) any security interests granted to the
Collateral Agent for the benefit of the Secured Creditors pursuant to the
Security Documents in the assets of such Subsidiary shall remain in full
force and effect and perfected (to at least the same extent as in effect
immediately prior to such merger, dissolution or liquidation);
(h) the Borrower and its Wholly-Owned Domestic Subsidiaries shall be
permitted to make Permitted Acquisitions, so long as such Permitted
Acquisitions are effected in accordance with the requirements of Section
8.14;
(i) the Borrower and its Subsidiaries may, in the ordinary course of
business, license, as licensor or licensee, patents, trademarks, copyrights
and know-how to or from third Persons or one another, so long as each such
license is permitted to be assigned pursuant to the Security Agreement (to
the extent that a security interest in such patents, trademarks, copyrights
and know-how is granted thereunder) and does not otherwise prohibit the
granting of a Lien by the Borrower or any of its Subsidiaries pursuant to
the Security Agreement in the intellectual property covered by such
license;
(j) the Borrower and its Subsidiaries may sell or exchange specific
items of equipment, so long as the purpose of each such sale or exchange is
to acquire (and results within 90 days of such sale or exchange in the
acquisition of) replacement items of equipment which are the functional
equivalent of the item of equipment so sold or exchanged;
(k) the Borrower and any of its Subsidiaries may sell or otherwise
dispose of the capital stock of, or other equity interests in, any of their
respective Subsidiaries and Joint Ventures which, in the reasonable opinion
of such Person, are uneconomic or no longer useful in the conduct of such
Person's business, provided that (w) each such sale or disposition shall be
--------
for an amount at least equal to the fair market value thereof (as
determined in good faith by senior management of the Borrower), (x) each
such sale results in consideration at least 75% of which (taking the amount
of cash, the principal amount of any promissory notes and assumed
Indebtedness and the fair market value, as determined by the Borrower in
good faith, of any other non-cash consideration) shall be in the form of
cash (for purposes of this clause (x) treating as cash consideration the
amount of any trade payables and the principal amount of Indebtedness for
borrowed money assumed by the respective purchaser of assets), (y) the
aggregate Net Sale Proceeds of all assets sold or otherwise disposed of
pursuant to this clause (k) after the
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Effective Date shall not exceed $25,000,000 in the aggregate and (z) the
Net Sale Proceeds therefrom are either applied to repay Term Loans and/or
reduce the Total Revolving Loan Commitment as provided in Section 4.02(c)
or reinvested in replacement assets or retained to the extent permitted by
Section 4.02(c);
(l) the Borrower and its Subsidiaries may enter into agreements to
effect acquisitions and dispositions of stock or assets, so long as the
respective transaction is permitted pursuant to the other provisions of
this Section 9.02; provided that the Borrower and its Subsidiaries may
--------
enter into agreements to effect acquisitions and dispositions of capital
stock or assets in transactions not permitted by the provisions of this
Section 9.02 at the time the respective agreement is entered into, so long
as in the case of each such agreement, such agreement shall be expressly
conditioned upon obtaining the requisite consent of the Required Banks
under this Agreement or the repayment of all obligations hereunder as a
condition precedent to the consummation of the respective transaction and,
if for any reason the transaction is not consummated because of failure to
obtain such consent or repay such obligations, the aggregate liability of
the Borrower and its Subsidiaries under any such agreement shall not exceed
$2,500,000;
(m) the Borrower and any of its Subsidiaries may sell or discount, in
each case without recourse, accounts receivables arising in the ordinary
course of business, but only in connection with the compromise or
collection thereof; and
(n) the Borrower and any of its Subsidiaries may sell, lease or
otherwise dispose of Janitorial Equipment in the ordinary course of
business and consistent with past practices of the Borrower and its
Subsidiaries as is effect on the Effective Date, so long as the Net Sale
Proceeds therefrom are either applied to repay Term Loans and/or reduce the
Total Revolving Loan Commitment as provided in Section 4.02(c) or
reinvested in replacement Janitorial Equipment to the extent permitted by
Section 4.02(c).
To the extent the Required Banks waive the provisions of this Section 9.02 with
respect to the sale or other disposition of any Collateral, or any Collateral is
sold or otherwise disposed of as permitted by this Section 9.02, such Collateral
(unless transferred to the Borrower or a Subsidiary thereof) shall be sold or
otherwise disposed of free and clear of the Liens created by the Security
Documents and the Administrative Agent shall take such actions (including,
without limitation, directing the Collateral Agent to take such actions) as are
appropriate in connection therewith.
9.03 Liens. The Borrower will not, and will not permit any of its
-----
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or with
respect to any property or assets of any kind (real or personal, tangible or
intangible) of the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, or sell any such property or assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with recourse to the
Borrower or any of its Subsidiaries) or assign any right to receive income,
except for the following (collectively, the "Permitted Liens"):
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(a) inchoate Liens for taxes, assessments or governmental charges or
levies not yet due and payable or Liens for taxes, assessments or
governmental charges or levies being contested in good faith and by
appropriate proceedings for which adequate reserves have been established
in accordance with GAAP;
(b) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law which were incurred in the ordinary course
of business and which have not arisen to secure Indebtedness for borrowed
money, such as carriers', warehousemen's and mechanics' Liens, statutory
landlord's Liens, and other similar Liens arising in the ordinary course of
business, and which either (x) do not in the aggregate materially detract
from the value of such property or assets or materially impair the use
thereof in the operation of the business of the Borrower or any of its
Subsidiaries or (y) are being contested in good faith by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property or asset subject to such Lien;
(c) Liens created by or pursuant to this Agreement and the Security
Documents;
(d) Liens in existence on the Initial Borrowing Date which are
listed, and the property subject thereto described, in Schedule IX, without
giving effect to any extensions or renewals thereof;
(e) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 10.09,
provided that unless the judgment, decree or attachment is fully insured,
--------
the amount of cash and property (determined on a fair market value basis)
deposited or delivered to secure the respective judgment or decree or
subject to attachment shall not exceed $10,000,000 at any time;
(f) Liens (other than any Lien imposed by ERISA) (x) incurred or
deposits made in the ordinary course of business of the Borrower and its
Subsidiaries in connection with workers' compensation, unemployment
insurance and other types of social security, (y) to secure the performance
by the Borrower and its Subsidiaries of tenders, statutory obligations
(other than excise taxes), surety, stay, customs and appeal bonds,
statutory bonds, bids, leases, government contracts, trade contracts,
performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) or (z) to
secure the performance by the Borrower and its Subsidiaries of leases of
Real Property, to the extent incurred or made in the ordinary course of
business consistent with past practices, provided that the aggregate amount
--------
of deposits at any time pursuant to sub-clauses (y) and (z) shall not
exceed $2,500,000 in the aggregate;
(g) licenses, sublicenses, leases or subleases granted to third
Persons in the ordinary course of business not interfering in any material
respect with the business of the Borrower or any of its Subsidiaries;
(h) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or encumbrances, in each
case not securing Indebtedness and
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not interfering in any material respect with the ordinary conduct of the
business of the Borrower or any of its Subsidiaries;
(i) Liens arising from precautionary UCC financing statements
regarding operating leases entered into by the Borrower and its
Subsidiaries in the ordinary course of business;
(j) Liens created pursuant to Capital Leases permitted pursuant to
Section 9.04(d), provided that (x) such Liens only serve to secure the
--------
payment of Indebtedness arising under such Capitalized Lease Obligation
(and other Indebtedness permitted by Section 9.04(d) and incurred from the
same Person as such Indebtedness) and (y) the Lien encumbering the asset
giving rise to the Capitalized Lease Obligation does not encumber any other
asset of the Borrower or any of its Subsidiaries (other than other assets
subject to Capitalized Lease Obligations and/or Indebtedness incurred
pursuant to Section 9.04(d), in each case owing to the same Person as such
Capitalized Lease Obligation);
(k) Permitted Encumbrances;
(l) Liens arising pursuant to purchase money mortgages or security
interests securing Indebtedness representing the purchase price (or
financing of the purchase price within 90 days after the respective
purchase) of assets acquired after the Initial Borrowing Date, provided
--------
that (i) any such Liens attach only to the assets so purchased, upgrades
thereon and, if the asset so purchased is an upgrade, the original asset
itself (and such other assets financed by the same financing source), (ii)
the Indebtedness (other than Indebtedness incurred from the same financing
source to purchase other assets and excluding Indebtedness representing
obligations to pay installation and delivery charges for the property so
purchased) secured by any such Lien does not exceed 100%, nor is less than
80%, of the lesser of the fair market value or the purchase price of the
equipment being purchased at the time of the incurrence of such
Indebtedness and (iii) the Indebtedness secured thereby is permitted to be
incurred pursuant to Section 9.04(d); and
(m) Liens on property or assets acquired pursuant to a Permitted
Acquisition, or on property or assets of a Subsidiary of the Borrower in
existence at the time such Subsidiary is acquired pursuant to a Permitted
Acquisition, provided that (i) any Indebtedness that is secured by such
--------
Liens is permitted to exist under Section 9.04(d), and (ii) such Liens are
not incurred in connection with, or in contemplation or anticipation of,
such Permitted Acquisition and do not attach to any other asset of the
Borrower or any of its Subsidiaries.
9.04 Indebtedness. The Borrower will not, and will not permit any of
------------
its Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(b) Existing Indebtedness outstanding on the Initial Borrowing Date
and listed on Schedule IV (as reduced by any repayments thereof after the
Initial Borrowing Date), without giving effect to any subsequent extension,
renewal or refinancing thereof;
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(c) Indebtedness under Interest Rate Protection Agreements entered
into to protect the Borrower against fluctuations in interest rates in
respect of Indebtedness otherwise permitted under this Agreement;
(d) (x) Indebtedness of a Subsidiary acquired pursuant to a Permitted
Acquisition (or Indebtedness assumed by the Borrower or any Wholly-Owned
Domestic Subsidiary pursuant to a Permitted Acquisition as a result of a
merger or consolidation or the acquisition of an asset securing such
Indebtedness) (the "Permitted Acquired Debt"), so long as (i) such
Indebtedness was not incurred in connection with, or in anticipation or
contemplation of, such Permitted Acquisition and (ii) such Indebtedness
does not constitute debt for borrowed money (except to the extent such
Indebtedness cannot be repaid in accordance with its terms at the time of
its assumption pursuant to such Permitted Acquisition and the aggregate
principal amount of all such Indebtedness for borrowed money permitted
pursuant to this parenthetical does not exceed $15,000,000), it being
understood and agreed that Capitalized Lease Obligations and purchase money
Indebtedness shall not constitute debt for borrowed money for purposes of
this clause (ii) and (y) Capitalized Lease Obligations and Indebtedness of
the Borrower and its Subsidiaries representing purchase money Indebtedness
secured by Liens permitted pursuant to Section 9.03(l), provided, that the
--------
sum of (I) the aggregate principal amount of all Permitted Acquired Debt at
any time outstanding plus (II) the aggregate amount of Capitalized Lease
----
Obligations incurred on and after the Initial Borrowing Date and
outstanding at any time plus (III) the aggregate principal amount of all
----
such purchase money Indebtedness incurred on and after the Initial
Borrowing and outstanding at any time, shall not exceed $25,000,000;
(e) Indebtedness constituting Intercompany Loans to the extent
permitted by Section 9.05(f);
(f) unsecured Indebtedness of the Borrower and the Subsidiary
Guarantors incurred under the Senior Subordinated Notes and the other
Senior Subordinated Notes Documents in an aggregate principal amount not to
exceed $200,000,000 less the amount of any repayments of principal thereof
after the Effective Date;
(g) unsecured Indebtedness of the Borrower and the Subsidiary
Guarantors incurred under the Convertible Subordinated Notes and the other
Convertible Subordinated Note Documents in an aggregate principal amount
not to exceed $100,000,000 plus the aggregate principal amount of all
----
Convertible Subordinated Notes issued to pay accrued and unpaid interest on
then outstanding Convertible Subordinated Notes in accordance with the
terms thereof less (without duplication) the amount of any repayments of
----
principal thereof and the amount of all reductions to the outstanding
principal amount of the Convertible Subordinated Notes as a result of
conversions thereof into Borrower Common Stock, in each case occurring
after the Effective Date;
(h) Indebtedness of the Borrower or any of its Subsidiaries which may
be deemed to exist in connection with agreements providing for
indemnification, purchase price adjustments and similar obligations in
connection with acquisitions or sales of assets and/or businesses effected
in accordance with the requirements of this Agreement (so
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long as any such obligations are those of the Person making the respective
acquisition or sale, and, except as permitted by Section 9.04(i)(z), are
not guaranteed by any other Person);
(i) Contingent Obligations of (x) the Borrower or any of its
Subsidiaries as a guarantor of the lessee under any lease pursuant to which
the Borrower or any of its Wholly-Owned Subsidiaries is the lessee so long
as such lease is otherwise permitted hereunder, (y) the Borrower or any of
its Subsidiaries as a guarantor of any Capitalized Lease Obligation to
which a Joint Venture is a party or any contract entered into by such Joint
Venture in the ordinary course of business; provided that the maximum
--------
liability of the Borrower or any of its Subsidiaries in respect of any
obligations as described pursuant to preceding clause (y) is permitted as
an Investment on such date pursuant to the requirements of Section 9.05(l)
and (z) the Borrower as a guarantor of Indebtedness of any of its
Subsidiaries which may be deemed to exist pursuant to acquisition
agreements entered into in connection with Permitted Acquisitions
(including any obligation to pay the purchase price therefor and any
indemnification, purchase price adjustment and similar obligations);
(j) Permitted Subordinated Refinancing Indebtedness incurred in
accordance with the requirements of the definition thereof, so long as no
Default or Event of Default is in existence at the time of any incurrence
thereof and immediately after giving effect thereto;
(k) unsecured Indebtedness of the Borrower and its Subsidiaries with
respect to performance bonds and surety bonds, in each case incurred in the
ordinary course of business and consistent with the past practices of the
Borrower and its Subsidiaries as in effect on the Effective Date;
(l) Indebtedness of the Borrower under the Shareholder Subordinated
Notes issued in accordance with the terms of Section 9.06(ii); and
(m) Permitted Subordinated Indebtedness incurred in accordance with
the requirements of the definition thereof and additional unsecured
Indebtedness of the Borrower and its Subsidiaries not otherwise permitted
pursuant to this Section 9.04, so long as the aggregate principal amount of
all Indebtedness permitted by this clause (m), when added to the aggregate
liquidation preference for all Disqualified Preferred Stock issued after
the Effective Date pursuant to Section 9.13(c), does not exceed $35,000,000
at any time outstanding.
9.05 Advances; Investments; Loans. The Borrower will not, and will
----------------------------
not permit any of its Subsidiaries to, lend money or extend credit or make
advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents
(any of the foregoing, an "Investment"), except:
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(a) the Borrower and its Subsidiaries may invest in cash and Cash
Equivalents, provided that during any time that Revolving Loans or
--------
Swingline Loans are outstanding the aggregate amount of cash and Cash
Equivalents held by the Borrower and its Subsidiaries (excluding any cash
on deposit in the BT Tender Offer Account during the fifteen day period
following the Initial Borrowing Date) shall not exceed for any period of
three consecutive Business Days (x) at any time within the 90 day period
following the Initial Borrowing Date, $30,000,000, (y) at any time after
the 90th day following the Initial Borrowing Date and on or prior to the
180th day following the Initial Borrowing Date, $20,000,000 and (z) at any
time thereafter, $10,000,000;
(b) the Borrower and its Subsidiaries may acquire and hold
receivables owing to it, if created or acquired in the ordinary course of
business and payable or dischargeable in accordance with customary trade
terms (including the dating of receivables) of the Borrower or such
Subsidiary;
(c) the Borrower and its Subsidiaries may acquire and own investments
(including debt obligations and equity securities) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(d) Interest Rate Protection Agreements entered into in compliance
with Section 9.04(c) shall be permitted;
(e) advances, loans and investments in existence on the Initial
Borrowing Date and listed on Schedule VI shall be permitted, without giving
effect to any additions thereto or replacements thereof;
(f) the Borrower may make intercompany loans and advances to any
Subsidiary Guarantor, and any Subsidiary Guarantor may make intercompany
loans and advances to the Borrower or any other Subsidiary Guarantor
(collectively, "Intercompany Loans"), provided, that (x) each Intercompany
--------
Loan shall be evidenced by an Intercompany Note and (y) each such
Intercompany Note shall be pledged to the Collateral Agent pursuant to the
Pledge Agreement;
(g) loans and advances by the Borrower and its Subsidiaries to
employees of the Borrower and its Subsidiaries in connection with
relocations, purchases by such employees of Borrower Common Stock or
options or similar rights to purchase Borrower Common Stock and other
ordinary course of business purposes shall be permitted, so long as the
aggregate principal amount thereof at any time outstanding (determined
without regard to any write-downs or write-offs of such loans and advances)
shall not exceed $5,000,000;
(h) the Borrower may acquire and hold obligations of one or more
officers or other employees of the Borrower or its Subsidiaries in
connection with such officers' or employees' acquisition of shares of
Borrower Common Stock, so long as no cash is
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<PAGE>
actually advanced by the Borrower or any of its Subsidiaries to such
officers or employees in connection with the acquisition of any such
obligations;
(i) the Common Stock Repurchase shall be permitted;
(j) the Borrower and any of its Wholly-Owned Domestic Subsidiaries
may make Permitted Acquisitions in accordance with the relevant
requirements of Section 8.14 and the component definitions as used therein;
(k) the Borrower and its Subsidiaries may own the capital stock of
their respective Subsidiaries created or acquired in accordance with the
terms of this Agreement (so long as all amounts invested in such
Subsidiaries are independently justified under another provision of this
Section 9.05);
(l) so long as no Default or Event of Default exists or would exist
immediately after giving effect to the respective Investment, the Borrower
shall be permitted to make Investments in any Joint Venture (x) in the form
of a contribution of Borrower Common Stock to such Joint Venture and (y) on
any date in an amount not to exceed the Available JV Basket Amount on such
date (after giving effect to all prior and contemporaneous adjustments
thereto, except as a result of such Investment), it being understood and
agreed that to the extent the Borrower or one or more other Credit Parties
(after the respective Investment has been made) receives a cash return from
the respective Joint Venture of amounts previously invested pursuant to
clause (y) of this Section 9.05(1) (which cash return may be made by way of
repayment of principal in the case of loans and cash equity returns
(whether as a distribution, dividend or redemption) in the case of equity
investments), then the amount of such return of investment shall, upon the
Administrative Agent's receipt of a certification of the amount of the
return of investment from an Authorized Officer, apply to increase the
Available JV Basket Amount, provided that the aggregate amount of increases
--------
to the Available JV Basket Amount described above shall not exceed the
amount of returned investment and, in no event, shall the amount of the
increases made to the Available JV Basket Amount in respect of any
Investment exceed the amount previously invested pursuant to clause (y) of
this Section 9.05(1);
(m) the Borrower and its Subsidiaries may receive and hold promissory
notes and other non-cash consideration received in connection with any
asset sale permitted by Section 9.02(d);
(n) the Borrower and its Subsidiaries may convey, lease, license,
sell or otherwise transfer assets and properties to the extent permitted by
Sections 9.02(e), (g) and (i);
(o) the Borrower and any Subsidiary Guarantor may make cash equity
contributions to any (other) Subsidiary Guarantor;
(p) the Borrower and its Subsidiaries may make advances in the form
of a prepayment of expenses, so long as such expenses were incurred in the
ordinary course of business and are being paid in accordance with customary
trade terms of the Borrower or such Subsidiary; and
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<PAGE>
(q) in addition to investments permitted by clauses (a) through (p)
of this Section 9.05, the Borrower and its Subsidiaries may make additional
loans, advances and Investments to or in a Person not an Affiliate in an
aggregate amount for all loans, advances and Investments made pursuant to
this clause (q) (determined without regard to any write-downs or write-offs
thereof and, in the case of an Investment made using Borrower Common Stock,
without giving effect to the fair market value of such Borrower Common
Stock), net of cash repayments of principal in the case of loans, sale
proceeds in the case of Investments in the form of debt instruments and
cash equity returns (whether as a distribution, dividend, redemption or
sale) in the case of equity investments, not to exceed $25,000,000.
9.06 Dividends; etc. The Borrower will not, and will not permit any
---------------
of its Subsidiaries to, declare or pay any dividends (other than dividends
payable solely in common stock of the Borrower or any such Subsidiary, as the
case may be) or return any capital to, its stockholders or authorize or make any
other distribution, payment or delivery of property or cash to its stockholders
as such, or redeem, retire, purchase or otherwise acquire, directly or
indirectly, for a consideration, any shares of any class of its capital stock,
now or hereafter outstanding (or any warrants for or options or stock
appreciation rights in respect of any of such shares), or set aside any funds
for any of the foregoing purposes, and the Borrower will not permit any of its
Subsidiaries to purchase or otherwise acquire for consideration any shares of
any class of the capital stock of the Borrower or any other Subsidiary, as the
case may be, now or hereafter outstanding (or any options or warrants or stock
appreciation rights issued by such Person with respect to its capital stock)
(all of the foregoing "Dividends"), except that:
(i) any Subsidiary of the Borrower may pay Dividends to the Borrower
or any Wholly-Owned Subsidiary of the Borrower;
(ii) the Borrower may redeem or purchase shares of Borrower Common
Stock or options to purchase Borrower Common Stock, as the case may be,
held by former employees of the Borrower or any of its Subsidiaries
following the termination of their employment (by death, disability or
otherwise), provided that (x) the only consideration paid by the Borrower
--------
in respect of such redemptions and/or purchases shall be cash, forgiveness
of liabilities and/or Shareholder Subordinated Notes, (y) the sum of (A)
the aggregate amount paid by the Borrower in cash in respect of all such
redemptions and/or purchases plus (B) the aggregate amount of liabilities
so forgiven plus (C) the aggregate amount of all cash principal and
interest payments made on Shareholder Subordinated Notes, in each case
after the Initial Borrowing Date, shall not exceed $5,000,000, and (z) at
the time of any cash payment or forgiveness of liabilities permitted to be
made pursuant to this Section 9.06(ii), including any cash payment under a
Shareholder Subordinated Note, no Default or Event of Default shall then
exist or result therefrom;
(iii) on the Initial Borrowing Date and concurrently with the Credit
Events then occurring, the Borrower may effect the Common Stock Repurchase
in accordance with the requirements of Section 5.08(a);
(iv) so long as no Default or Event of Default exists or would result
therefrom, the Borrower may pay regularly accruing cash Dividends on
Disqualified Preferred Stock
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<PAGE>
issued pursuant to Section 9.13(c), with such Dividends to be paid in
accordance with the terms of the respective certificate of designation
therefor;
(v) any Subsidiary of the Borrower that is not a Wholly-Owned
Subsidiary may pay cash Dividends to its shareholders or partners
generally, so long as the Borrower or its respective Subsidiary which owns
the equity interest or interests in the Subsidiary paying such Dividends
receives at least its proportionate share thereof (based upon its relative
holdings of equity interests in the Subsidiary paying such Dividends and
taking into account the relative preferences, if any, of the various
classes of equity interests in such Subsidiary or the terms of any
agreements applicable thereto);
(vi) the Borrower may purchase shares of Borrower Common Stock on the
open-market so long as (x) no Default or Event of Default is then in
existence or would result therefrom, (y) such shares of Borrower Common
Stock are reissued as consideration to a seller in connection with a
Permitted Acquisition within three months following the purchase thereof as
provided above and (z) the aggregate amount of cash paid to purchase such
shares after the Effective Date shall not exceed the sum of (I) $20,000,000
plus (II) after the reissuance of any such shares as contemplated by clause
----
(y) above, the aggregate amount of cash initially paid by the Borrower to
purchase such shares on the open-market;
(vii) the Borrower may pay regularly accruing Dividends with respect
to Qualified Preferred Stock through the issuance of additional shares of
Qualified Preferred Stock (but not in cash) in accordance with the terms of
the documentation governing the same;
(viii) at any time and from time to time prior to the 90th day
following the Initial Borrowing Date, in the event any portion of the
proceeds deposited in the BT Tender Offer Account on the Initial Borrowing
Date are not utilized to finance the Common Stock Repurchase, the Borrower
may purchase shares of Borrower Common Stock on the open-market in cash,
so long as (x) no Default or Event of Default is then in existence or would
result therefrom, (y) the aggregate amount of cash paid to purchase shares
of Borrower Common Stock pursuant to this clause (viii) does not exceed the
aggregate amount of the proceeds deposited in the BT Tender Offer Account
on the Initial Borrowing Date and not utilized to finance the Common Stock
Repurchase, and (z) any such purchase of shares of Borrower Common Stock
shall be made on a basis no less favorable from the Borrower's perspective
than purchases of Borrower Common Stock pursuant to the Common Stock
Repurchase (i.e., at a cash price per share not to exceed $22.50); provided
---- --------
that in no event shall the aggregate amount of cash used to purchase
Borrower Common Stock pursuant to this clause (viii), when combined with
the aggregate amount of cash actually paid to finance the Common Stock
Repurchase, exceed the aggregate amount permitted to be paid to effect the
Common Stock Repurchase pursuant to Section 5.08(a); and
(ix) the Borrower may pay cash in lieu of fractional shares of
Borrower Common Stock issued in connection with a conversion of Convertible
Subordinated Notes into Borrower Common Stock in accordance with the
relevant provisions of the
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<PAGE>
Convertible Subordinated Notes Indenture, so long as the aggregate amount
of all cash paid pursuant to this clause (ix), when added to the aggregate
amount of all cash interest paid in lieu of fractional Convertible
Subordinated Notes as permitted in the second proviso to Section 9.12(iv),
does not exceed $25,000 in any calendar year.
9.07 Transactions with Affiliates. The Borrower will not, and will
----------------------------
not permit any of its Subsidiaries to, enter into any transaction or series of
transactions with any Affiliate of the Borrower or any of its Subsidiaries other
than on terms and conditions substantially as favorable to the Borrower or such
Subsidiary as would be reasonably expected to be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm's-length transaction with a
Person other than an Affiliate; provided, that the following shall in any event
--------
be permitted: (i) the Transaction; (ii) intercompany transactions among the
Borrower and its Subsidiaries to the extent expressly permitted by Sections
9.02, 9.04, 9.05 and 9.06 shall be permitted; (iii) the payment on the Initial
Borrowing Date of one-time consulting and advisory fees to Apollo in an
aggregate amount not to exceed $2,500,000; (iv) the reimbursement of Apollo for
its reasonable out-of-pocket expenses incurred in connection with performing
management services to the Borrower and its Subsidiaries or in connection with
the Transaction; (v) so long as no Default or Event of Default is then in
existence or would result therefrom, the payment to Apollo of merger advisory
fees for each Permitted Acquisition in an amount not to exceed 1% of the fair
market value of the business or assets acquired pursuant to such Permitted
Acquisition (determined in good faith by senior management of the Borrower);
(vi) the payment of consulting or other fees to the Borrower by any of its
Subsidiaries in the ordinary course of business; (vii) customary fees to non-
officer directors of the Borrower and its Subsidiaries; and (viii) the Borrower
and its Subsidiaries may enter into employment arrangements with respect to the
procurement of services with their respective officers and employees in the
ordinary course of business. In no event shall any management, consulting or
similar fee be paid or payable by the Borrower or any of its Subsidiaries to any
Affiliate or Apollo Group or any of its Affiliates, except as specifically
provided in this Section 9.07.
9.08 Consolidated Interest Coverage Ratio. The Borrower will not
------------------------------------
permit the Consolidated Interest Coverage Ratio for any Test Period ending
during a period specified below to be less than the ratio set forth opposite
such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
June 30, 1999 to and including 2.25:1.0
March 31, 2000
June 30, 2000 to and including 2.50:1.0
March 31, 2001
June 30, 2001 to and including 2.75:1.0
March 31, 2002
June 30, 2002 to and including 3.00:1.0
March 31, 2003
June 30, 2003 to and including 3.25:1.0
March 31, 2004
and thereafter 3.25:1.0
</TABLE>
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<PAGE>
Notwithstanding anything to the contrary contained in this Agreement, all
calculations of compliance with this Section 9.08 shall be made on a Pro Forma
--- -----
Basis.
9.09 Adjusted Total Leverage Ratio. The Borrower will not permit the
-----------------------------
Adjusted Total Leverage Ratio at any time during a period set forth below to
exceed the ratio specified opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Initial Borrowing Date to and including 4.00:1.0
March 31, 2000
June 30, 2000 to and including 3.75:1.0
March 31, 2001
June 30, 2001 to and including 3.50:1.0
March 31, 2002
June 30, 2002 to and including 3.25:1.0
March 31, 2003
June 30, 2003 to and including 3.00:1.0
March 31, 2004
and thereafter 3.00:1.0
</TABLE>
Notwithstanding anything to the contrary contained above or elsewhere in this
Agreement, all calculations of compliance with this Section 9.09 shall be made
on a Pro Forma Basis.
--- -----
9.10 Capital Expenditures. (a) The Borrower will not, and will not
--------------------
permit any of its Subsidiaries to, make any Capital Expenditures, except that
during any fiscal year set forth below, the Borrower and its Subsidiaries may
make Capital Expenditures, so long as the aggregate amount of such Capital
Expenditures does not exceed in any fiscal year set forth below the sum of (x)
the amount set forth opposite such fiscal year below plus (y) for each Acquired
----
Business acquired after the Initial Borrowing Date and prior to the first day of
the respective fiscal year set forth below an amount equal to 1.25% of the
Acquired Revenues of such Acquired Business for the trailing twelve months of
such Acquired Business immediately preceding its acquisition for which financial
statements have been made available to the Borrower and the Banks plus (z) for
each Acquired Business acquired during the respective fiscal year, the amount
for such Acquired Business specified in preceding clause (y) multiplied by a
percentage, the numerator of which is the number of days in the fiscal year
after the date of the respective acquisition and the denominator of which is 365
or 366, as the case may be:
<TABLE>
<CAPTION>
Fiscal Year Ending Amount
- ----------------------------- ------------
<S> <C>
December 31, 1999 $ 20,000,000
December 31, 2000 $ 25,000,000
December 31, 2001 $ 30,000,000
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Fiscal Year Ending Amount
- ----------------------------- ------------
<S> <C>
December 31, 2002 $ 35,000,000
December 31, 2003 $ 40,000,000
December 31, 2004 $ 20,000,000/1/
</TABLE>
(b) Notwithstanding the foregoing, in the event that the amount of
Capital Expenditures permitted to be made by the Borrower and its Subsidiaries
pursuant to clause (a) above in any fiscal year (before giving effect to any
increase in such permitted expenditure amount pursuant to this clause (b)) is
greater than the amount of such Capital Expenditures made by the Borrower and
its Subsidiaries during such fiscal year, such excess (the "Rollover Amount")
may be carried forward and utilized to make Capital Expenditures in the
immediately succeeding fiscal year, provided that in no event shall the Rollover
--------
Amount available to be utilized in the immediately succeeding fiscal year exceed
$10,000,000.
(c) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the insurance proceeds
received by the Borrower or any of its Subsidiaries from any Recovery Event to
the extent such insurance proceeds are not required to be applied to repay Term
Loans or reduce the Total Revolving Loan Commitment pursuant to Section 4.02(e)
and so long as such Capital Expenditures are used to replace or restore any
properties or assets in respect of which such proceeds were paid within the time
periods specified by Section 4.02(e).
(d) Notwithstanding the foregoing, the Borrower and its Subsidiaries
may make Capital Expenditures (which Capital Expenditures will not be included
in any determination under the foregoing clause (a)) with the Net Sale Proceeds
of Asset Sales (other than the Net Sale Proceeds from sales or other
dispositions of Janitorial Equipment), to the extent such Net Sale Proceeds are
not required to be applied to repay Term Loans or reduce the Total Revolving
Loan Commitment pursuant to Section 4.02(c) and such proceeds are reinvested as
required by said Section.
(e) Notwithstanding the foregoing, the Borrower and its Wholly-Owned
Domestic Subsidiaries may make Capital Expenditures (which Capital Expenditures
will not be included in any determination under the foregoing clause (a))
constituting Permitted Acquisitions effected in accordance with the requirements
of Section 9.02(h).
9.11 Designated Senior Debt. The Borrower shall not designate any
----------------------
Indebtedness as "Designated Senior Debt" or "Designated Senior Indebtedness" (as
defined in the Senior Subordinated Notes Indenture, the Convertible Subordinated
Notes Indenture or, on and after the execution and delivery thereof, any
agreement relating to any Permitted Subordinated Indebtedness or Permitted
Subordinated Refinancing Indebtedness, as applicable) other than the
- ------------------------------
/1/ Such amount has been pro rated to account for the occurrence of the Tranche
--- -----
A Term Loan Maturity Date in April of such fiscal year.
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<PAGE>
Obligations and the obligations of the Credit Parties under the other Credit
Documents; provided that the Borrower may designate Indebtedness evidenced by
--------
the Senior Subordinated Notes as Designated Senior Indebtedness under, and as
defined in, the Convertible Subordinated Notes Indenture.
9.12 Limitation on Voluntary Payments and Modifications of
-----------------------------------------------------
Indebtedness; Modifications of Certificate of Incorporation, By-Laws and Certain
- --------------------------------------------------------------------------------
Other Agreements; Issuances of Capital Stock; etc. The Borrower will not, and
- --------------------------------------------------
will not permit any of its Subsidiaries to:
(i) amend or modify, or permit the amendment or modification of, any
provision of any Shareholder Subordinated Note, any Senior Subordinated
Notes Document, any Convertible Subordinated Notes Document or, after the
incurrence or issuance thereof, any Qualified Preferred Stock, Disqualified
Preferred Stock, Permitted Subordinated Refinancing Indebtedness, Permitted
Subordinated Indebtedness or Permitted Acquired Debt (to the extent the
aggregate principal amount of such Permitted Acquired Debt equals or
exceeds $1,000,000) or of any agreement (including, without limitation, any
purchase agreement, indenture, loan agreement, security agreement or
certificate of designation) relating thereto in a manner that could
reasonably be expected to in any way be adverse to the interests of the
Banks;
(ii) make (or give any notice in respect of) any voluntary or optional
payment or prepayment on or redemption, repurchase or acquisition for value
of (including, without limitation, by way of depositing with the trustee
with respect thereto or any other Person money or securities before due for
the purpose of paying when due), or any prepayment or redemption as a
result of any asset sale, change of control or similar event of, any Senior
Subordinated Notes, any Convertible Subordinated Notes, any Existing
Indebtedness, any Permitted Subordinated Refinancing Indebtedness or any
Permitted Subordinated Indebtedness (except, in the case of the Senior
Subordinated Notes, through the issuance of Exchange Senior Subordinated
Notes as contemplated in the definition of Senior Subordinated Notes and
consistent with the requirements of the definition of Exchange Senior
Subordinated Notes); provided that, so long as no Default or Event of
--------
Default then exists or would result therefrom, (x) Senior Subordinated
Notes may be refinanced with Permitted Subordinated Refinancing
Indebtedness, (y) the Borrower may repurchase Senior Subordinated Notes on
the open-market in an aggregate principal amount for all purchases made
after the Effective Date pursuant to this clause (y) not to exceed
$25,000,000, so long as the Adjusted Total Leverage Ratio is less than
4.00:1.00 on the last day of the Test Period most recently ended prior to
the consummation of the respective repurchase (as set forth in the
officer's certificate most recently delivered pursuant to Section 8.01(e))
and (z) the Borrower and its Subsidiaries may make payments and prepayments
in connection with Existing Indebtedness; provided further, that the
-------- --------
conversion of Convertible Subordinated Notes into Borrower Common Stock in
accordance with the relevant terms of the Convertible Subordinated Notes
Documents shall not give rise to a violation of this Section 9.12(ii);
(iii) make (or give any notice in respect of) any principal or
interest payment on, or any redemption or acquisition for value of, any
Shareholder Subordinated Note, except to the extent permitted by Section
9.06(ii);
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<PAGE>
(iv) make any interest payment on any Convertible Subordinated Notes,
provided that the Borrower may pay regularly accruing interest with respect
--------
to the Convertible Subordinated Notes when and as due (I) through the
issuance of additional Convertible Subordinated Notes, Borrower Common
Stock or Qualified Preferred Stock in accordance with the terms of the
Convertible Subordinated Notes Indenture and (II) in cash, so long as in
the case of this clause (II) (v) no Default or Event of Default then exists
or would result therefrom, (w) such interest payment is permitted under the
relevant provisions of the Senior Subordinated Notes Indenture, (x) in the
case of any such cash interest payment made or to be made after the Initial
Borrowing Date and prior to the second anniversary thereof, the Adjusted
Total Leverage Ratio on the date of such payment (after giving effect on a
Pro Forma Basis, to any Indebtedness incurred (or to be incurred) to make
--- -----
the respective cash interest payment) is less than 2.50:1.0, (y)
calculations are made by the Borrower establishing compliance with Section
9.09 for the Test Period then most recently ended prior to the respective
payment (after giving effect on a Pro Forma Basis to any Indebtedness
--- -----
incurred (or to be incurred) to make the respective cash interest payment)
and (z) at the time of each such interest payment, the Borrower shall have
delivered an officer's certificate to the Administrative Agent certifying
as to compliance with preceding clauses (v) through (y), inclusive,
provided further that in connection with any issuance of additional
-------- -------
Convertible Subordinated Notes permitted as provided in clause (I) of the
immediately preceding proviso, the Borrower may pay cash interest in lieu
of fractional Convertible Subordinated Notes, so long as the aggregate
amount of all such cash interest payments made pursuant to this proviso,
when added to the aggregate amount of all cash paid in lieu of fractional
Borrower Common Stock in connection with a conversion of Convertible
Subordinated Notes as provided in Section 9.06(ix), does not exceed $25,000
in any calendar year; and
(v) amend, modify or change in any way adverse to the interests of the
Banks in any material respect any Tender Offer Document, any Existing
Indebtedness, any Tax Allocation Agreement, any Management Agreement, its
certificate of incorporation (including, without limitation, by the filing
or modification of any certificate of designation other than any
certificates of designation relating to Qualified Preferred Stock or
Disqualified Preferred Stock issued as permitted herein), by-laws,
certificate of partnership, partnership agreement, certificate of limited
liability company, limited liability company agreement or any agreement
entered into by it, with respect to its capital stock or other equity
interest (including any Shareholders' Agreement), or enter into any new Tax
Allocation Agreement, Management Agreement or agreement with respect to its
capital stock or other equity interest which could reasonably be expected
to be adverse in any material respect to the interests of the Banks or, in
the case of any Management Agreement, which involves the payment by the
Borrower or any of its Subsidiaries of any amount which could give rise to
a violation of this Agreement; provided that the foregoing clause shall not
--------
restrict the ability of the Borrower and its Subsidiaries to amend their
respective certificates of incorporation to authorize the issuance of
capital stock otherwise permitted to be issued pursuant to the terms of
this Agreement.
9.13 Limitation on Issuance of Capital Stock. (a) The Borrower will
---------------------------------------
not, and will not permit any of its Subsidiaries to, issue (i) any Preferred
Stock (other than Preferred
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<PAGE>
Stock issued pursuant to clauses (c) and (d) below) or any options, warrants or
rights to purchase Preferred Stock or (ii) any redeemable common stock unless,
in either case, the issuance thereof is, and all terms thereof are, satisfactory
to the Required Banks in their sole discretion.
(b) The Borrower shall not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
(i) for transfers and replacements of then outstanding shares of capital stock,
(ii) for stock splits, stock dividends and additional issuances which do not
decrease the percentage ownership of the Borrower or any of its Subsidiaries in
any class of the capital stock of such Subsidiaries, (iii) to qualify directors
to the extent required by applicable law and (iv) Subsidiaries formed after the
Effective Date pursuant to Section 9.15 may issue capital stock in accordance
with the requirements of Section 9.15. All capital stock issued in accordance
with this Section 9.13(b) shall, to the extent required by the Pledge Agreement,
be delivered to the Collateral Agent for pledge pursuant to the Pledge
Agreement.
(c) The Borrower may issue Disqualified Preferred Stock so long as
(i) no Default or Event of Default then exists or would exist immediately after
giving effect to the respective issuance, (ii) the aggregate liquidation
preference for all Disqualified Preferred Stock issued after the Effective Date
pursuant to this Section 9.13(c) shall not exceed, when combined with the
aggregate principal amount of all then outstanding Indebtedness permitted by
Section 9.04(m), $35,000,000, (iii) with respect to each issue of Disqualified
Preferred Stock, the gross cash proceeds therefrom (or in the case of
Disqualified Preferred Stock directly issued as consideration for a Permitted
Acquisition, the fair market value thereof (as determined in good faith by the
Borrower) of the assets received therefor) shall not exceed the liquidation
preference thereof at the time of issuance, (iv) calculations are made by the
Borrower of compliance with the covenants contained in Sections 9.08 and 9.09
for the Calculation Period most recently ended prior to the date of the
respective issuance of Disqualified Preferred Stock, on a Pro Forma Basis after
--- -----
giving effect to the respective issuance of Disqualified Preferred Stock, and
such calculations shall show that such financial covenants would have been
complied with if such issuance of Disqualified Preferred Stock had been
consummated on the first day of the respective Calculation Period, and (v) the
Borrower shall furnish to the Administrative Agent a certificate by an
Authorized Officer of the Borrower certifying to the best of his or her
knowledge as to compliance with the requirements of this Section 9.13(c) and
containing the pro forma calculations required by the preceding clause (iv).
--- -----
(d) The Borrower may issue Qualified Preferred Stock (x) in payment
of regularly accruing dividends on theretofore outstanding shares of Qualified
Preferred Stock as contemplated by Section 9.06(vii), (y) in payment of
regularly accruing interest with respect to the Convertible Subordinated Notes
when and as due in accordance with the terms of the Convertible Subordinated
Notes Indenture and (z) so long as, with respect to each other issue of
Qualified Preferred Stock, the Borrower receives reasonably equivalent
consideration (as determined in good faith by the Borrower).
9.14 Limitation on Certain Restrictions on Subsidiaries. (a) The
--------------------------------------------------
Borrower will not, and will not permit any of its Subsidiaries to, directly or
indirectly, create or otherwise cause or suffer to exist or become effective,
any encumbrance or restriction on the ability of any such Subsidiary to (x) pay
dividends or make any other distributions on its capital stock or any other
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interest or participation in its profits owned by the Borrower or any Subsidiary
of the Borrower, or pay any Indebtedness owed to the Borrower or a Subsidiary of
the Borrower, (y) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (z) transfer any of its properties or assets to the Borrower or
any of its Subsidiaries, except for such encumbrances or restrictions existing
under or by reason of (i) applicable law, (ii) this Agreement and the other
Credit Documents, (iii) the provisions contained in the Existing Indebtedness
Agreements, (iv) the Senior Subordinated Notes Documents, (v) the Convertible
Subordinated Notes Documents, (vi) customary provisions restricting subletting
or assignment of any lease governing a leasehold interest of the Borrower or a
Subsidiary of the Borrower, (vii) customary provisions restricting assignment of
any contract entered into by the Borrower or any Subsidiary of the Borrower in
the ordinary course of business, (viii) any agreement or instrument governing
Permitted Acquired Debt, which encumbrance or restriction is not applicable to
any Person or the properties or assets of any Person, other than the Person or
the properties or assets of the Person acquired pursuant to the respective
Permitted Acquisition and so long as the respective encumbrances or restrictions
were not created (or made more restrictive) in connection with or in
anticipation of the respective Permitted Acquisition, (ix) restrictions
applicable to any Joint Venture that is a Subsidiary existing at the time of the
acquisition thereof as a result of an Investment pursuant to Section 9.05 or a
Permitted Acquisition effected in accordance with Section 8.14; provided that
--------
the restrictions applicable to the respective such Joint Venture are not made
worse, or more burdensome, from the perspective of the Borrower and its
Subsidiaries, than those as in effect immediately before giving effect to the
consummation of the respective Investment or Permitted Acquisition; (x) any
restriction or encumbrance with respect to a Subsidiary imposed pursuant to an
agreement which has been entered into for the sale or disposition of all or
substantially all of the capital stock or assets of such Subsidiary, so long as
such sale or disposition of all or substantially all of the capital stock or
assets of such Subsidiary is permitted under this Agreement; and (xi) the
documentation governing Permitted Debt (other than Permitted Acquired Debt).
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly agree to any consensual encumbrance or
restriction on the ability of any Non-Subsidiary Joint Venture to (x) pay
dividends or make other distributions on its capital stock or other interests or
participations in its profits owned by the Borrower or any Subsidiary of the
Borrower or (y) make loans or advances to the Borrower or any Subsidiary of the
Borrower, except for such encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other Credit
Documents, (iii) customary provisions restricting subletting or assignment of
any lease governing a leasehold interest of such Non-Subsidiary Joint Venture,
(iv) the Senior Subordinated Note Documents, (v) the Convertible Subordinated
Notes Documents, (vi) customary provisions restricting assignment of any
contract entered into by such Non-Subsidiary Joint Venture in the ordinary
course of business, (vii) normal restrictions (as determined in good faith by
the Borrower) applicable to any Non-Subsidiary Joint Venture at the time of the
establishment thereof (so long as not in connection with a Permitted
Acquisition), (viii) restrictions applicable to any Non-Subsidiary Joint Venture
existing at the time of the acquisition thereof as a result of an Investment
pursuant to Section 9.05 or a Permitted Acquisition effected in accordance with
Section 8.14; provided that the restrictions applicable to the respective Non-
--------
Subsidiary Joint Venture are not made worse, or more burdensome, from the
perspective of the Borrower and its Subsidiaries, than those as in effect
immediately before
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<PAGE>
giving effect to the consummation of the respective Investment or Permitted
Acquisition and (ix) the documentation governing Permitted Debt (other than
Permitted Acquired Debt).
9.15 Limitation on the Creation of Subsidiaries and Joint Ventures.
-------------------------------------------------------------
(a) Notwithstanding anything to the contrary contained in this Agreement, the
Borrower will not, and will not permit any of its Subsidiaries to, establish,
create or acquire after the Initial Borrowing Date any Subsidiary (other than
(x) Joint Ventures permitted to be established in accordance with the
requirements of Section 9.05(l) and (y) a Shell Company, so long as it remains a
Shell Company); provided that the (A) Borrower and its Wholly-Owned Subsidiaries
--------
shall be permitted to establish or create Wholly-Owned Subsidiaries so long as,
in each case, (i) at least 10 days' prior written notice thereof is given to the
Administrative Agent (or such shorter period of time as is acceptable to the
Administrative Agent), (ii) the capital stock or other equity interests of such
new Subsidiary is promptly pledged pursuant to, and to the extent required by,
this Agreement and the Pledge Agreement and the certificates, if any,
representing such stock or other equity interests, together with appropriate
powers duly executed in blank, are delivered to the Collateral Agent, (iii) such
new Subsidiary (other than a Foreign Subsidiary except to the extent otherwise
required pursuant to Section 8.12) promptly executes a counterpart of the
Subsidiaries Guaranty, the Pledge Agreement and the Security Agreement, and (iv)
to the extent requested by the Administrative Agent or the Required Banks, such
new Subsidiary takes all actions required pursuant to Section 8.11 and (B)
Subsidiaries may be acquired pursuant to Permitted Acquisitions so long as, in
each such case (i) with respect to each Wholly-Owned Subsidiary acquired
pursuant to a Permitted Acquisition, the actions specified in clauses (ii),
(iii) and (iv) of preceding clause (A) shall be taken and (ii) with respect to
each Subsidiary which is not a Wholly-Owned Subsidiary and is acquired pursuant
to a Permitted Acquisition, all capital stock or other equity interests thereof
owned by any Credit Party shall be pledged pursuant to (and to the extent
required by) the Pledge Agreement. In addition, each new Subsidiary that is
required to execute any Credit Document shall execute and deliver, or cause to
be executed and delivered, all other relevant documentation of the type
described in Section 5 as such new Subsidiary would have had to deliver if such
new Subsidiary were a Credit Party on the Initial Borrowing Date.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Joint Ventures, except to the extent permitted
by Section 9.05(l).
SECTION 10. Events of Default. Upon the occurrence of any of the
-----------------
following specified events (each, an "Event of Default"):
10.01 Payments. The Borrower shall (i) default in the payment when
--------
due of any principal of the Loans or (ii) default, and such default shall
continue for three or more Business Days, in the payment when due of any Unpaid
Drawing, any interest on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
10.02 Representations, etc. Any representation, warranty or
---------------------
statement made by any Credit Party herein or in any other Credit Document or in
any statement or certificate delivered pursuant hereto or thereto shall prove to
be untrue in any material respect on the date as of which made or deemed made;
or
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10.03 Covenants. Any Credit Party shall (a) default in the due
---------
performance or observance by it of any term, covenant or agreement contained in
Sections 8.01(f)(i), 8.10, 8.13, 8.14 or 9, or (b) default in the due
performance or observance by it of any term, covenant or agreement (other than
those referred to in Section 10.01, 10.02 or clause (a) of this Section 10.03)
contained in this Agreement and such default shall continue unremedied for a
period of at least 30 days after notice to the defaulting party by the
Administrative Agent or the Required Banks; or
10.04 Default Under Other Agreements. (a) The Borrower or any of
------------------------------
its Subsidiaries shall (i) default in any payment with respect to any
Indebtedness (other than the Obligations) beyond the period of grace, if any,
provided in the instrument or agreement under which Indebtedness was created or
(ii) default in the observance or performance of any agreement or condition
relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or condition is to
cause, or to permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause (determined without regard
to whether any notice is required), any such Indebtedness to become due prior to
its stated maturity; or (b) any Indebtedness (other than the Obligations) of the
Borrower or any of its Subsidiaries shall be declared to be due and payable, or
shall be required to be prepaid other than by a regularly scheduled required
prepayment or as a mandatory prepayment (unless such required prepayment or
mandatory prepayment results from a default thereunder or an event of the type
that constitutes an Event of Default), prior to the stated maturity thereof;
provided, that it shall not constitute an Event of Default pursuant to clause
- --------
(a) or (b) of this Section 10.04 unless the principal amount of any one issue of
such Indebtedness, or the aggregate amount of all such Indebtedness referred to
in clauses (a) and (b) above, exceeds $4,000,000 at any one time; or
10.05 Bankruptcy, etc. The Borrower or any of its Subsidiaries shall
----------------
commence a voluntary case concerning itself under Title 11 of the United States
Code entitled "Bankruptcy," as now or hereafter in effect, or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is commenced against the
Borrower or any of its Subsidiaries and the petition is not controverted within
20 days, or is not dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the Borrower or any of
its Subsidiaries; or the Borrower or any of its Subsidiaries commences any other
proceeding under any reorganization, arrangement, adjustment of debt, relief of
debtors, dissolution, insolvency or liquidation or similar law of any
jurisdiction whether now or hereafter in effect relating to the Borrower or any
of its Subsidiaries; or there is commenced against the Borrower or any of its
Subsidiaries any such proceeding which remains undismissed for a period of 60
days; or the Borrower or any of its Subsidiaries is adjudicated insolvent or
bankrupt; or any order of relief or other order approving any such case or
proceeding is entered; or the Borrower or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undischarged or unstayed for a period of 60 days; or the
Borrower or any of its Subsidiaries makes a general assignment for the benefit
of creditors; or any corporate action is taken by the Borrower or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
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<PAGE>
10.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding
-----
standard required for any plan year or part thereof under Section 412 of the
Code or Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of the Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation Section 4043.61 (without regard to subparagraph
(b)(1) thereof) and an event described in subsection .62, .63, .64, .65, .66,
.67 or .68 of PBGC Regulation Section 4043 shall be reasonably expected to occur
within the following 30 days, any Plan which is subject to Title IV of ERISA
shall have had or is likely to have a trustee appointed to administer such Plan,
any Plan which is subject to Title IV of ERISA is, shall have been or is likely
to be terminated or to be the subject of termination proceedings under ERISA,
any Plan shall have an Unfunded Current Liability, a contribution required to be
made with respect to a Plan has not been timely made, the Borrower or any
Subsidiary of the Borrower or any ERISA Affiliate has incurred or is likely to
incur any liability to or on account of a Plan under Section 409, 502(i),
502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971 or 4975 of the Code or on account of a group health plan (as
defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code) under
Section 4980B of the Code, or the Borrower or any Subsidiary of the Borrower has
incurred or is likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(1) of ERISA) that provide
benefits to retired employees or other former employees (other than as required
by Section 601 of ERISA) or Plans; (b) there shall result from any such event or
events the imposition of a lien, the granting of a security interest, or a
liability or a material risk of incurring a liability; and (c) such lien,
security interest or liability, individually, and/or in the aggregate, in the
opinion of the Required Banks, has had, or could reasonably be expected to have,
a Material Adverse Effect; or
10.07 Security Documents. (a) Any Security Document shall cease to
------------------
be in full force and effect, or shall cease to give the Collateral Agent the
Liens, rights, powers and privileges purported to be created thereby in favor of
the Collateral Agent, superior to and prior to the rights of all third Persons
(except as permitted by Section 9.03), and subject to no other Liens (except as
permitted by Section 9.03), or (b) any Credit Party shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any such Security Document and such default
shall continue beyond any cure or grace period specifically applicable thereto
pursuant to the terms of any such Security Document; or
10.08 Subsidiaries Guaranty. The Subsidiaries Guaranty or any
---------------------
provision thereof shall cease to be in full force and effect, or any Subsidiary
Guarantor or any Person acting by or on behalf of such Subsidiary Guarantor
shall deny or disaffirm such Subsidiary Guarantor's obligations under the
Subsidiaries Guaranty or any Subsidiary Guarantor shall default in the due
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to the Subsidiaries Guaranty; or
10.09 Judgments. One or more judgments or decrees shall be entered
---------
against the Borrower or any of its Subsidiaries involving a liability (to the
extent not paid or not fully covered by insurance) in excess of $4,000,000 for
all such judgments and decrees and all such
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<PAGE>
judgments or decrees shall not have been vacated, discharged or stayed or bonded
pending appeal within 60 days from the entry thereof; or
10.10 Ownership. A Change of Control Event shall have occurred;
---------
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing, the Administrative Agent shall, upon the written
request of the Required Banks, by written notice to the Borrower, take any or
all of the following actions, without prejudice to the rights of any Agent or
any Bank to enforce its claims against any Subsidiary Guarantor or the Borrower,
except as otherwise specifically provided for in this Agreement (provided, that
--------
if an Event of Default specified in Section 10.05 shall occur with respect to
the Borrower, the result which would occur upon the giving of written notice by
the Administrative Agent as specified in clauses (i) and (ii) below shall occur
automatically without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Bank shall forthwith
terminate immediately and any Commitment Fees shall forthwith become due and
payable without any other notice of any kind; (ii) declare the principal of and
any accrued interest in respect of all Loans and all Obligations owing hereunder
(including Unpaid Drawings) to be, whereupon the same shall become, forthwith
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower; (iii) enforce, as
Collateral Agent (or direct the Collateral Agent to enforce), any or all of the
Liens and security interests created pursuant to the Security Documents; (iv)
terminate any Letter of Credit which may be terminated in accordance with its
terms; (v) direct the Borrower to pay (and the Borrower hereby agrees upon
receipt of such notice, or upon the occurrence of any Event of Default specified
in Section 10.05, to pay) to the Collateral Agent at the Payment Office such
additional amounts of cash, to be held as security for the Borrower's
reimbursement obligations in respect of Letters of Credit then outstanding,
equal to the aggregate Stated Amount of all Letters of Credit then outstanding;
and (vi) apply any cash collateral as provided in Section 4.02.
SECTION 11. Definitions. As used herein, the following terms shall
-----------
have the meanings herein specified unless the context otherwise requires.
Defined terms in this Agreement shall include in the singular number the plural
and in the plural the singular:
"Acquired Business" shall mean any Person or business, division or
product line acquired pursuant to a Permitted Acquisition.
"Acquired Person" shall have the meaning provided in the definition of
Permitted Acquisition.
"Acquired Revenues" shall mean, with respect to any Acquired Business,
the gross revenues of such Acquired Business for the twelve-month period most
recently ended prior to the date of the acquisition of such Acquired Business as
set forth in the financial statements for such Acquired Business delivered to
the Borrower and the Banks in connection with such acquisition.
"Additional Loan Commitment" shall mean any Tranche B Term Loan
Commitment and/or any Additional Revolving Loan Commitment, as the context may
require.
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<PAGE>
"Additional Loan Commitment Agreement" shall mean any Additional
Revolving Loan Commitment Agreement and/or any Tranche B Term Loan Commitment
Agreement, as the context may require.
"Additional Loan Commitment Date" shall mean any Tranche B Term Loan
Commitment Date or any Additional Revolving Loan Commitment Date, as the context
may require.
"Additional Loan Commitment Requirements" shall mean, with respect to
any request for an Additional Loan Commitment made pursuant to Section 1.14 or
any provision of an Additional Loan Commitment on any Additional Loan Commitment
Date, the satisfaction of each of the following conditions: (i) no Default or
Event of Default then exists or would result therefrom (for purposes of such
determination, assuming the relevant Loans in an aggregate principal amount
equal to the full amount of Additional Loan Commitments then requested or
provided had been incurred, and the proposed Permitted Acquisition (if any) to
be financed with the proceeds of such Loans had been consummated, on such date
of request or Additional Loan Commitment Date, as the case may be), (ii)
calculations are made by the Borrower demonstrating compliance with the
covenants contained in Sections 9.08 and 9.09 for the Calculation Period most
recently ended prior to the date of the respective request for Additional Loan
Commitments or the relevant Additional Loan Commitment Date, as the case may be,
on a Pro Forma Basis, as if the relevant Loans to be made pursuant to such
--- -----
Additional Loan Commitments (assuming the full utilization thereof) had been
incurred, and the proposed Permitted Acquisition (if any) to be financed with
the proceeds of such Loans (as well as other Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had occurred, on the
first day of such Calculation Period, (iii) calculations are made by the
Borrower demonstrating compliance with an Adjusted Senior Leverage Ratio not to
exceed 2.50:1.0 on the last day of the Calculation Period most recently ended
prior to the date of the respective request for Additional Loan Commitments or
the Additional Loan Commitment Date, as the case may be, determined on a Pro
---
Forma Basis as if the relevant Loans to be made pursuant to such Additional Loan
- -----
Commitments (assuming the full utilization thereof) had been incurred, and the
respective Permitted Acquisition (if any) to be financed with the proceeds of
such Loans (as well as all other Permitted Acquisitions theretofore consummated
after the first day of such Calculation Period) had occurred, on the first day
of such Calculation Period and (iv) the delivery by the Borrower of an officer's
certificate to the Administrative Agent certifying as to compliance with
preceding clauses (i) through (iii) and containing the calculations required by
clause (ii) and (iii).
"Additional Revolving Loan Bank" shall have the meaning provided in
Section 1.14(c).
"Additional Revolving Loan Commitment" shall mean, for each Bank, any
commitment to make Revolving Loans provided by such Bank pursuant to Section
1.14, in such amount as agreed to by such Bank in the respective Revolving Loan
Commitment Agreement; provided that on the Additional Revolving Loan Commitment
--------
Date upon which an Additional Revolving Loan Commitment of any Bank becomes
effective, such Additional Revolving Loan Commitment of such Bank shall be added
to (and thereafter become a part of) the Revolving
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Loan Commitment of such Bank for all purposes of this Agreement as contemplated
by Section 1.14.
"Additional Revolving Loan Commitment Agreement" shall mean a
Revolving Loan Commitment Agreement substantially in the form of Exhibit O-2
(appropriately completed).
"Additional Revolving Loan Commitment Date" shall mean each date upon
which an Additional Revolving Loan Commitment under an Additional Revolving Loan
Commitment Agreement becomes effective as provided in Section 1.14(c)(i).
"Additional Security Documents" shall have the meaning provided in
Section 8.11.
"Adjusted Senior Leverage Ratio" shall mean the Adjusted Total
Leverage Ratio, except that references to "Consolidated Debt" and "Adjusted
Total Leverage Ratio" therein shall instead be references to "Consolidated
Senior Debt" and "Adjusted Senior Leverage Ratio", respectively.
"Adjusted Total Leverage Ratio" shall mean, on any date, the ratio of
(i) Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test
Period most recently ended on or prior to such date. All calculations of the
Adjusted Total Leverage Ratio shall be made on a Pro Forma Basis, with
--- -----
determinations of Adjusted Total Leverage Ratio to give effect to all
adjustments (including, without limitation, those specified in clause (v))
contained in the definition of "Pro Forma Basis" contained herein.
--- -----
"Administrative Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the
Administrative Agent appointed pursuant to Section 12.10.
"Affected Loans" shall have the meaning provided in Section 4.02(h).
"Affiliate" shall mean, with respect to any Person, any other Person
directly or indirectly controlling (including but not limited to all directors
and officers of such Person), controlled by, or under direct or indirect common
control with such Person; provided, however, that for purposes of Section 9.07,
-------- -------
an Affiliate of the Borrower shall include any Person that directly or
indirectly owns more than 5% of any class of the capital stock of the Borrower
and any officer or director of the Borrower or any such Person.
"Agent" shall have the meaning provided in the first paragraph of this
Agreement.
"Agreement" shall mean this Credit Agreement, as the same may be from
time to time modified, amended and/or supplemented.
"ALC Bank" shall mean any Tranche B Term Loan Bank and/or any
Additional Revolving Loan Bank, as the context may require.
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"Apollo Group" shall mean Boss Investment LLC, a Delaware limited
liability company, and Apollo Advisors, L.P., Apollo Advisors IV, L.P., Apollo
Management, L.P., Apollo Management IV, L.P., Apollo Investment Fund, L.P.,
Apollo Investment Fund IV, L.P. and Apollo Overseas Partners IV, L.P., all
Delaware limited partnerships.
"Applicable Margin" initially shall mean a percentage per annum equal
to (i) in the case of Term Loans of either Tranche maintained as (x) Base Rate
Loans, 2.00% and (y) Eurodollar Loans, 3.00%, (ii) in the case of Revolving
Loans maintained as (x) Base Rate Loans, 1.50% and (y) Eurodollar Loans, 2.50%,
(iii) in the case of Swingline Loans, 1.50%, and (iv) in the case of the
Commitment Fee, 0.50%. From and after each day of delivery of any certificate
delivered in accordance with the first sentence of the following paragraph
indicating an entitlement to a different margin than that described in the
immediately preceding sentence (each, a "Start Date") to and including the
applicable End Date described below, the Applicable Margins shall be those set
forth below opposite the Total Leverage Ratio indicated to have been achieved in
any certificate delivered in accordance with the following sentence:
<TABLE>
<CAPTION>
Term Loan Term Loan Revolving Revolving
Eurodollar Base Rate Margin Loan Loan Base
Margin Eurodollar Rate/Swingline Commitment
Total Leverage Ratio Margin Margin Fee
----------- ----------------------
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Greater than 2.75:1 3.00% 2.00% 2.50% 1.50% 0.500%
Greater than 2.25:1 but less 2.75% 1.75% 2.25% 1.25% 0.500%
than or equal to 2.75:1
Less than or equal to 2.25:1 2.50% 1.50% 2.00% 1.00% 0.375%.
</TABLE>
The Total Leverage Ratio shall be determined based on the delivery of a
certificate of the Borrower (each, a "Quarterly Pricing Certificate") by an
Authorized Officer of the Borrower to the Administrative Agent (with a copy to
be sent by the Administrative Agent to each Bank), within 45 days of the last
day of any fiscal quarter of Borrower, which certificate shall set forth the
calculation of the Total Leverage Ratio as at the last day of the Test Period
ended immediately prior to the relevant Start Date (but determined on a Pro
---
Forma Basis to give effect to any Permitted Acquisition consummated on or prior
- -----
to the date of delivery of such certificate) and the Applicable Margins which
shall be thereafter applicable (until same are changed or cease to apply in
accordance with the following sentences); provided that at the time of the
--------
consummation of any Permitted Acquisition, an Authorized Officer of the Borrower
shall deliver to the Administrative Agent a certificate setting forth the
calculation of the Total Leverage Ratio on a Pro Forma Basis as of the last day
--- -----
of the last Calculation Period ended prior to the date on which such Permitted
Acquisition is consummated for which financial statements have been made
available (or were required to be made available) pursuant to Section 8.01(b) or
(c), as the case may be, and the date of such consummation shall be deemed to be
a Start Date and the Applicable Margins which shall be thereafter applicable
(until same are changed or cease to apply in accordance with the following
sentences) shall be based upon the Total Leverage Ratio as so calculated. The
Applicable Margins so determined shall apply, except as set forth in the
succeeding sentence, from the relevant Start Date to the earliest of (x) the
date on which the next certificate is delivered to the Administrative Agent, (y)
the date on which the next Permitted Acquisition is consummated or (z) the date
which is 45 days following the last day of the Test Period in which the previous
Start Date occurred (such earliest date, the "End Date"), at which
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time, if no certificate has been delivered to the Administrative Agent
indicating an entitlement to new Applicable Margins (and thus commencing a new
Start Date), the Applicable Margins shall be those set forth in the first
sentence of this definition (such Applicable Margins as so determined, the
"Highest Applicable Margins"). Notwithstanding anything to the contrary
contained above in this definition, (v) the Applicable Margins shall be the
Highest Applicable Margins at all times during which there shall exist any
Default or Event of Default, (w) at all times prior to the date of delivery of
the financial statements pursuant to Section 8.01(b) for the fiscal quarter
ended September 30, 1999 (the "Initial Test Date"), the Highest Applicable
Margins shall be applicable, (y) if at the time of the delivery of the financial
statements of the Borrower pursuant to Section 8.01(c), the Consolidated EBITDA
(the "Modified Consolidated EBITDA") then required to be utilized in any
determination of the Total Leverage Ratio as at the last day of the Test Period
ended immediately prior to the Start Date commencing on the date of the delivery
of the Quarterly Pricing Certificate then most recently delivered (determined on
a Pro Forma Basis to give effect to any Permitted Acquisition consummated on or
--- -----
prior to (but not after) the date of delivery of such Quarterly Pricing
Certificate) is different from the Consolidated EBITDA (the "Original
Consolidated EBITDA") used in the calculation of the Total Leverage Ratio
contained in the Quarterly Pricing Certificate then last delivered, then (I) the
Borrower shall be required to redeliver on such date of delivery of such
financial statements a replacement officer's certificate for the Quarterly
Pricing Certificate or other officer's certificate then last delivered pursuant
to the first sentence of this paragraph (such certificate to be so replaced, an
"Original Pricing Certificate"), setting forth a recalculation of the Total
Leverage Ratio set forth in such Original Pricing Certificate (determined on the
same basis as provided in such Original Pricing Certificate but modified to give
effect to the difference between the Modified Consolidated EBITDA and the
Original Consolidated EBITDA) and the changed Applicable Margins based on such
recalculation and (II) such date of required delivery of such replacement
certificate shall be deemed to be a Start Date and the Applicable Margins as so
redetermined shall thereafter be applicable (until the same are changed or cease
to apply in accordance with the preceding sentence or clause (z) of this
sentence below), (y) if the Borrower fails to deliver the replacement officer's
certificate as required by preceding clause (x), the date of required delivery
of such officer's certificate pursuant to said clause (x) shall be deemed to be
a Start Date and the Highest Applicable Margins shall thereafter be applicable
(until the same are changed or cease to apply in accordance with the preceding
sentence or succeeding clause (z) of this sentence), and (z) the Applicable
Margin for the Commitment Fee as otherwise determined above shall be increased
by 0.25% at all times after the Initial Test Date for each day that the Total
Unutilized Revolving Loan Commitment exceeds 75% of the sum of (i) the Total
Revolving Loan Commitment then in effect plus (ii) the aggregate outstanding
----
principal amount of the Tranche A Term Loans on such day.
"Applicable Prepayment Percentage" shall mean, at any time, 100%,
provided that if at any time the Adjusted Total Leverage Ratio is less than
- --------
3.50:1.00, the Applicable Prepayment Percentage shall instead be 75%.
Notwithstanding the foregoing, at any time a Default or Event of Default is then
in existence, the Applicable Prepayment Percentage shall be 100%.
"Asset Sale" shall mean any sale, transfer or other disposition by the
Borrower or any of its Subsidiaries to any Person other than the Borrower or any
Wholly-Owned Subsidiary of the Borrower of any asset (including, without
limitation, any capital stock or other securities
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of another Person, but excluding the sale by such Person of its own capital
stock) of the Borrower or such Subsidiary other than (i) sales, transfers or
other dispositions of inventory made in the ordinary course of business, and
(ii) other sales and dispositions that generate Net Sale Proceeds of less than
$750,000 in the aggregate in any fiscal year of the Borrower.
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit L (appropriately
completed).
"Authorized Officer" shall mean, with respect to (i) delivering
Notices of Borrowing, Notices of Conversion, Letter of Credit Requests and
similar notices, and delivering financial information and officer's certificates
pursuant to this Agreement, the chief financial officer, the chief executive
officer, the chief operating officer, the corporate controller, any treasurer or
other financial officer of the Borrower and (ii) any other matter in connection
with this Agreement or any other Credit Document, any officer (or a person or
persons so designated by any two officers) of the Borrower, in each case to the
extent reasonably acceptable to the Administrative Agent.
"Available JV Basket Amount" shall mean, on any date of determination,
an amount equal to the sum of (i) $25,000,000 minus (ii) the aggregate amount of
-----
Investments made (including for such purpose the fair market value of any asset
(other than Borrower Common Stock) contributed to any Joint Venture (as
determined in good faith by senior management of the Borrower), net of
Indebtedness and, without duplication, Capitalized Lease Obligations assigned
to, and assumed by, the respective Joint Venture in connection therewith but
excluding in any event the fair market value of Borrower Common Stock
contributed to any Joint Venture) pursuant to Section 9.05(l) after the
Effective Date, minus (iii) the aggregate amount of Indebtedness or other
-----
obligations (whether absolute, accrued, contingent or otherwise and whether or
not due) of any Joint Venture for which the Borrower or any of its Subsidiaries
(other than the respective Joint Venture) is liable, minus (iv) all payments
-----
made by the Borrower or any of its Subsidiaries (other than the respective Joint
Venture) in respect of Indebtedness or other obligations of the respective Joint
Venture (including, without limitation, payments in respect of obligations
described in preceding clause (iii)) after the Effective Date, plus (v) the
----
amount of any increase to the Available JV Basket Amount made after the
Effective Date in accordance with the provisions of Section 9.05(l). In
connection with the foregoing, it is understood and agreed that the acquisition
of an Acquired Person which has ownership interests in one or more Joint
Ventures, pursuant to a Permitted Acquisition effected in accordance with the
relevant requirements of this Agreement shall not be deemed to constitute an
Investment pursuant to Section 9.05(l) and the Available JV Basket Amount shall
not be reduced as a result of the payment of consideration owing to effect the
Permitted Acquisition (although the Available JV Basket Amount would be affected
to the extent preceding clauses (iii) or (iv) apply with respect to the Joint
Venture so acquired or to the extent additional Investments are made in the
respective Joint Venture pursuant to Section 9.05(l)).
"Bank" shall have the meaning provided in the first paragraph of this
Agreement.
"Bank Default" shall mean (i) the wrongful refusal (which has not been
retracted) of a Bank to make available its portion of any Borrowing (including
any Mandatory Borrowing) or to fund its portion of any unreimbursed payment
under Section 2.03 or (ii) a Bank having
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notified the Administrative Agent and/or the Borrower that it does not intend to
comply with its obligations under Section 1.01(b), 1.01(d) or 2.03 in
circumstances where such non-compliance would constitute a breach of such Bank's
obligations under the respective Section.
"Bankruptcy Code" shall have the meaning provided in Section 10.05.
"Base Rate" at any time shall mean the higher of (x) the rate which is
1/2 of 1% in excess of the Federal Funds Rate and (y) the Prime Lending Rate.
"Base Rate Loan" shall mean each Loan bearing interest at the rates
provided in Section 1.08(a).
"Borrower" shall have the meaning provided in the first paragraph of
this Agreement.
"Borrower Common Stock" shall have the meaning provided in Section
7.13(i).
"Borrowing" shall mean and include (i) the borrowing of Swingline
Loans from BTCo on a given date and (ii) the borrowing of one Type of Loan
pursuant to a single Tranche by the Borrower from all of the Banks having
Commitments (and/or outstanding Loans) with respect to such Tranche on a pro
---
rata basis on a given date (or resulting from conversions on a given date),
- ----
having in the case of Eurodollar Loans the same Interest Period; provided, that
--------
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of
any related Borrowing of Eurodollar Loans.
"Boss" shall mean Boss Investment LLC, a Delaware limited liability
company formed by affiliates of Apollo Management, L.P.
"BTCo" shall mean Bankers Trust Company, in its individual capacity,
and any successor corporation thereto by merger, consolidation or otherwise.
"B TL Repayment Percentage" shall mean, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the aggregate
principal amount of all Tranche B Term Loans outstanding at such time and the
denominator of which is equal to the sum of (x) the aggregate principal amount
of all Tranche B Term Loans outstanding at such time plus (y) the Total
----
Revolving Loan Commitment in effect at such time.
"BT Tender Offer Account" shall mean the restricted account of the
Borrower established with BTCo in which the cash (and only the cash) to be
utilized to make payments to the Tender Offer Paying Agent for the purpose of
financing the Common Stock Repurchase is to be deposited on the Initial
Borrowing Date and thereafter paid over to the Tender Offer Paying Agent when
and as required to make payments to the shareholders and optionholders whose
shares are being repurchased pursuant to the Common Stock Repurchase pursuant
to the Tender Offer Documents.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any day which shall
be in the City of New York a legal holiday or a day on which banking
institutions are authorized by law or other
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governmental actions to close and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in clause (i) and
which is also a day for trading by and between banks in U.S. dollar deposits in
the interbank Eurodollar market.
"Calculation Period" shall have the meaning provided in Section 8.14.
"Capital Expenditures" shall mean, with respect to any Person, for any
period, all expenditures by such Person which should be capitalized in
accordance with GAAP during such period, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with GAAP)
and the amount of all Capitalized Lease Obligations incurred by such Person
during such period.
"Capital Lease," as applied to any Person, shall mean any lease of any
property (whether real, personal or mixed) by that Person as lessee which, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"Capitalized Lease Obligations" shall mean all obligations under
Capital Leases of the Borrower or any of its Subsidiaries, in each case taken at
the amount thereof accounted for as liabilities in accordance with GAAP.
"Cash Equivalents" shall mean, as to any Person, (i) securities issued
or directly and fully guaranteed or insured by the United States or any agency
or instrumentality thereof (provided that the full faith and credit of the
--------
United States is pledged in support thereof) having maturities of not more than
six months from the date of acquisition, (ii) time deposits, certificates of
deposit and bankers' acceptances of any Bank or any commercial bank having, or
which is the principal banking subsidiary of a bank holding company organized
under the laws of the United States, any State thereof, the District of Columbia
or any foreign jurisdiction having capital, surplus and undivided profits
aggregating in excess of $200,000,000 and having a long-term unsecured debt
rating of at least "A" or the equivalent thereof from S&P's or "A2" or the
equivalent thereof from Moody's, with maturities of not more than six months
from the date of acquisition by such Person, (iii) repurchase agreements with a
term of not more than 30 days, involving securities of the types described in
preceding clause (i), and entered into with commercial banks meeting the
requirements of preceding clause (ii), (iv) commercial paper issued by any
Person incorporated in the United States rated at least A-1 or the equivalent
thereof by S&P's or at least P-1 or the equivalent thereof by Moody's and in
each case maturing not more than six months after the date of acquisition by
such Person, (v) investments in money market funds substantially all of whose
assets are comprised of securities of the types described in clauses (i) through
(iv) above and (vi) demand deposit accounts maintained in the ordinary course of
business.
"Change of Control Event" shall mean (a) any "person" or "group"
(within the meaning of Rules 13d-3 and 13d-5 under the Securities Exchange Act
of 1934, as in effect on the Effective Date), other than the Permitted Holders,
shall (A) have acquired, directly or indirectly, beneficial ownership of 30% or
more on a fully diluted basis of the voting and/or economic interest in the
Borrower's capital stock or (B) obtained the power (whether or not exercised) to
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elect a majority of the Borrower's directors or (b) the Board of Directors of
the Borrower shall cease to consist of a majority of Continuing Directors or (c)
a "change of control" or similar event shall occur as provided in the Senior
Subordinated Notes Indenture or in any Existing Indebtedness, Permitted Debt,
Disqualified Preferred Stock or Qualified Preferred Stock, to the extent the
outstanding principal amount or liquidation preference, as the case may be, of
such Existing Indebtedness, Permitted Debt, Disqualified Preferred Stock or
Qualified Preferred Stock exceeds $10,000,000 or (d) a "change of control" or
similar event shall have occurred (and not been waived by the holders of
Convertible Subordinated Notes) under the Convertible Subordinated Notes
Indenture.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated and rulings issued thereunder.
Section references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
"Collateral" shall mean all of the Collateral as defined in each of
the Security Documents.
"Collateral Agent" shall mean the Administrative Agent acting as
collateral agent for the Secured Creditors.
"Collective Bargaining Agreements" shall have the meaning provided in
Section 5.11.
"Commitment" shall mean any of the commitments of any Bank, i.e.,
----
whether the Tranche A Term Loan Commitment, the Tranche B Term Loan Commitment
or the Revolving Loan Commitment.
"Commitment Fee" shall have the meaning provided in Section 3.01(a).
"Common Stock Repurchase" shall have the meaning provided in Section
8.19.
"Company" shall mean any corporation, limited liability company,
partnership or other business entity (or the adjectival form thereof, where
appropriate).
"Consolidated Debt" shall mean, at any time, the sum of (without
duplication) (i) all Indebtedness of the Borrower and its Subsidiaries as would
be required to be reflected on the liability side of a balance sheet of such
Person in accordance with GAAP as determined on a consolidated basis, (ii) all
Indebtedness of the Borrower and its Subsidiaries of the type described in
clauses (iii) and (vii) of the definition of Indebtedness and (iii) all
Contingent Obligations of the Borrower and its Subsidiaries in respect of
Indebtedness of other Persons (i.e., Persons other than the Borrower or any of
----
its Subsidiaries) of the type referred to in preceding clauses (i) and (ii) of
this definition; provided, that for purposes of this definition, (i) the amount
--------
of Indebtedness in respect of all outstanding Convertible Subordinated Notes
shall be excluded in any determination of "Consolidated Debt", (ii) the amount
of Indebtedness in respect of the Interest Rate Protection Agreements shall be
at any time the unrealized net loss position, if any, of the Borrower and/or its
Subsidiaries thereunder on a marked-to-market basis determined no more than one
month prior to such time, and (iii) any Disqualified Preferred Stock of the
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Borrower and any Preferred Stock of any of its Subsidiaries shall be treated as
Indebtedness, with an amount equal to the greater of the liquidation preference
or the maximum mandatory fixed repurchase price of any such outstanding
Preferred Stock deemed to be a component of Consolidated Debt.
"Consolidated EBIT" shall mean, for any period, the Consolidated Net
Income of the Borrower and its Subsidiaries, determined on a consolidated basis,
before Consolidated Interest Expense and provision for taxes based on income (in
each case to the extent deducted in determining Consolidated Net Income for such
period) and without giving effect to any extraordinary gains or losses to the
extent not related to the continuing operations of the Borrower and its
Subsidiaries or gains or losses from sales of assets other than inventory sold
in the ordinary course of business.
"Consolidated EBITDA" shall mean for any period, Consolidated EBIT,
adjusted by adding thereto (in each case to the extent deducted in determining
Consolidated Net Income for such period and not already added back in
determining Consolidated EBIT) the amount of (i) all amortization and
depreciation and other non-cash items, (ii) any management fees and consulting
fees paid pursuant to, and in accordance with the requirements of, clauses (iii)
and (v) of Section 9.07 during such period and (iii) to the extent Consolidated
EBITDA is being determined for any period that includes all or a portion of the
fiscal year ended December 31, 1999, then to the extent that Consolidated EBITDA
(whether directly or through reductions to Consolidated Net Income) has been
reduced by not more than $7.0 million of relocation and severance costs incurred
during such fiscal year, the amount of such reductions (but in no event to
exceed $7.0 million for such fiscal year).
"Consolidated Interest Coverage Ratio" for any period shall mean the
ratio of Consolidated EBITDA to Consolidated Interest Expense (determined after
giving effect to the proviso to the definition thereof) for such period. All
calculations of the Consolidated Interest Coverage Ratio shall be made on a Pro
---
Forma Basis, with determinations of the Consolidated Interest Coverage Ratio to
- -----
give effect to all adjustments (including, without limitation, those specified
in clause (v)) provided in the definition of Pro Forma Basis contained herein.
--- -----
"Consolidated Interest Expense" shall mean, for any period, the total
consolidated interest expense of the Borrower and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, (i) that portion of Capitalized Lease Obligations of
- ----
the Borrower and its Subsidiaries representing the interest factor for such
period, and capitalized interest expense, plus (ii) the product of (x) the
----
amount of all cash Dividend requirements (whether or not declared or paid) on
Disqualified Preferred Stock of the Borrower and on any Preferred Stock of any
of its Subsidiaries paid, accrued or scheduled to paid or accrued during such
period multiplied by (y) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective consolidated
Federal, state, local and foreign tax rate (expressed as a decimal number
between one and zero) of the Borrower as reflected in the audited consolidated
financial statements of the Borrower for its most recently completed fiscal
year, which amounts described in preceding clause (ii) shall be treated as
interest expense of the Borrower and its Subsidiaries for purposes of this
definition regardless of the treatment of such amounts under GAAP, in each case
net of the total consolidated cash interest income of the Borrower and its
Subsidiaries for such period, but excluding the
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amortization of any deferred financing costs or of any costs in respect of any
Interest Rate Protection Agreement; provided that notwithstanding the foregoing,
--------
(x) any interest paid on Convertible Subordinated Notes through the issuance of
additional Convertible Subordinated Notes and (y) any one-time accelerated
interest payable in Borrower Common Stock due upon conversion of the Convertible
Subordinated Notes prior to May 1, 2004 in accordance with the terms of the
Convertible Subordinated Notes Indenture shall be excluded from any
determination of Consolidated Interest Expense as used in the denominator of the
Consolidated Interest Coverage Ratio for purposes of any calculation of such
ratio.
"Consolidated Net Income" shall mean, for any period, the net after
tax income (or loss) of the Borrower and its Subsidiaries determined on a
consolidated basis without giving effect to any non-cash expenses incurred or
payments made in connection with the Transaction (including, but not limited to,
fees and expenses incurred in connection with the Transaction and non-cash
charges resulting from the acceleration of outstanding options into Option
Shares on the Initial Borrowing Date); provided that the following items shall
--------
be excluded in computing Consolidated Net Income (without duplication): (i) the
net income or net losses of any Person in which any Person or Persons other than
the Borrower and its Wholly-Owned Subsidiaries has an equity interest or
interests, to the extent of such equity interests held by Persons other than the
Borrower and its Wholly-Owned Subsidiaries in such Person, (ii) except for
determinations expressly required to be made on a Pro Forma Basis, the net
--- -----
income (or loss) of any Person accrued prior to the date it becomes a Wholly-
Owned Subsidiary or all or substantially all of the property or assets of such
Person are acquired by a Wholly-Owned Subsidiary and (iii) the net income of any
Subsidiary to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary of such net income is not at the time permitted
by the operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
such Subsidiary.
"Consolidated Senior Debt" shall mean at any time (x) Consolidated
Debt less (y) the sum of (i) the aggregate outstanding principal amount of the
----
Senior Subordinated Notes at such time, (ii) the aggregate principal amount of
all other subordinated debt incurred pursuant to Sections 9.04(j), (l) and (m)
and outstanding at such time and otherwise included in Consolidated Debt and
(iii) the aggregate liquidation preference of all Disqualified Preferred Stock
issued pursuant to Section 9.13(c) and otherwise included in Consolidated Debt.
"Consolidated Subsidiary" shall mean each Subsidiary of the Borrower
the financial results of which are consolidated with those of the Borrower, in
accordance with GAAP, for financial reporting purposes.
"Contingent Obligations" shall mean as to any Person any obligation of
such Person guaranteeing or intended to guarantee any Indebtedness, leases,
dividends or other obligations ("primary obligations") of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, including,
without limitation, any obligation of such Person, whether or not contingent,
(a) to purchase any such primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain the
net worth or solvency of the primary obligor, (c) to purchase property,
securities or services primarily for the purpose of assuring the
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owner of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation or (d) otherwise to assure or hold
harmless the owner of such primary obligation against loss in respect thereof;
provided, however, that the term Contingent Obligation shall not include
- -------- -------
endorsements of instruments for deposit or collection or standard contractual
indemnities entered into, in each case in the ordinary course of business. The
amount of any Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof (assuming such Person is
required to perform thereunder) as determined by such Person in good faith.
"Continuing Directors" shall mean the directors of the Borrower on the
Effective Date and each other director if (x) such director's nomination for the
election to the Board of Directors of the Borrower is recommended by a majority
of the then Continuing Directors or (y) such director is appointed to the Board
of Directors of the Borrower by Apollo Group or its Affiliates pursuant to the
Investor Rights Agreement.
"Convertible Subordinated Notes" shall mean the Borrower's 7 1/2% pay-
in-kind convertible subordinated notes due April 30, 2012, issued to Boss
pursuant to the Convertible Subordinated Notes Indenture, as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Convertible Subordinated Notes Documents" shall mean the Convertible
Subordinated Notes, the Convertible Subordinated Notes Indenture, the Investor
Rights Agreement and all other documents executed and delivered with respect to
the Convertible Subordinated Notes or Convertible Subordinated Notes Indenture,
as in effect on the Effective Date and as the same may be amended, modified or
supplemented from time to time in accordance with the terms hereof and thereof.
"Convertible Subordinated Notes Indenture" shall mean the Indenture,
dated as of April 30, 1999, among the Borrower, the Subsidiary Guarantors and
the Convertible Subordinated Notes Indenture Trustee, as in effect on the
Effective Date and as the same may be amended, modified or supplemented from
time to time in accordance with the terms hereof and thereof.
"Convertible Subordinated Notes Indenture Trustee" shall mean United
States Trust Company of New York and any successor thereto.
"Credit Documents" shall mean this Agreement, the Notes, the
Subsidiaries Guaranty, each Security Document and each Additional Loan
Commitment Agreement.
"Credit Event" shall mean the making of a Loan (other than a Revolving
Loan made pursuant to a Mandatory Borrowing) or the issuance of a Letter of
Credit.
"Credit Party" shall mean the Borrower and each Subsidiary Guarantor.
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"Default" shall mean any event, act or condition which with notice or
lapse of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank
Default is in effect.
"Disqualified Preferred Stock" shall mean any Preferred Stock of the
Borrower other than Qualified Preferred Stock.
"Dividend" shall have the meaning provided in Section 9.06.
"Documentation Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Documentation
Agent appointed pursuant to Section 12.10.
"Documents" shall mean and include (i) the Credit Documents, (ii) the
Senior Subordinated Notes Documents, (iii) the Convertible Subordinated Notes
Documents, (iv) the Tender Offer Documents, and (v) all other documents,
agreements and instruments executed in connection with the Transaction.
"Domestic Subsidiary" shall mean each Subsidiary of the Borrower
incorporated or organized in the United States or any State or territory
thereof.
"Effective Date" shall have the meaning provided in Section 13.10.
"Eligible Transferee" shall mean and include a commercial bank, mutual
fund, financial institution, a "qualified institutional buyer" (as defined in
Rule 144A of the Securities Act), any fund that invests in bank loans or any
other "accredited investor" (as defined in Regulation D of the Securities Act)
(other than an individual).
"Employee Benefit Plans" shall have the meaning set forth in Section
5.11.
"Employment Agreements" shall have the meaning set forth in Section
5.11.
"End Date" shall have the meaning provided in the definition of
Applicable Margin.
"Environmental Claims" shall mean any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of non-compliance or violation, investigations or proceedings relating
in any way to any violation (or alleged violation) by the Borrower or any of its
Subsidiaries under any Environmental Law (hereafter "Claims") or any permit
issued to the Borrower or any of its Subsidiaries under any such law, including,
without limitation, (a) any and all Claims by governmental or regulatory
authorities for enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law, and (b) any and
all Claims by any third party seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
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"Environmental Law" shall mean any federal, state or local policy,
statute, law, rule, regulation, ordinance, code or rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment (for purposes of this definition
(collectively, "Laws")), relating to the environment, or Hazardous Materials or
health and safety to the extent such health and safety issues arise under the
Occupational Safety and Health Act of 1970, as amended, or any such similar
Laws.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder. Section references to ERISA are to ERISA, as in effect at
the date of this Agreement and any subsequent provisions of ERISA, amendatory
thereof, supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9)
of ERISA) which together with the Borrower or a Subsidiary of the Borrower would
be deemed to be a "single employer" (i) within the meaning of Section 414(b),
(c), (m) or (o) of the Code or (ii) as a result of the Borrower or a Subsidiary
of the Borrower being or having been a general partner of such person.
"Eurodollar Loans" shall mean each Loan bearing interest at the rates
provided in Section 1.08(b).
"Eurodollar Rate" shall mean with respect to each Interest Period for
a Eurodollar Loan, (i) the arithmetic average (rounded to the nearest 1/100 of
1%) of the offered quotation to first-class banks in the interbank Eurodollar
market by BTCo for U.S. dollar deposits of amounts in same day funds comparable
to the outstanding principal amount of the Eurodollar Loan of BTCo for which an
interest rate is then being determined with maturities comparable to the
Interest Period to be applicable to such Eurodollar Loan, determined as of 10:00
A.M. (New York time) on the date which is two Business Days prior to the
commencement of such Interest Period divided (and rounded upward to the next
whole multiple of 1/16 of 1%) by (ii) a percentage equal to 100% minus the then
stated maximum rate of all reserve requirements (including, without limitation,
any marginal, emergency, supplemental, special or other reserves) applicable to
any member bank of the Federal Reserve System in respect of Eurocurrency
liabilities as defined in Regulation D (or any successor category of liabilities
under Regulation D).
"Event of Default" shall have the meaning provided in Section 10.
"Exchange Senior Subordinated Notes" means Senior Subordinated Notes
which are substantially identical securities to the Senior Subordinated Notes
issued on or prior to the Initial Borrowing Date, which Exchange Senior
Subordinated Notes shall be issued pursuant to a registered exchange offer or
private exchange offer for the Senior Subordinated Notes and pursuant to the
Senior Subordinated Notes Indenture. In no event will the issuance of any
Exchange Senior Subordinated Notes increase the aggregate principal amount of
Senior Subordinated Notes then outstanding or otherwise result in an increase in
an interest rate applicable to the Senior Subordinated Notes.
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"Existing Indebtedness" shall have the meaning provided in Section
5.08(d).
"Existing Indebtedness Agreements" shall have the meaning provided in
Section 5.11.
"Facing Fee" shall have the meaning provided in Section 3.01(c).
"Federal Funds Rate" shall mean, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal Funds transactions with members of the Federal
Reserve System arranged by Federal Funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or referred to in,
Section 3.01.
"Foreign Subsidiary" shall mean each Subsidiary of the Borrower other
than a Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time; it being understood and
agreed that determinations in accordance with GAAP for purposes of Section 9,
including defined terms as used therein, are subject (to the extent provided
therein) to Section 13.07(a).
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect.
"Indebtedness" of any Person shall mean, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) the deferred purchase price
of assets or services payable to the sellers thereof or any of such seller's
assignees which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person but excluding deferred rent as determined in
accordance with GAAP, (iii) the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any
property owned by such first Person, whether or not such Indebtedness has been
assumed, (v) all Capitalized Lease Obligations of such Person, (vi) all
obligations of such Person to pay a specified purchase price for goods or
services whether or not delivered or accepted, i.e., take-or-pay and similar
----
obligations, (vii) all obligations under Interest Rate Protection Agreements and
Other Hedging Agreements and (viii) all Contingent Obligations of such Person,
provided that Indebtedness shall not include (x) trade payables and accrued
- --------
expenses, in each case arising in the ordinary
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course of business and (y) contingent purchase price obligations and other
earnout obligations of the Borrower and its Subsidiaries incurred in connection
with Permitted Acquisitions on a basis consistent with past practices of the
Borrower and its Subsidiaries as in effect on the Effective Date, which
obligations are not required to be included as indebtedness on the face of the
Borrower's consolidated balance sheet in accordance with GAAP.
"Information Systems and Equipment" shall mean all computer hardware,
firmware and software, as well as other information processing systems, or any
equipment containing embedded microchips, whether directly owned, licensed,
leased, operated or otherwise controlled by the Borrower or any of its
Subsidiaries, including through third-party service providers, and which, in
whole or in part, are used, operated, relied upon, or integral to, the
Borrower's or any of its Subsidiaries' conduct of their respective businesses.
"Initial Borrowing Date" shall mean the date upon which the initial
Borrowing of Loans occurs.
"Intercompany Loan" shall have the meaning provided in Section
9.05(f).
"Intercompany Notes" shall mean promissory notes, in the form of
Exhibit M, evidencing Intercompany Loans.
"Interest Determination Date" shall mean, with respect to any
Eurodollar Loan, the second Business Day prior to the commencement of any
Interest Period relating to such Eurodollar Loan.
"Interest Period," with respect to any Eurodollar Loan, shall mean the
interest period applicable thereto, as determined pursuant to Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement or other similar agreement or arrangement.
"Investment" shall have the meaning provided in the preamble to
Section 9.05.
"Investor Rights Agreement" shall mean the Investor Rights Agreement,
dated as of March 22, 1999 and amended as of April 6, 1999, among the Borrower
and BOSS Investment LLC, as in effect on the Effective Date and as the same may
be amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof.
"Janitorial Equipment" shall mean buffers and scrubbers and other
janitorial equipment used by the Building One Services Solution Division of the
Borrower and its Subsidiaries.
"Joint Venture" shall mean any Person, other than an individual or a
Wholly-Owned Subsidiary of the Borrower, (i) in which the Borrower or a
Subsidiary of the Borrower holds or acquires an ownership interest (whether by
way of capital stock, partnership or limited liability company interest, or
other evidence of ownership) and (ii) which is engaged in a Permitted Business.
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"L/C Supportable Indebtedness" shall mean (i) obligations of the
Borrower or its Wholly-Owned Subsidiaries incurred in the ordinary course of
business with respect to insurance obligations and workers' compensation, surety
bonds and other similar statutory obligations and (ii) such other obligations of
the Borrower or any of its Wholly-Owned Subsidiaries as are reasonably
acceptable to the Administrative Agent and the Letter of Credit Issuer and
otherwise permitted to exist pursuant to the terms of this Agreement.
"Leasehold" of any Person shall mean all of the right, title and
interest of such Person as lessee or licensee in, to and under leases or
licenses of land, improvements and/or fixtures.
"Letter of Credit" shall have the meaning provided in Section 2.01(a).
"Letter of Credit Fees" shall have the meaning provided in Section
3.01(b).
"Letter of Credit Issuer" shall mean BTCo and any other Bank which, at
the request of the Borrower and with the consent of the Administrative Agent,
agrees in such Bank's sole discretion to become a Letter of Credit Issuer for
purposes of issuing Letters of Credit pursuant to Section 2. The sole Letter of
Credit Issuer on the Initial Borrowing Date is BTCo.
"Letter of Credit Outstandings" shall mean, at any time, the sum of,
without duplication, (i) the aggregate Stated Amount of all outstanding Letters
of Credit and (ii) the aggregate amount of all Unpaid Drawings in respect of all
Letters of Credit.
"Letter of Credit Request" shall have the meaning provided in Section
2.02(a).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement to give any of
the foregoing, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any similar
recording or notice statute, and any lease having substantially the same effect
as the foregoing).
"Loan" shall mean each Tranche A Term Loan, each Tranche B Term Loan,
each Revolving Loan and each Swingline Loan.
"Management Agreements" shall have the meaning provided in Section
5.11.
"Management Participants" shall mean certain members of management of
the Borrower previously identified and satisfactory to the Administrative Agent.
"Mandatory Borrowing" shall have the meaning provided in Section
1.01(d).
"Margin Regulations" shall mean Regulations T, U and X, collectively.
"Margin Stock" shall have the meaning provided in Regulation U.
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"Material Adverse Effect" shall mean a material adverse effect on the
business, properties, assets, operations, liabilities, condition (financial or
otherwise) or prospects of the Borrower or the Borrower and its Subsidiaries
taken as a whole.
"Material Contracts" shall have the meaning provided in Section 5.11.
"Maturity Date", with respect to any Tranche of Loans, shall mean the
Tranche A Term Loan Maturity Date, the Tranche B Term Loan Maturity Date, the
Revolving Loan Maturity Date or the Swingline Expiry Date, as the case may be.
"Maximum Permitted Consideration" shall mean, with respect to any
Permitted Acquisition, the sum (without duplication) of (i) the fair market
value of the Borrower Common Stock (based on (A) in the case of Borrower Common
Stock deemed to be cash consideration pursuant to the proviso to Section
8.14(a), the amount of cash actually paid by the Borrower to purchase shares of
such Borrower Common Stock in reliance on Section 9.06(vi) and (B) in all other
cases, (x) the average closing trading price of the Borrower Common Stock for
the 20 trading days immediately prior to the date of such Permitted Acquisition
on the stock exchange on which the Borrower Common Stock is listed or (y) if the
Borrower Common Stock is not so listed, the good faith determination of the
Administrative Agent and senior management of the Borrower) issued (or to be
issued) as consideration in connection with such Permitted Acquisition
(including, without limitation, Borrower Common Stock which may be required to
be issued as earnout consideration upon the achievement of certain future
performance goals of the respective Acquired Business), (ii) the aggregate
principal amount of Permitted Acquired Debt acquired or assumed by the Borrower
or any of its Subsidiaries in connection with such Permitted Acquisition, (iii)
the aggregate amount of all cash paid (or to be paid) by the Borrower or any of
its Subsidiaries in connection with such Permitted Acquisition (including,
without limitation, payments of fees and costs and expenses in connection
therewith) and all contingent cash purchase price or other earnout obligations
of the Borrower and its Subsidiaries incurred in connection therewith, (iv) the
aggregate principal amount of all other Indebtedness assumed, incurred and/or
issued in connection with such Permitted Acquisition to the extent permitted by
Section 9.04 and (v) the fair market value (determined in good faith by senior
management of the Borrower) of all other consideration payable in connection
with such Permitted Acquisition.
"Maximum Swingline Amount" shall mean $25,000,000.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans,
$1,000,000, (ii) for Term Loans, $5,000,000, and (iii) for Swingline Loans,
$500,000.
"Moody's" shall mean Moody's Investors Service, Inc.
"Net Cash Proceeds" shall mean for any event requiring a reduction of
the Total Revolving Loan Commitment and/or repayment of Term Loans pursuant to
Section 3.03 or 4.02, as the case may be, the gross cash proceeds (including any
cash received by way of deferred payment pursuant to a promissory note,
receivable or otherwise, but only as and when received) received from such
event, net of reasonable transaction costs (including, as applicable, any
underwriting, brokerage or other customary commissions and reasonable legal,
advisory and other fees and expenses associated therewith) received from any
such event.
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"Net Sale Proceeds" shall mean for any sale of assets, the gross cash
proceeds (including any cash received by way of deferred payment pursuant to a
promissory note, receivable or otherwise, but only as and when received)
received from any sale of assets, net of (i) reasonable transaction costs
(including, without limitation, any underwriting, brokerage or other customary
selling commissions and reasonable legal, advisory and other fees and expenses,
including title and recording expenses, associated therewith) and payments of
unassumed liabilities relating to the assets sold at the time of, or within 30
days after, the date of such sale, (ii) the amount of such gross cash proceeds
required to be used to repay any Indebtedness (other than Indebtedness of the
Banks pursuant to this Agreement) which is secured by the respective assets
which were sold, and (iii) the estimated marginal increase in income taxes which
will be payable by the Borrower's consolidated group with respect to the fiscal
year in which the sale occurs as a result of such sale; provided, however, that
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such gross proceeds shall not include any portion of such gross cash proceeds
which the Borrower determines in good faith should be reserved for post-closing
adjustments (including indemnification payments) (to the extent the Borrower
delivers to the Banks a certificate signed by its chief financial officer or
treasurer, controller or chief accounting officer as to such determination), it
being understood and agreed that on the day that all such post-closing
adjustments have been determined (which shall not be later than six months
following the date of the respective asset sale), the amount (if any) by which
the reserved amount in respect of such sale or disposition exceeds the actual
post-closing adjustments payable by the Borrower or any of its Subsidiaries
shall constitute Net Sale Proceeds on such date received by the Borrower and/or
any of its Subsidiaries from such sale, lease, transfer or other disposition.
The parties hereto acknowledge and agree that Net Sale Proceeds shall not
include any trade-in-credits or purchase price reductions received by the
Borrower or any of its Subsidiaries in connection with an exchange of equipment
for replacement equipment that is the functional equivalent of such exchanged
equipment.
"Non-Defaulting Bank" shall mean each Bank other than a Defaulting
Bank.
"Non-Subsidiary Joint Venture" shall mean each Joint Venture which is
not a Subsidiary of the Borrower.
"Non-Wholly Owned Entity" shall have the meaning provided in the
definition of Permitted Acquisition.
"Note" shall mean each Tranche A Term Note, each Tranche B Term Note
and each Revolving Note and the Swingline Note.
"Notice of Borrowing" shall have the meaning provided in Section
1.03(a).
"Notice of Conversion" shall have the meaning provided in Section
1.06.
"Notice Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, New York, New York 10006 or such other
office as the Administrative Agent may designate to the Borrower and the Banks
from time to time.
"Obligations" shall mean all amounts, direct or indirect, contingent
or absolute, of every type or description, and at any time existing, owing to
any Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
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"Option Shares" shall have the meaning provided in Section 5.08(a).
"Original Pricing Certificate" shall have the meaning provided in the
definition of Applicable Margin.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements or other similar agreements or arrangements designed to
protect against fluctuations in currency values.
"Participant" shall have the meaning provided in Section 2.03(a).
"Payment Office" shall mean the office of the Administrative Agent
located at One Bankers Trust Plaza, New York, New York 10006 or such other
office as the Administrative Agent may designate to the Borrower and the Banks
from time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Acquired Debt" shall have the meaning set forth in Section
9.04(d).
"Permitted Acquisition" shall mean the acquisition by the Borrower or
any of its Wholly-Owned Domestic Subsidiaries of assets constituting a business,
division or product line of any Person, not already a Subsidiary of the Borrower
or any of its Wholly-Owned Subsidiaries, or of 100% of the capital stock or
other equity interests of any such Person, which Person shall, as a result of
such acquisition, become a Wholly-Owned Domestic Subsidiary of the Borrower or
such Wholly-Owned Domestic Subsidiary, provided that (A) the consideration paid
--------
by the Borrower or such Domestic Wholly-Owned Subsidiary consists solely of cash
(including proceeds of Revolving Loans), the issuance of the Borrower Common
Stock, the issuance of any Qualified Preferred Stock or Disqualified Preferred
Stock otherwise permitted pursuant to Section 9.13, the issuance of Indebtedness
otherwise permitted in Section 9.04 (including Permitted Subordinated
Indebtedness) and the assumption/acquisition of any Permitted Acquired Debt
(calculated in accordance with GAAP) relating to such business, division,
product line or Person which is permitted to remain outstanding in accordance
with the requirements of Section 9.04, (B) in the case of the acquisition of
100% of the capital stock or other equity interests of any Person, such Person
(the "Acquired Person") shall own no capital stock or other equity interests of
any other Person unless either (x) the Acquired Person owns 100% of the capital
stock or other equity interests of such other Person or (y) if the Acquired
Person owns capital stock or equity interests in any other Person which is not a
Wholly-Owned Subsidiary of the Acquired Person (a "Non-Wholly Owned Entity"),
(1) the Acquired Person shall not have been created or established in
contemplation of, or for purposes of, the respective Permitted Acquisition, (2)
any Non-Wholly Owned Entity of the Acquired Person shall have been non-wholly-
owned prior to the date of the respective Permitted Acquisition and not created
or established in contemplation thereof and (3) such Person and/or its Wholly-
Owned Subsidiaries own 80% of the consolidated assets of such Person and its
Subsidiaries, (C) substantially all of the business, division or product line
acquired pursuant to the respective Permitted Acquisition, or the business of
the Acquired Person and its Subsidiaries taken as a whole, is in the United
States, (D) the assets acquired, or the business of the Acquired Person,
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shall be in a Permitted Business and (E) all applicable requirements of Sections
8.14 and 9.02 applicable to Permitted Acquisitions are satisfied.
Notwithstanding anything to the contrary contained in the immediately preceding
sentence, an acquisition which does not otherwise meet the requirements set
forth above in the definition of "Permitted Acquisition" shall constitute a
Permitted Acquisition if, and to the extent, the Required Banks agree in writing
that such acquisition shall constitute a Permitted Acquisition for purposes of
this Agreement.
"Permitted Acquisition Additional Cost-Savings" shall mean, in
connection with each Permitted Acquisition, those demonstrable cost-savings
adjustments (in each case not included pursuant to clause (iii) or (iv) of the
definition of Pro Forma Basis contained herein) reasonably anticipated by the
--- -----
Borrower to be achieved in connection with such Permitted Acquisition for the 12
month period following the consummation of such Permitted Acquisition, which
cost-savings adjustments shall be estimated on a good faith basis by the
Borrower and, if requested by the Administrative Agent, be verified by a
nationally recognized accounting firm or as otherwise agreed to by the
Administrative Agent.
"Permitted Business" shall mean the facilities service businesses,
including, but not limited to, the electrical contracting, mechanical,
janitorial, and building maintenance business as conducted by the Borrower and
its Subsidiaries on the Effective Date, and any other business or activities as
may be substantially similar, incidental or related thereto, and reasonable
extensions of the foregoing.
"Permitted Debt" shall mean and include Permitted Acquired Debt,
Permitted Subordinated Refinancing Indebtedness and Permitted Subordinated
Indebtedness.
"Permitted Encumbrances" shall mean (i) those liens, encumbrances and
other matters affecting title to any Real Property and found reasonably
acceptable by the Administrative Agent, (ii) as to any particular Real Property
at any time, such easements, encroachments, covenants, rights of way, minor
defects, irregularities or encumbrances on title which could reasonably be
expected to materially impair such Real Property for the purpose for which it is
held by the mortgagor thereof, or the lien held by the Collateral Agent, (iii)
zoning and other municipal ordinances which are not violated in any material
respect by the existing improvements and the present use made by the mortgagor
thereof of the premises, (iv) general real estate taxes and assessments not yet
delinquent, and (v) such other similar items as the Administrative Agent may
consent to (such consent not to be unreasonably withheld).
"Permitted Holders" shall mean Apollo Group and its Affiliates and the
Management Participants.
"Permitted Liens" shall have the meaning provided in Section 9.03.
"Permitted Subordinated Indebtedness" shall mean subordinated
Indebtedness of the Borrower incurred in connection with a Permitted Acquisition
and in accordance with Section 8.14 (which subordinated Indebtedness may, at the
option of the Borrower, be convertible into Borrower Common Stock), which
Permitted Subordinated Indebtedness and all terms and conditions thereof
(including, without limitation, the maturity thereof, the interest rate
applicable thereto, amortization, defaults, remedies, voting rights,
subordination provisions,
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conversion provisions, etc.), and the documentation therefor, shall be
reasonably satisfactory to the Administrative Agent, provided that in any event,
--------
unless the Required Banks otherwise expressly consent in writing prior to the
incurrence thereof, (i) no such Indebtedness shall be guaranteed by any
Subsidiary of the Borrower and (ii) no such Indebtedness shall be secured by any
asset of the Borrower or any of its Subsidiaries. The incurrence of Permitted
Subordinated Indebtedness shall be deemed to be a representation and warranty by
the Borrower that all conditions thereto have been satisfied in all material
respects and that same is permitted in accordance with the terms of this
Agreement, which representation and warranty shall be deemed to be a
representation and warranty for all purposes hereunder, including, without
limitation, Sections 6 and 10.
"Permitted Subordinated Refinancing Indebtedness" shall mean
Indebtedness of the Borrower issued or given in exchange for, or the proceeds of
which are used to refinance, the Senior Subordinated Notes so long as (a) such
Indebtedness has a weighted average life to maturity greater than or equal to
the weighted average life to maturity of the Senior Subordinated Notes, (b) such
refinancing does not (i) increase the amount of such Indebtedness outstanding
immediately prior to such refinancing or (ii) add guarantors, obligors or
security from that which applied to the Senior Subordinated Notes, (c) such
Indebtedness has substantially the same (or, from the perspective of the Banks,
more favorable) subordination provisions as applied to the Senior Subordinated
Notes, and (d) all other terms of such refinancing (including, without
limitation, with respect to the amortization schedules, redemption provisions,
maturities, covenants, defaults and remedies), are not, taken as a whole,
materially less favorable to the Borrower than those previously existing with
respect to the Senior Subordinated Notes.
"Person" shall mean any individual, partnership, joint venture, firm,
corporation, limited liability company, association, trust or other enterprise
or any government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of
ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or a Subsidiary of the Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which the Borrower, or a Subsidiary of the Borrower
or an ERISA Affiliate maintained, contributed to or had an obligation to
contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 5.09(a).
"Pledge Agreement Collateral" shall mean all "Collateral" as defined
in the Pledge Agreement.
"Pledged Securities" shall mean all the Pledged Securities as defined
in the Pledge Agreement.
"Post-Closing Period" shall have the meaning provided in Section
8.14(a).
"Preferred Stock", as applied to the capital stock of any Person,
means capital stock of such Person (other than common stock of such Person) of
any class or classes (however designed) that ranks prior, as to the payment of
dividends or as to the distribution of assets upon
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any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of capital stock of any other class of such Person, and shall
include any Qualified Preferred Stock and Disqualified Preferred Stock.
"Prime Lending Rate" shall mean the rate which BTCo announces from
time to time as its prime lending rate, the Prime Lending Rate to change when
and as such prime lending rate changes. The Prime Lending Rate is a reference
rate and does not necessarily represent the lowest or best rate actually charged
to any customer. BTCo may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate.
"Pro Forma Financial Statements" shall have the meaning provided in
--- -----
Section 5.14(a).
"Pro Forma Basis" shall mean, in connection with any calculation of
--- -----
compliance with any financial covenant or financial term, the calculation
thereof after giving effect on a pro forma basis to (w) if the relevant period
to be tested includes any period occurring prior to the Initial Borrowing Date,
the consummation of the Transaction as if same had occurred on the first day of
such period, (x) the incurrence of any Indebtedness (other than revolving
Indebtedness, except to the extent same is incurred to finance the Transaction,
to refinance other outstanding Indebtedness or to finance Permitted
Acquisitions) or Preferred Stock (other than Qualified Preferred Stock of the
Borrower) after the first day of the relevant Calculation Period as if such
Indebtedness had been incurred or issued (and the proceeds thereof applied) on
the first day of the relevant Calculation Period, (y) the permanent repayment of
any Indebtedness (other than the revolving Indebtedness, except to the extent
paid with Permitted Debt or Disqualified Preferred Stock) or Preferred Stock
(other than Qualified Preferred Stock of the Borrower) after the first day of
the relevant Calculation Period as if such Indebtedness or Preferred Stock had
been retired or redeemed on the first day of the relevant Calculation Period and
(z) the Permitted Acquisition, if any, then being (or proposed to be)
consummated as well as any other Permitted Acquisition consummated after the
first day of the relevant Calculation Period and on or prior to the date of the
respective Permitted Acquisition then being (or proposed to be) effected, with
the following rules to apply in connection therewith:
(i) all Indebtedness and Preferred Stock (other than Qualified
Preferred Stock of the Borrower) (x) (other than revolving Indebtedness,
except to the extent same is incurred to finance the Transaction, to
refinance other outstanding Indebtedness, or to finance Permitted
Acquisitions) incurred or issued after the first day of the relevant
Calculation Period (whether incurred to finance a Permitted Acquisition, to
refinance Indebtedness or otherwise) shall be deemed to have been incurred
or issued (and the proceeds thereof applied) on the first day of the
respective Calculation Period and remain outstanding through the date of
determination and (y) (other than revolving Indebtedness except to the
extent paid with Permitted Debt or Disqualified Preferred Stock)
permanently retired or redeemed after the first day of the relevant
Calculation Period shall be deemed to have been retired or redeemed on the
first day of the respective Calculation Period and remain retired through
the date of determination;
(ii) all Indebtedness or Preferred Stock (other than Qualified
Preferred Stock of the Borrower) assumed to be outstanding pursuant to
preceding clause (i) shall be
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deemed to have borne interest or accrued dividends, as the case may be, at
(x) the rate applicable thereto, in the case of fixed rate Indebtedness or
Preferred Stock or (y) the rates which would have been applicable thereto
during the respective period when same was deemed outstanding, in the case
of floating rate Indebtedness or Preferred Stock (although interest expense
with respect to any Indebtedness or Preferred Stock for periods while same
was actually outstanding during the respective period shall be calculated
using the actual rates applicable thereto while same was actually
outstanding); and
(iii) in making any determination of Consolidated EBITDA, pro forma
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effect shall be given to any Permitted Acquisition consummated after the
first day of the respective period being tested, taking into account, for
any portion of the relevant period being tested occurring prior to the
consummation of such Permitted Acquisition, demonstrable cost savings
actually achieved (or to be achieved) simultaneously with, or within the
one year period following, the closing of the respective Permitted
Acquisition, which cost savings would be permitted to be recognized in pro
---
forma statements prepared in accordance with Regulation S-X under the
-----
Securities Act, as if such cost-savings were realized on the first day of
the relevant period;
(iv) without duplication of adjustments provided above, in case of any
Permitted Acquisition consummated after the first day of the relevant
period being tested, pro forma effect shall be given to the termination or
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replacement of operating leases with Capitalized Lease Obligations or other
Indebtedness, and to any replacement of Capitalized Lease Obligations or
other Indebtedness with operating leases, in each case effected at the time
of the consummation of such Permitted Acquisition or thereafter, in each
case if effected after the first day of the period being tested and prior
to the date the respective determination is being made, as if such
termination or replacement had occurred on the first day of the relevant
period; and
(v) in making any determination of Consolidated EBITDA for purposes of
any calculation of the Adjusted Total Leverage Ratio, the Adjusted Senior
Leverage Ratio or the Consolidated Interest Coverage Ratio only, (x) for
any Permitted Acquisition which occurred during the last two fiscal
quarters comprising the respective Test Period (and, in the case of Section
8.14 or definition of "Additional Loan Commitment Requirements", thereafter
and on or prior to the relevant date of determination), there shall be
added to Consolidated EBITDA the amount of Permitted Acquisition Additional
Cost Savings, determined in accordance with the definition thereof
contained herein, expected to be realized with respect to such Permitted
Acquisition, (y) for any Permitted Acquisition effected in the second
fiscal quarter of the respective Test Period, the Consolidated EBITDA shall
be increased by 50% of the Permitted Acquisition Additional Cost Savings
estimated to arise in connection with the respective Permitted Acquisition
and (z) for any Permitted Acquisition effected in the first fiscal quarter
of the respective Test Period, the Consolidated EBITDA shall be increased
by 25% of the Permitted Acquisition Additional Cost Savings estimated to
arise in connection with the respective Permitted Acquisition; provided
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that the aggregate additions to Consolidated EBITDA, for any period being
tested, pursuant to this clause (v) shall not exceed 15% of the amount
which would have been Consolidated EBITDA in the absence of the adjustment
pursuant to this clause (v).
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Notwithstanding anything to the contrary contained above, (x) for purposes of
Sections 9.08 and 9.09, and for purposes of all determinations of the Applicable
Margins, pro forma effect (as otherwise provided above) shall only be given for
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events or occurrences which occurred during the respective Test Period but not
thereafter and (y) for purposes of Section 8.14 and the definition of
"Additional Loan Commitment Requirements", pro forma effect (as otherwise
--- -----
provided above) shall be given for events or occurrences which occurred during
the respective Test Period and thereafter but on or prior to the respective date
of determination.
"Projections" shall have the meaning provided in Section 5.14(b).
"Qualified Preferred Stock" shall mean any Preferred Stock of the
Borrower, the express terms of which shall provide that dividends thereon (other
than dividends payable in the form of Qualified Preferred Stock) shall not be
required to be paid at any time (and to the extent) that such payment would be
prohibited by the terms of this Agreement or any other agreement of the Borrower
relating to outstanding indebtedness and 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 (including any Change of Control Event), cannot
mature (excluding any maturity as the result of an optional redemption by the
issuer thereof) and is not mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, and is not redeemable, or required to be repurchased,
at the sole option of the holder thereof (including, without limitation, upon
the occurrence of a Change of Control Event), in whole or in part, on or prior
to the earlier to occur of (x) the first anniversary of the latest Maturity Date
(determined at the time of respective issuance of Qualified Preferred Stock) and
(y) the repayment in full in cash of all Obligations and the termination of the
Total Commitment and all Letters of Credit.
"Quarterly Payment Date" shall mean the last Business Day of each
March, June, September and December.
"Quarterly Pricing Certificate" shall have the meaning provided in the
definition of Applicable Margin.
"Real Property" of any Person shall mean all of the right, title and
interest of such Person in and to land, improvements and fixtures, including
Leaseholds.
"Recovery Event" shall mean the receipt by the Borrower or any of its
Subsidiaries of any insurance or condemnation proceeds (other than proceeds from
business interruption insurance) payable (i) by reason of theft, physical
destruction or damage or any other similar event with respect to any properties
or assets of the Borrower or any of its Subsidiaries, (ii) by reason of any
condemnation, taking, seizing or similar event with respect to any properties or
assets of the Borrower or any of its Subsidiaries and (iii) under any policy of
insurance required to be maintained under Section 8.03.
"Register" shall have the meaning provided in Section 13.17.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof establishing reserve requirements.
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"Regulation T" shall mean Regulation T of the Board of Governors of
the Federal Reserve System as from to time in effect and any successor to all or
any portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor to
all or any portion thereof.
"Release" means disposing, discharging, injecting, spilling, pumping,
leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing,
pouring and the like, into or upon any land or water or air, or otherwise
entering into the environment.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Plan that is subject to Title IV of ERISA other than
those events as to which the 30-day notice period is waived under subsection
.22, .23, .25, .27, or .28 of PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks, the sum of whose
outstanding Term Loans and Revolving Loan Commitments (or after the termination
thereof, outstanding Revolving Loans and RL Percentage of outstanding Swingline
Loans and Letter of Credit Outstandings) represent an amount greater than 50% of
the sum of all outstanding Term Loans of Non-Defaulting Banks and the sum of all
Revolving Loan Commitments of all Non-Defaulting Banks (or after the termination
thereof, the sum of the then total outstanding Revolving Loans of Non-Defaulting
Banks and the aggregate RL Percentages of all Non-Defaulting Banks of the total
outstanding Swingline Loans and Letter of Credit Outstandings at such time).
"Revolving Loan" shall have the meaning provided in Section 1.01(b).
"Revolving Loan Commitment" shall mean, with respect to each RL Bank,
the amount set forth opposite such Bank's name in Schedule I directly below the
column entitled "Revolving Loan Commitment," as the same may be (x) reduced from
time to time pursuant to Sections 3.02, 3.03, 4.02 and/or Section 10, (y)
adjusted from to time as a result of assignments to or from such Bank pursuant
to Section 1.13 or 13.04(b) or (z) adjusted pursuant to Section 1.14, it being
understood that on each Additional Revolving Loan Commitment Date, the
Additional Revolving Loan Commitment of any Bank becoming effective on such date
shall be added to (and thereafter become all or a part of) the Revolving Loan
Commitment of such Bank for all purposes of this Agreement as contemplated by
Section 1.14.
"Revolving Loan Maturity Date" shall mean April 30, 2004.
"Revolving Note" shall have the meaning provided in Section 1.05(a).
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"RL Bank" shall mean at any time each Bank with a Revolving Loan
Commitment or with outstanding Revolving Loans.
"RL Percentage" of any Bank at any time shall mean a fraction
(expressed as a percentage) the numerator of which is the Revolving Loan
Commitment of such Bank at such time and the denominator of which is the Total
Revolving Loan Commitment at such time, provided that if the RL Percentage of
--------
any Bank is to be determined after the Total Revolving Loan Commitment has been
terminated, then the RL Percentages of the Banks shall be determined immediately
prior (and without giving effect) to such termination.
"RL Reduction Percentage" shall mean, at any time, a fraction
(expressed as a percentage), the numerator of which is equal to the Total
Revolving Loan Commitment in effect at such time and the denominator of which is
equal to the sum of (x) the aggregate principal amount of all Tranche B Term
Loans outstanding at such time plus (y) the Total Revolving Loan Commitment in
----
effect at such time.
"Rollover Amount" shall have the meaning provided in Section 9.10.
"S&P" shall mean Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc.
"Scheduled Repayment" shall mean any Tranche A Term Loan Scheduled
Repayment and/or any Tranche B Term Loan Scheduled Repayment.
"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Section 4.04(b)(ii) Certificate" shall have the meaning provided in
Section 4.04(b)(ii).
"Secured Creditors" shall have the meaning provided in the Security
Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section
5.09(b).
"Security Agreement Collateral" shall mean all "Collateral" as defined
in the Security Agreement.
"Security Documents" shall mean and include the Security Agreement,
the Pledge Agreement, each Mortgage and each Additional Security Document, if
any.
"Senior Subordinated Notes" shall mean the Borrower's 10-1/2% Senior
Subordinated Notes due 2009, issued pursuant to the Senior Subordinated Notes
Indenture, as in effect on the Effective Date and as the same may be amended,
modified or supplemented from time to time in accordance with the terms hereof
and thereof. As used herein, the term "Senior Subordinated Notes" shall include
any Exchange Senior Subordinated Notes issued pursuant to
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the Senior Subordinated Notes Indenture in exchange for theretofore outstanding
Senior Subordinated Notes, as contemplated by the Offering Memorandum, dated as
of April 23, 1999, and the definition of Exchange Senior Subordinated Notes.
"Senior Subordinated Notes Documents" shall mean the Senior
Subordinated Notes, the Senior Subordinated Notes Indenture and all other
documents executed and delivered with respect to the Senior Subordinated Notes
or Senior Subordinated Notes Indenture, as in effect on the Effective Date and
as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Subordinated Notes Indenture" shall mean the Indenture, dated
as of April 30, 1999, among the Borrower, the Subsidiary Guarantors and the
Senior Subordinated Notes Indenture Trustee, as in effect on the Effective Date
and as the same may be amended, modified or supplemented from time to time in
accordance with the terms hereof and thereof.
"Senior Subordinated Notes Indenture Trustee" shall mean IBJ Whitehall
Bank & Trust Company and any successor thereto.
"Shareholder Subordinated Note" shall mean an unsecured junior
subordinated note issued by the Borrower (and not guaranteed or supported in any
way by the Borrower or any of its Subsidiaries) in the form of Exhibit N.
"Shareholders' Agreements" shall have the meaning provided in Section
5.11.
"Shell Company" shall mean, subject to the provisions of Section
8.11(d), any entity established to effect a Permitted Acquisition which has not
yet occurred, so long as the aggregate amount of assets at any time held by all
Shell Companies at any time in existence does not exceed $250,000, it being
understood that at the time of the consummation of the respective Permitted
Acquisition or at such time as the assets of any entity which was a Shell
Company exceed $250,000, such entity shall cease to be a Shell Company.
"Standby Letter of Credit" shall have the meaning provided in Section
2.01(a).
"Start Date" shall have the meaning provided in the definition of
Applicable Margin.
"Stated Amount" of each Letter of Credit shall mean the maximum amount
available to be drawn thereunder (regardless of whether any conditions for
drawing could then be met).
"Subsidiaries Guaranty" shall have the meaning provided in Section
5.10.
"Subsidiary" of any Person shall mean and include (i) any corporation
more than 50% of whose stock of any class or classes having by the terms thereof
ordinary voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person directly or
indirectly through Subsidiaries and (ii) any partnership, association, joint
venture or other entity (other than
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a corporation) in which such Person directly or indirectly through Subsidiaries,
has more than a 50% equity interest at the time.
"Subsidiary Guarantor" shall mean shall mean each Wholly-Owned
Domestic Subsidiary (and, to the extent required by Section 8.12, each Wholly-
Owned Foreign Subsidiary) of the Borrower that is or becomes a party to the
Subsidiaries Guaranty (or any substantially similar form as required by Section
8.12).
"Swingline Expiry Date" shall mean the date which is five Business
Days prior to the Revolving Loan Maturity Date.
"Swingline Loan" shall have the meaning provided in Section 1.01(c).
"Swingline Note" shall have the meaning provided in Section 1.05(a).
"Syndication Agent" shall have the meaning provided in the first
paragraph of this Agreement and shall include any successor to the Syndication
Agent appointed pursuant to Section 12.10.
"Syndication Date" shall mean that date upon which the Administrative
Agent determines (and notifies the Borrower and the Banks) that the primary
syndication (and resultant addition of Persons as Banks pursuant to Section
13.04(b)) has been completed.
"Tax Allocation Agreements" shall have the meaning provided in Section
5.11.
"Taxes" shall have the meaning provided in Section 4.04(a).
"Tender Offer" have the meaning provided in Section 5.08(a).
"Tender Offer Adjustment Period" shall mean the 15-day period
following the Initial Borrowing Date during which the Borrower shall calculate
the payments to be made to the shareholders and optionholders of the Borrower
Common Stock pursuant to the Common Stock Repurchase (based on their respective
shares tendered pursuant to the Tender Offer) in accordance with the Tender
Offer Documents.
"Tender Offer Documents" shall mean all of the agreements and
documents governing, or relating to, the Tender Offer and the Common Stock
Repurchase.
"Tender Offer Paying Agent" shall mean Harris Trust and any successor
thereto.
"Term Loans" shall mean and include Tranche A Term Loans and Tranche B
Term Loans.
"Test Period" shall mean each period of four consecutive fiscal
quarters then last ended, in each case taken as one accounting period.
Notwithstanding anything to the contrary contained above or in Section 13.07 or
otherwise required by GAAP, in the case of any Test Period ending prior to the
first anniversary of the Initial Borrowing Date, such period shall be a one-year
period ending on the last day of the fiscal quarter last ended, with any
calculations of
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(x) Consolidated Interest Expense required in determining compliance with
Section 9.08 to be made on a pro forma basis in accordance with,
--- -----
and to the extent provided in, the immediately succeeding sentence and (y)
Consolidated EBITDA required in determining compliance with Sections 9.08 and
9.09 to be made on a pro forma basis in accordance with, and to the extent
--- -----
provided in, the second succeeding sentence. To the extent the respective Test
Period (i) includes the third fiscal quarter of the fiscal year ended December
31, 1998, Consolidated Interest Expense for such fiscal quarter shall be deemed
to be $10,158,250 (or, in the event interest due on outstanding Convertible
Subordinated Notes during the last fiscal quarter of the Test Period included in
the respective determination is paid through the issuance of additional
Convertible Subordinated Notes, $8,283,250), (ii) includes the fourth fiscal
quarter of the fiscal year ended December 31, 1998, Consolidated Interest
Expense for such fiscal quarter shall be deemed to be $10,158,250 (or, in the
event interest due on outstanding Convertible Subordinated Notes during the last
fiscal quarter of the Test Period included in the respective determination is
paid through the issuance of additional Convertible Subordinated Notes,
$8,283,250), (iii) includes the first fiscal quarter of the fiscal year ended
December 31, 1999, Consolidated Interest Expense for such fiscal quarter shall
be deemed to be $10,158,250 (or, in the event interest due on outstanding
Convertible Subordinated Notes during the last fiscal quarter of the Test Period
included in the respective determination is paid through the issuance of
additional Convertible Subordinated Notes, $8,283,250) and (iv) includes the
second fiscal quarter for the year ended December 31, 1999, Consolidated
Interest Expense shall be determined by (x) taking actual Consolidated Interest
Expense determined in accordance with the definition thereof for any period
beginning on, and ending after, the Initial Borrowing Date and (y) for each day
of such fiscal quarter occurring prior to the Initial Borrowing Date, using a
per-day Consolidated Interest Expense of $112,869.44 (or, in the event interest
due on outstanding Convertible Subordinated Notes during the last fiscal quarter
of the Test Period included in the respective determination is paid through the
issuance of additional Convertible Subordinated Notes, $92,036.11); provided
--------
that any additional adjustments required by the definition of Pro Forma Basis
--- -----
for occurrences after the Initial Borrowing Date shall also be made. To the
extent the respective Test Period (i) includes the third fiscal quarter of the
fiscal year ended December 31, 1998, Consolidated EBITDA for such fiscal quarter
shall be deemed to be $38,583,000, (ii) includes the fourth fiscal quarter of
the fiscal year ended December 31, 1998, Consolidated EBITDA for such fiscal
quarter shall be deemed to be $36,226,000, (iii) includes the first fiscal
quarter of the fiscal year ended December 31, 1999, Consolidated EBITDA for such
fiscal quarter shall be deemed to be $30,520,000 and (iv) includes the second
fiscal quarter of the fiscal year ended December 31, 1999, Consolidated EBITDA
shall be determined by taking actual Consolidated EBITDA determined in
accordance with the definition thereof for such fiscal quarter (it being
understood that Consolidated EBITDA for such fiscal quarter shall be restated
once the financial results for such fiscal quarter are made available and
reported as provided in Section 8.01(b)); provided that any additional
--------
adjustments required by the definition of Pro Forma Basis for occurrences after
--- -----
the Initial Borrowing Date shall also be made.
"Total Commitment" shall mean the sum of the Total Tranche A Term Loan
Commitment, the Total Tranche B Term Loan Commitment and the Total Revolving
Loan Commitment.
"Total Leverage Ratio" shall mean on any date the ratio of (i)
Consolidated Debt on such date to (ii) Consolidated EBITDA for the Test Period
most recently ended on or prior to
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such date. All calculations of the Total Leverage Ratio shall be made on a Pro
---
Forma Basis, it being understood and agreed that, as provided in the definition
- -----
of Pro Forma Basis, the adjustments contained in clause (v) thereof shall not be
--- -----
taken into account in determining the Total Leverage Ratio.
"Total Revolving Loan Commitment" shall mean the sum of the Revolving
Loan Commitments of each of the Banks.
"Total Tranche A Term Loan Commitment" shall mean the sum of the
Tranche A Term Loan Commitments of each of the Banks.
"Total Tranche B Term Loan Commitment" shall mean the sum of the
Tranche B Term Loan Commitments of each of the Banks.
"Tranche A Term Loan" shall have the meaning provided in Section
1.01(a).
"Tranche A Term Loan Commitment" shall mean, with respect to each
Bank, the amount set forth opposite such Bank's name in Schedule I directly
below the column entitled "Tranche A Term Loan Commitment" as the same may be
terminated pursuant to Sections 3.03 and/or 10.
"Tranche A Term Loan Maturity Date" shall mean April 30, 2004.
"Tranche A Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(i).
"Tranche A Term Note" shall have the meaning provided in Section
1.05(a).
"Tranche B Term Loan" shall mean have the meaning provided in Section
1.01(e).
"Tranche B Term Loan Bank" shall have the meaning provided in Section
1.14(b).
"Tranche B Term Loan Commitment" shall mean, for each Bank, any
commitment to make Tranche B Term Loans provided by such Bank pursuant to
Section 1.14, in such amount as agreed to by such Bank in the respective Tranche
B Term Loan Commitment Agreement and as set forth opposite such Bank's name in
Schedule I hereto (as modified in accordance with Section 1.14) directly below
the column entitled "Tranche B Term Loan Commitment" as the same may be
terminated or reduced from time to time pursuant to Sections 3.03 and/or 10.
"Tranche B Term Loan Commitment Agreement" shall mean a Tranche B Term
Loan Commitment Agreement substantially in the form of Exhibit O-1
(appropriately completed).
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"Tranche B Term Loan Commitment Date" shall mean each date upon which
a Tranche B Term Loan Commitment under a Tranche B Term Loan Commitment
Agreement becomes effective as provided in Section 1.14(b)(i).
"Tranche B Term Loan Maturity Date" shall mean April 30, 2004.
"Tranche B Term Loan Scheduled Repayment" shall have the meaning
provided in Section 4.02(b)(ii).
"Tranche B Term Loan Sub-Facility" shall mean a sub-facility under the
facility evidenced by the Total Tranche B Term Loan Commitment relating to the
Tranche B Term Loan Commitments of one or more Banks extended pursuant to a
given Tranche B Term Loan Commitment Agreement to make a Tranche B Term Loan or
Tranche B Term Loans under such sub-facility.
"Tranche B Term Note" shall have the meaning provided in Section
1.05(a).
"Total Unutilized Revolving Loan Commitment" shall mean, at any time,
(i) the Total Revolving Loan Commitment at such time less (ii) the sum of the
----
aggregate principal amount of all Revolving Loans and Swingline Loans
outstanding at such time plus the Letter of Credit Outstandings at such time.
"Trade Letter of Credit" shall have the meaning set forth in Section
2.01(a).
"Tranche" shall mean the respective facility and commitments utilized
in making Loans hereunder, with there being four separate Tranches, i.e.,
----
Tranche A Term Loans, Tranche B Term Loans, Revolving Loans and Swingline Loans.
"Transaction" shall mean, collectively, (i) the Tender Offer, (ii) the
Common Stock Repurchase, (iii) the issuance of the Senior Subordinated Notes,
(iv) the issuance of Convertible Subordinated Notes, (v) the entering into of
the Credit Documents and the incurrence of all Loans on the Initial Borrowing
Date and (vi) the payment of fees and expenses in connection with the foregoing.
"Type" shall mean any type of Loan determined with respect to the
interest option applicable thereto, i.e., a Base Rate Loan or a Eurodollar Loan.
----
"UCC" shall mean the Uniform Commercial Code as in effect from time to
time in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if
any, by which the actuarial present value of the accumulated plan benefits under
the Plan as of the close of its most recent plan year exceeds the fair market
value of the assets allocable thereto, each determined in accordance with
Statement of Financial Accounting Standards No. 87, based upon the actuarial
assumptions used by the Plan's actuary in the most recent annual valuation of
the Plan.
"Unpaid Drawing" shall have the meaning provided in Section 2.04(a).
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"Unutilized Revolving Loan Commitment" with respect to any RL Bank at
any time shall mean such RL Bank's Revolving Loan Commitment at such time less
----
the sum of (i) the aggregate outstanding principal amount of all Revolving Loans
made by such RL Bank and (ii) such RL Bank's RL Percentage of the total Letter
of Credit Outstandings at such time.
"U.S. Dollars" and the sign "$" shall each mean freely transferable
lawful money of the United States of America.
"Wholly-Owned Domestic Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is a Domestic Subsidiary.
"Wholly-Owned Foreign Subsidiary" shall mean, as to any Person, any
Wholly-Owned Subsidiary of such Person which is not a Domestic Subsidiary.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any
corporation 100% of whose capital stock (other than director's qualifying shares
and/or other nominal amounts of shares required to be held other than by such
Person under applicable law) is at the time owned by such Person and/or one or
more Wholly-Owned Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person and/or one or
more Wholly-Owned Subsidiaries of such Person has a 100% equity interest at such
time.
"Written" (whether lower or upper case) or "in writing" shall mean any
form of written communication or a communication by means of telex, facsimile
device, telegraph or cable.
"Year 2000 Compliant" shall mean that all Information Systems and
Equipment accurately process date data (including, but not limited to,
calculating, comparing and sequencing), before, during and after the year 2000,
as well as same and multi-century dates, or between the years 1999 and 2000,
taking into account all leap years, including the fact that the year 2000 is a
leap year, and further, that when used in combination with, or interfacing with,
other Information Systems and Equipment, shall accurately accept, release and
exchange date data, and shall in all material respects continue to function in
the same manner as it performs today and shall not otherwise impair the accuracy
or functionality of Information Systems and Equipment.
SECTION 12. The Agents.
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12.01 Appointment. Each Bank hereby irrevocably designates and
-----------
appoints BTCo as Administrative Agent of such Bank (for purposes of this Section
12, the term "Administrative Agent" shall mean BTCo in its capacity as
Administrative Agent hereunder and Collateral Agent pursuant to the Security
Documents), Goldman Sachs Credit Partners L.P. as Documentation Agent and
Salomon Smith Barney, Inc. as Syndication Agent to act as specified herein and
in the other Credit Documents, and each such Bank hereby irrevocably authorizes
the Administrative Agent, the Documentation Agent and the Syndication Agent to
take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent, the Documentation Agent or
the Syndication Agent, as the case may be, by the terms of this Agreement and
the other Credit Documents, together with such other powers as are
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reasonably incidental thereto. Each of the Administrative Agent, the
Documentation Agent and the Syndication Agent agrees to act as such upon the
express conditions contained in this Section 12. Notwithstanding any provision
to the contrary elsewhere in this Agreement or in any other Credit Document, the
Administrative Agent, the Documentation Agent and the Syndication Agent shall
not have any duties or responsibilities, except those expressly set forth herein
or in the other Credit Documents, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against the
Administrative Agent, the Documentation Agent or the Syndication Agent. The
provisions of this Section 12 are solely for the benefit of the Administrative
Agent, the Documentation Agent and the Syndication Agent and the Banks, and
neither the Borrower nor any of its Subsidiaries shall have any rights as a
third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement, each of the Administrative Agent, the
Documentation Agent and the Syndication Agent shall act solely as agent of the
Banks and the Administrative Agent, the Documentation Agent and the Syndication
Agent does not assume and shall not be deemed to have assumed any obligation or
relationship of agency or trust with or for the Borrower or any of its
Subsidiaries.
12.02 Delegation of Duties. Each of the Administrative Agent, the
--------------------
Documentation Agent and the Syndication Agent may execute any of its duties
under this Agreement or any other Credit Document by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. None of the Administrative Agent, the
Documentation Agent or the Syndication Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
12.03 Exculpatory Provisions. None of the Administrative Agent, the
----------------------
Documentation Agent or the Syndication Agent nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be (i)
liable for any action lawfully taken or omitted to be taken by it or such Person
in its capacity as Administrative Agent, Documentation Agent or Syndication
Agent, as the case may be, under or in connection with this Agreement or the
other Credit Documents (except for its or such person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Banks for
any recitals, statements, representations or warranties made by the Borrower,
any of its Subsidiaries or any of their respective officers contained in this
Agreement or the other Credit Documents, any other Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent, the Documentation Agent or the
Syndication Agent under or in connection with, this Agreement or any other
Document or for any failure of the Borrower or any of its Subsidiaries or any of
their respective officers to perform its obligations hereunder or thereunder.
None of the Administrative Agent, the Documentation Agent or the Syndication
Agent shall be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or the other Documents, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries. None
of the Administrative Agent, the Documentation Agent or the Syndication Agent
shall be responsible to any Bank for the effectiveness, genuineness, validity,
enforceability, collectability or sufficiency of this Agreement or any other
Document or for any representations, warranties, recitals or statements made
herein or therein or made in any written or oral statement or in any financial
or other statements, instruments, reports, certificates or any
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other documents in connection herewith or therewith furnished or made by the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, to the Banks or by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent, the Documentation Agent or the
Syndication Agent, as the case may be, or any Bank or be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained herein or therein or as to the use
of the proceeds of the Loans or of the existence or possible existence of any
Default or Event of Default.
12.04 Reliance by Agents. The Administrative Agent, the
------------------
Documentation Agent and the Syndication Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile, telex
or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower or any of
its Subsidiaries), independent accountants and other experts selected by the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be. Each of the Administrative Agent, the Documentation Agent and the
Syndication Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Required Banks as it deems appropriate
or it shall first be indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent, the Documentation
Agent and the Syndication Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement and the other Credit
Documents in accordance with a request of the Required Banks, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Banks.
12.05 Notice of Default. None of the Administrative Agent, the
-----------------
Documentation Agent or the Syndication Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default unless the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, has actually received notice from a Bank or the Borrower referring
to this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default." In the event that the Administrative
Agent, the Documentation Agent or the Syndication Agent receives such a notice,
the Administrative Agent, the Documentation Agent or the Syndication Agent, as
the case may be, shall give prompt notice thereof to the Banks. The
Administrative Agent, the Documentation Agent or the Syndication Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Banks; provided, that, unless and until the
--------
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, shall have received such directions, the Administrative Agent, the
Documentation Agent or the Syndication Agent, as the case be, may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
12.06 Nonreliance on Agents and Other Banks. Each Bank expressly
-------------------------------------
acknowledges that none of the Administrative Agent, the Documentation Agent, the
Syndication Agent or any of their respective officers, directors, employees,
agents, attorneys-in-fact or
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affiliates has made any representations or warranties to it and that no act by
the Administrative Agent, the Documentation Agent or the Syndication Agent
hereinafter taken, including any review of the affairs of the Borrower or any of
its Subsidiaries, shall be deemed to constitute any representation or warranty
by the Administrative Agent, the Documentation Agent or the Syndication Agent to
any Bank. Each Bank represents to the Administrative Agent, the Documentation
Agent and the Syndication Agent that it has, independently and without reliance
upon the Administrative Agent, the Documentation Agent or the Syndication Agent
or any other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Borrower or its Subsidiaries and made its own decision
to make its Loans hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon the
Administrative Agent, the Documentation Agent or the Syndication Agent or any
other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement, and to make
such investigation as it deems necessary to inform itself as to the business,
assets, operations, property, financial and other condition, prospects and
creditworthiness of the Borrower or its Subsidiaries. None of the Administrative
Agent, the Documentation Agent or the Syndication Agent shall have any duty or
responsibility to provide any Bank with any credit or other information
concerning the business, operations, assets, property, financial and other
condition, prospects or creditworthiness of the Borrower or its Subsidiaries
which may come into the possession of the Administrative Agent, the
Documentation Agent or the Syndication Agent or any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates.
12.07 Indemnification. The Banks agree to indemnify each of the
---------------
Administrative Agent, the Documentation Agent and the Syndication Agent in their
respective capacities as such ratably according to their respective
"percentages" as used in determining the Required Banks at such time or, if the
Commitments have terminated and all Loans have been repaid in full, as
determined immediately prior to such termination and repayment (with such
"percentages" to be determined as if there are no Defaulting Banks), from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Obligations) be imposed on, incurred by or
asserted against the Administrative Agent, the Documentation Agent or the
Syndication Agent, as the case may be, in their respective capacities as such in
any way relating to or arising out of this Agreement or any other Credit
Document, or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted to be taken by
the Administrative Agent, the Documentation Agent or the Syndication Agent under
or in connection with any of the foregoing, but only to the extent that any of
the foregoing is not paid by the Borrower or any of its Subsidiaries; provided,
--------
that no Bank shall be liable to the Administrative Agent, the Documentation
Agent or the Syndication Agent for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the gross negligence or
willful misconduct of the Administrative Agent, the Documentation Agent or the
Syndication Agent. If any indemnity furnished to the Administrative Agent, the
Documentation Agent or the Syndication Agent for any purpose shall, in the
opinion of the Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, be insufficient or become impaired, the
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Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, may call for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity is furnished. The
agreements in this Section 12.07 shall survive the payment of all Obligations.
12.08 Agents in their Individual Capacities. Each of the
-------------------------------------
Administrative Agent, the Documentation Agent and the Syndication Agent and
their respective affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Borrower and its Subsidiaries
as though the Administrative Agent, the Documentation Agent or the Syndication
Agent, as the case may be, were not the Administrative Agent, the Documentation
Agent or the Syndication Agent, as the case may be, hereunder. With respect to
the Loans made by it and all Obligations owing to it, each of the Administrative
Agent, the Documentation Agent and the Syndication Agent shall have the same
rights and powers under this Agreement as any Bank and may exercise the same as
though it were not the Administrative Agent, the Documentation Agent or the
Syndication Agent, as the case may be, and the terms "Bank" and "Banks" shall
include the Administrative Agent, the Documentation Agent and the Syndication
Agent in their individual capacities.
12.09 Holders. The Administrative Agent may deem and treat the payee
-------
of any Note as the owner thereof for all purposes hereof unless and until a
written notice of the assignment, transfer or endorsement thereof, as the case
may be, shall have been filed with the Administrative Agent. Any request,
authority or consent of any Person or entity who, at the time of making such
request or giving such authority or consent, is the holder of any Note shall be
conclusive and binding on any subsequent holder, transferee, assignee or
indorsee, as the case may be, of such Note or of any Note or Notes issued in
exchange therefor.
12.10 Resignation of the Agents. (a) The Administrative Agent may
-------------------------
resign from the performance of all its functions and duties hereunder and/or
under the other Credit Documents at any time by giving 30 Business Days' prior
written notice to the Borrower and the Banks. Such resignation shall take
effect upon the appointment of a successor Administrative Agent pursuant to
clauses (b) and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation, the Required Banks shall
appoint a successor Administrative Agent hereunder or thereunder who shall be a
commercial bank or trust company reasonably acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so
appointed within such 30 Business Day period, the Administrative Agent, with the
consent of the Borrower (which consent shall not be unreasonably withheld or
delayed), shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Required Banks appoint a successor Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Banks shall thereafter
perform all the duties of the Administrative Agent hereunder
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and/or under any other Credit Document until such time, if any, as the Banks
appoint a successor Administrative Agent as provided above.
(e) The Syndication Agent may resign from the performance of all its
functions and duties hereunder and/or under the other Credit Documents at any
time by giving five Business Days' prior written notice to the Banks. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Syndication Agent, the
Administrative Agent shall assume all of the functions and duties of the
Syndication Agent hereunder and/or under the other Credit Documents.
(f) The Documentation Agent may resign from the performance of all
its functions and duties hereunder and/or under the other Credit Documents at
any time by giving five Business Days' prior written notice to the Banks. Such
resignation shall take effect at the end of such five Business Day period. Upon
the effectiveness of the resignation of the Documentation Agent, the
Administrative Agent shall assume all of the functions and duties of the
Documentation Agent hereunder and/or under the other Credit Documents.
SECTION 13. Miscellaneous.
-------------
13.01 Payment of Expenses, etc. The Borrower agrees to: (i) whether
-------------------------
or not the transactions herein contemplated are consummated, pay all reasonable
out-of-pocket costs and expenses of the Agents (including, without limitation,
the reasonable fees and disbursements of White & Case, LLP and local counsel) in
connection with the negotiation, preparation, execution and delivery of the
Credit Documents and the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto and in connection with the Agents'
syndication efforts with respect to this Agreement; (ii) pay all reasonable out-
of-pocket costs and expenses of each Agent, each Letter of Credit Issuer and
each of the Banks in connection with the enforcement of the Credit Documents and
the documents and instruments referred to therein and, after an Event of Default
shall have occurred and be continuing, the protection of the rights of each
Agent, each Letter of Credit Issuer and each of the Banks thereunder (including,
without limitation, the reasonable fees and disbursements of counsel (including
in-house counsel) for each Agent, for each Letter of Credit Issuer and for each
of the Banks); (iii) pay and hold each of the Banks harmless from and against
any and all present and future stamp and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iv)
indemnify each Agent, the Collateral Agent, each Letter of Credit Issuer and
each Bank, their respective officers, directors, employees, representatives,
trustees and agents from and hold each of them harmless against any and all
losses, liabilities, claims, damages or expenses incurred by any of them as a
result of, or arising out of, or in any way related to, or by reason of, (a) any
investigation, litigation or other proceeding (whether or not any Agent, the
Collateral Agent, any Letter of Credit Issuer or any Bank is a party thereto and
whether or not any such investigation, litigation or other proceeding is between
or among any Agent, the Collateral Agent, any Letter of Credit Issuer, any Bank,
any Credit Party or any third Person or otherwise) related to the entering into
and/or performance of this Agreement or any other Document or the use of the
proceeds of any Loans hereunder or the Transaction or the consummation of any
other transactions contemplated in any Document (but excluding any such losses,
liabilities, claims, damages or expenses to the extent incurred by
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reason of the gross negligence or willful misconduct of the Person to be
indemnified), or (b) the actual or alleged presence of Hazardous Materials in
the air, surface water or groundwater or on the surface or subsurface of any
Real Property or any Environmental Claim, in each case, including, without
limitation, the reasonable fees and disbursements of counsel and independent
consultants incurred in connection with any such investigation, litigation or
other proceeding. To the extent that the undertaking to indemnify, pay or hold
harmless any Agent or any Bank set forth in the preceding sentence may be
unenforceable because it is violative of any law or public policy, the Borrower
shall make the maximum contribution to the payment and satisfaction of each of
the indemnified liabilities which is permissible under applicable law.
13.02 Right of Setoff. In addition to any rights now or hereafter
---------------
granted under applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default, each Agent, each Letter
of Credit Issuer and each Bank is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or any of its Subsidiaries or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and
all deposits (general or special) and any other Indebtedness at any time held or
owing by such Agent, such Letter of Credit Issuer or such Bank (including,
without limitation, by branches and agencies of the such Agent, such Letter of
Credit Issuer and such Bank wherever located) to or for the credit or the
account of the Borrower or any of its Subsidiaries against and on account of the
Obligations of the Borrower or any of its Subsidiaries to such Agent, such
Letter of Credit Issuer or such Bank under this Agreement or under any of the
other Credit Documents, including, without limitation, all interests in
Obligations of the Borrower or any of its Subsidiaries purchased by such Bank
pursuant to Section 13.06(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other Credit Document,
irrespective of whether or not such Agent, such Letter of Credit Issuer or such
Bank shall have made any demand hereunder and although said Obligations shall be
contingent or unmatured.
13.03 Notices. (a) Except as otherwise expressly provided herein,
-------
all notices and other communications provided for hereunder shall be in writing
(including telegraphic, telex, facsimile or cable communication) and mailed,
telegraphed, telexed, telecopied, cabled or delivered, if to any Credit Party,
at the address specified opposite its signature below or in the other relevant
Credit Documents, as the case may be; if to any Bank, at its address specified
for such Bank on Schedule II; or, at such other address as shall be designated
by any party in a written notice to the other parties hereto. All such notices
and communications shall be mailed, telegraphed, telexed, telecopied or cabled
or sent by overnight courier, and shall be effective when received.
(b) Without in any way limiting the obligation of the Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Administrative Agent or BTCo (in the case of a Borrowing of Swingline Loans) or
any Letter of Credit Issuer (in the case of the issuance of a Letter of Credit),
as the case may be, may prior to receipt of written confirmation act without
liability upon the basis of such telephonic notice, believed by the
Administrative Agent or BTCo or any Letter of Credit Issuer in good faith to be
from an Authorized Officer of the Borrower. In each such case, the Borrower
hereby waives the right to dispute the Administrative Agent's, BTCo's or such
Letter of Credit Issuer's record of the terms of such telephonic notice.
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13.04 Benefit of Agreement. (a) This Agreement shall be binding
--------------------
upon and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; provided, however, the Borrower may not
-------- -------
assign or transfer any of its rights, obligations or interest hereunder or under
any other Credit Document without the prior written consent of the Banks and,
provided further, that, although any Bank may transfer, assign or grant
- ----------------
participations in its rights hereunder, such Bank shall remain a "Bank" for all
purposes hereunder (and may not transfer or assign all or any portion of its
Commitments or Loans hereunder except as provided in Section 13.04(b)) and the
transferee, assignee or participant, as the case may be, shall not constitute a
"Bank" hereunder and, provided further, that no Bank shall transfer or grant any
----------------
participation under which the participant shall have rights to approve any
amendment to or waiver of this Agreement or any other Credit Document except to
the extent such amendment or waiver would (i) extend the final scheduled
maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is
not extended beyond the Revolving Loan Maturity Date) in which such participant
is participating, or reduce the rate or extend the time of payment of interest
or Fees thereon (except in connection with a waiver of applicability of any
post-default increase in interest rates) or reduce the principal amount thereof,
or increase the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default or of a mandatory reduction in the Total Commitment or of a
mandatory repayment of Loans shall not constitute a change in the terms of such
participation, that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof and that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i)), (ii) consent to the
assignment or transfer by the Borrower of any of its rights and obligations
under this Agreement or (iii) release all or substantially all of the Collateral
under all of the Security Documents (except as expressly provided in the
Security Documents) supporting the Loans hereunder in which such participant is
participating. In the case of any such participation, the participant shall not
have any rights under this Agreement or any of the other Credit Documents (the
participant's rights against such Bank in respect of such participation to be
those set forth in the agreement executed by such Bank in favor of the
participant relating thereto) and all amounts payable by the Borrower hereunder
shall be determined as if such Bank had not sold such participation.
(b) Notwithstanding the foregoing, any Bank (or any Bank together
with one or more other Banks) may (x) assign all or a portion of its Revolving
Loan Commitment (and related outstanding Obligations hereunder), its outstanding
Tranche A Term Loans and/or its outstanding Tranche B Term Loans under a given
Tranche B Term Loan Sub-Facility to (i) its parent company and/or any affiliate
of such Bank which is at least 50% owned by such Bank or its parent company or
to one or more Banks or (ii) in the case of any Bank that is a fund that invests
in bank loans, any other fund that invests in bank loans and is managed by the
same investment advisor of such Bank or by an Affiliate of such investment
advisor or (y) assign all, or if less than all, a portion equal to at least
$5,000,000 in the aggregate for the assigning Bank or assigning Banks, of such
Revolving Loan Commitments (and related outstanding Obligations hereunder) and
outstanding principal amount of Tranche A Term Loans and/or Tranche B Term
Loans under a given Tranche B Term Loan Sub-Facility to one or more Eligible
Transferees (treating (x) any fund that invests in bank loans and (y) any other
fund that invests in bank loans and is managed by the same investment advisor as
such fund or by an Affiliate of such investment advisor, as a single Eligible
Transferee), each of which assignees shall become a
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party to this Agreement as a Bank by execution of an Assignment and Assumption
Agreement, provided that (i) at such time Schedule I shall be deemed modified to
--------
reflect the Commitments, outstanding Tranche A Term Loans and/or outstanding
Tranche B Term Loans under a given Tranche B Term Loan Sub-Facility, as the case
may be, of such new Bank and of the existing Banks, (ii) upon surrender of the
old Notes (or the furnishing of a standard indemnity letter from the respective
assigning Bank in respect of any lost Notes), new Notes will be issued, at the
Borrower's expense, to such new Bank and to the assigning Bank, such new Notes
to be in conformity with the requirements of Section 1.05 (with appropriate
modifications) to the extent needed to reflect the revised Commitments,
outstanding Tranche A Term Loans and/or outstanding Tranche B Term Loans under a
given Tranche B Term Loan Sub-Facility, as the case may be, (iii) the consent of
the Administrative Agent and, so long as no Default or Event of Default is then
in existence, the Borrower shall be required in connection with any assignment
to an Eligible Transferee pursuant to clause (y) of this Section 13.04(b) (which
consent, in each case, shall not be unreasonably withheld or delayed), (iv) the
consent of each Letter of Credit Issuer shall be required in connection with any
assignment of Revolving Loan Commitments pursuant to clause (y) of this Section
13.04(b) (which consent shall not be unreasonably withheld or delayed) and (v)
the Administrative Agent shall receive at the time of each assignment, from the
assigning or assignee Bank, the payment of a non-refundable assignment fee of
$3,500 and, provided further, that such transfer or assignment will not be
----------------
effective until recorded by the Administrative Agent on the Register pursuant to
Section 13.17. To the extent of any assignment pursuant to this Section
13.04(b), the assigning Bank shall be relieved of its obligations hereunder with
respect to its assigned Commitments, outstanding Tranche A Term Loans and/or
outstanding Tranche B Term Loans under a given Tranche B Term Loan Sub-Facility,
as the case may be. At the time of each assignment pursuant to this Section
13.04(b) to a Person which is not already a Bank hereunder and which is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee Bank shall
provide to the Borrower and the Administrative Agent the appropriate Internal
Revenue Service Forms (and, if applicable a Section 4.04(b)(ii) Certificate)
described in Section 4.04(b). To the extent that an assignment of all or any
portion of a Bank's Commitment and outstanding Obligations pursuant to Section
1.13 or this Section 13.04(b) would, due to circumstances existing at the time
of such assignment, result in increased costs under Section 1.10, 1.11, 2.05 or
4.04 from those being charged by the respective assigning Bank prior to such
assignment, then the Borrower shall not be obligated to pay such increased costs
(although the Borrower shall be obligated to pay any other increased costs of
the type described above resulting from changes after the date of the respective
assignment). Notwithstanding anything to the contrary contained above, at any
time after the termination of the Total Revolving Loan Commitment, if any
Revolving Loans or Letters of Credit remain outstanding, assignments may be made
as provided above, except that the respective assignment shall be of a portion
of the outstanding Revolving Loans of the respective RL Bank and its
participation in Letters of Credit and its obligation to make Mandatory
Borrowings, although any such assignment effected after the termination of the
Total Revolving Loan Commitment shall not release the assigning RL Bank from its
obligations as a Participant with respect to outstanding Letters of Credit or to
fund its share of any Mandatory Borrowing (although the respective assignee may
agree, as between itself and the respective assigning RL Bank, that it shall be
responsible for such amounts).
(c) Nothing in this Agreement shall prevent or prohibit any Bank or
BTCo from pledging its Loans and Notes hereunder to a Federal Reserve Bank in
support of borrowings
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made by such Bank from such Federal Reserve Bank and, with the consent of the
Administrative Agent, any Bank which is a fund may pledge all or any portion of
its Notes or Loans to its trustee in support of its obligations to its trustee.
No pledge pursuant to this clause (c) shall release the transferor Bank from any
of its obligations hereunder.
13.05 No Waiver; Remedies Cumulative. No failure or delay on the
------------------------------
part of any Agent or any Bank in exercising any right, power or privilege
hereunder or under any other Credit Document and no course of dealing between
any Credit Party and any Agent or any Bank shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, power or privilege
hereunder or under any other Credit Document preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which any Agent or any
Bank would otherwise have. No notice to or demand on any Credit Party in any
case shall entitle any Credit Party to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of the
Agents or the Banks to any other or further action in any circumstances without
notice or demand.
13.06 Payments Pro Rata. (a) The Administrative Agent agrees that
-----------------
promptly after its receipt of each payment from or on behalf of any Credit Party
in respect of any Obligations of such Credit Party, it shall, except as
otherwise provided in this Agreement, distribute such payment to the Banks
(other than any Bank that has consented in writing to waive its pro rata share
--- ----
of such payment) pro rata based upon their respective shares, if any, of the
--- ----
Obligations with respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal of, or interest
on, the Loans, Unpaid Drawings or Fees, of a sum which with respect to the
related sum or sums received by other Banks is in a greater proportion than the
total of such Obligation then owed and due to such Bank bears to the total of
such Obligation then owed and due to all of the Banks immediately prior to such
receipt, then such Bank receiving such excess payment shall purchase for cash
without recourse or warranty from the other Banks an interest in the Obligations
of the respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all of the Banks in such amount; provided, that if
--------
all or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 13.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
13.07 Calculations; Computations. (a) The financial statements to
--------------------------
be furnished to the Banks pursuant hereto shall be made and prepared in
accordance with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise disclosed in writing
by the Borrower to the Banks); provided, that except as otherwise
--------
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specifically provided herein, all computations determining compliance with
Sections 4.02, 8.14 and 9, including definitions used therein shall, in each
case, utilize accounting principles and policies in effect at the time of the
preparation of, and in conformity with those used to prepare, the December 31,
1998 financial statements of the Borrower delivered to the Banks pursuant to
Section 7.10(b); provided further, that (i) to the extent expressly required
-------- -------
pursuant to the provisions of this Agreement, certain calculations shall be made
on a Pro Forma Basis, and (ii) to the extent compliance with any of Sections
--- -----
9.08 or 9.09 would include periods occurring prior to the Initial Borrowing
Date, such calculation shall be adjusted on a Pro Forma Basis to give effect to
--- -----
the Transaction as if same had occurred on the first day of the respective
period.
(b) All computations of interest and Fees hereunder shall be made on
the actual number of days elapsed over a year of 360 days.
13.08 Governing Law; Submission to Jurisdiction; Venue. (a) THIS
------------------------------------------------
AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. Any legal action or proceeding
with respect to this Agreement or any other Credit Document may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement, the
Borrower hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts. The
Borrower hereby irrevocably designates, appoints and empowers CT Corporation
System, with offices on the date hereof at 1633 Broadway, New York, New York
10019 as its designee, appointee and agent to receive, accept and acknowledge
for and on its behalf, and in respect of its property, service of any and all
legal process, summons, notices and documents which may be served in any such
action or proceeding. If for any reason such designee, appointee and agent
shall cease to be available to act as such, the Borrower agrees to designate a
new designee, appointee and agent in New York City on the terms and for the
purposes of this provision satisfactory to the Administrative Agent under this
Agreement. The Borrower hereby further irrevocably waives any claim that any
such courts lack jurisdiction over the Borrower, and agrees not to plead or
claim, in any legal action or proceeding with respect to this Agreement or any
other Credit Document brought in any of the aforesaid courts, that any such
court lacks jurisdiction over the Borrower. The Borrower further irrevocably
consents to the service of process in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower, at its address for notices pursuant to Section 13.03, such service
to become effective 30 days after such mailing. The Borrower hereby irrevocably
waives any objection to such service of process and further irrevocably waives
and agrees not to plead or claim in any action or proceeding commenced hereunder
or under any other Credit Document that service of process was in any way
invalid or ineffective. Nothing herein shall affect the right of any Agent, the
Collateral Agent, any Bank or the holder of any Note to serve process in any
other manner permitted by law or to commence legal proceedings or otherwise
proceed against any Credit Party in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Credit Document brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or
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claim in any such court that any such action or proceeding brought in any such
court has been brought in an inconvenient forum.
13.09 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A complete set of
counterparts executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
13.10 Effectiveness. This Agreement shall become effective on the
-------------
date (the "Effective Date") on which the Borrower, the Administrative Agent, the
Documentation Agent, the Syndication Agent and each of the Banks shall have
signed a counterpart hereof (whether the same or different counterparts) and
shall have delivered the same (including by way of facsimile transmission) to
the Administrative Agent at the Notice Office or at the office of Agents'
counsel. The Administrative Agent will give the Borrower and each Bank prompt
written notice of the occurrence of the Effective Date.
13.11 Headings Descriptive. The headings of the several sections and
--------------------
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
13.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any
-------------------------
other Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
--------
shall, without the consent of each Bank (with Obligations being directly
affected thereby in the case of the following clause (i)), (i) extend the final
scheduled maturity of any Loan or Note or extend the stated maturity of any
Letter of Credit beyond the Revolving Loan Maturity Date, or reduce the rate or
extend the time of payment of interest or Fees thereon, or reduce the principal
amount thereof (it being understood that any amendment or modification to the
financial definitions in this Agreement shall not constitute a reduction in any
rate of interest or fees for purposes of this clause (i), notwithstanding the
fact that such amendment or modification actually results in such a reduction,
provided that such amendment or modification was not made for the purpose of
- --------
reducing the interest rate or Fees hereunder, (ii) release all or substantially
all of the Collateral (except as expressly provided in the Security Documents)
under all the Security Documents, (iii) amend, modify or waive any provision of
this Section 13.12 (except for technical amendments with respect to additional
extensions of credit pursuant to this Agreement which afford the protections to
such additional extensions of credit of the type provided to the Tranche A Term
Loans and the Revolving Loan Commitments on the Effective Date), (iv) reduce the
percentage specified in the definition of Required Banks (it being understood
that, with the consent of the Required Banks, additional extensions of credit
pursuant to this Agreement may be included in the determination of the Required
Banks on substantially the same basis as the extensions of Tranche A Term Loans
and Revolving Loan Commitments are included on the Effective Date), (v) consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement or (vi) amend or modify Section 13.06(a);
provided further, that no such change, waiver, discharge or termination shall
- ----------------
(v) increase the Commitments of any Bank over the amount thereof then in effect
without the
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<PAGE>
consent of such Bank (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Commitment shall not constitute an increase of the
Commitment of any Bank, and that an increase in the available portion of any
Commitment of any Bank shall not constitute an increase in the Commitment of
such Bank), (w) without the consent of each Letter of Issuer, amend, modify or
waive any provision of Section 2 or alter its rights or obligations with respect
to Letters of Credit, (x) without the consent of BTCo, alter its rights or
obligations with respect to Swingline Loans, (y) without the consent of the
Administrative Agent, the Documentation Agent or the Syndication Agent, amend,
modify or waive any provision of Section 12 as same applies to the
Administrative Agent, the Documentation Agent or the Syndication Agent, as the
case may be, or any other provision as same relates to the rights or obligations
of the Administrative Agent, the Documentation Agent or the Syndication Agent,
as the case may be, and (z) without the consent of the Collateral Agent, amend,
modify or waive any provision relating to the rights or obligations of the
Collateral Agent.
(b) If, in connection with any proposed change, waiver, discharge or
termination of or to any of the provisions of this Agreement as contemplated by
clauses (i) through (v), inclusive, of the first proviso to Section 13.12(a),
the consent of the Required Banks is obtained but the consent of one or more of
such other Banks whose consent is required is not obtained, then the Borrower
shall have the right, so long as all non-consenting Banks whose individual
consent is required are treated as described in either clause (A) or (B) below,
to either (A) replace each such non-consenting Bank or Banks (or, at the option
of the Borrower if the respective Bank's consent is required with respect to
less than all Tranches of Loans (or related Commitments), to replace only the
Revolving Loan Commitments and/or Loans of the respective non-consenting Bank
which gave rise to the need to obtain such Bank's individual consent) with one
or more Replacement Banks pursuant to Section 1.13 so long as at the time of
such replacement, each such Replacement Bank consents to the proposed change,
waiver, discharge or termination or (B) terminate such non-consenting Bank's
Revolving Loan Commitment (if such Bank's consent is required as a result of its
Revolving Loan Commitment) and/or repay each Tranche of outstanding Loans of
such Bank which gave rise to the need to obtain such Bank's consent and/or cash
collateralize its applicable RL Percentage of the Letter of Credit of
Outstandings, in accordance with Sections 3.02(b) and/or 4.01(b), provided that,
--------
unless the Commitments which are terminated and Loans which are repaid pursuant
to preceding clause (B) are immediately replaced in full at such time through
the addition of new Banks or the increase of the Commitments and/or outstanding
Loans of existing Banks (who in each case must specifically consent thereto),
then in the case of any action pursuant to preceding clause (B), the Required
Banks (determined after giving effect to the proposed action) shall specifically
consent thereto, provided further, that the Borrower shall not have the right to
----------------
replace a Bank, terminate its Commitment or repay its Loans solely as a result
of the exercise of such Bank's rights (and the withholding of any required
consent by such Bank) pursuant to the second proviso to Section 13.12(a).
(c) Notwithstanding anything to the contrary contained in clause (a)
above of this Section 13.12, the Borrower, the Administrative Agent and each ALC
Bank may, in accordance with the provisions of Section 1.14, enter into an
Additional Loan Commitment Agreement, provided that after the execution and
--------
delivery by the Borrower, the Administrative Agent and each such ALC Bank of
such Additional Loan Commitment Agreement, such
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<PAGE>
Additional Loan Commitment Agreement may thereafter only be modified in
accordance with the requirements of clause (a) above of this Section 13.12.
13.13 Survival. All indemnities set forth herein including, without
--------
limitation, in Sections 1.10, 1.11, 2.05, 4.04, 12.07 and 13.01, shall, subject
to the provisions of Section 13.18 (to the extent applicable), survive the
execution and delivery of this Agreement and the making and repayment of the
Loans.
13.14 Domicile of Loans and Commitments. Each Bank may transfer and
---------------------------------
carry its Loans and/or Commitments at, to or for the account of any branch
office, subsidiary or affiliate of such Bank; provided, that the Borrower shall
--------
not be responsible for costs arising under Section 1.10, 1.11, 2.05 or 4.04
resulting from any such transfer (other than a transfer pursuant to Section
1.12) to the extent such costs would not otherwise be applicable to such Bank in
the absence of such transfer.
13.15 Confidentiality. (a) Each of the Banks agrees that it will
---------------
use its reasonable efforts not to disclose without the prior consent of the
Borrower (other than to its directors, employees, auditors, counsel or other
professional advisors, to affiliates or to another Bank if the Bank or such
Bank's holding or parent company in its sole discretion determines that any such
party should have access to such information) any information with respect to
the Borrower or any of its Subsidiaries which is furnished pursuant to this
Agreement; provided, that any Bank may disclose any such information (a) as has
--------
become generally available to the public, (b) as may be required or appropriate
(x) in any report, statement or testimony submitted to any municipal, state or
Federal regulatory body having or claiming to have jurisdiction over such Bank
or to the Federal Reserve Board or the Federal Deposit Insurance Corporation or
similar organizations (whether in the United States or elsewhere) or their
successors or (y) in connection with any request or requirement of any such
regulatory body, (c) as may be required or appropriate in response to any
summons or subpoena or in connection with any litigation, (d) to comply with any
law, order, regulation or ruling applicable to such Bank, and (e) to any
prospective transferee in connection with any contemplated transfer of any of
the Notes or any interest therein by such Bank; provided, that such prospective
--------
transferee agrees to be bound by this Section 13.15 to the same extent as such
Bank.
(b) The Borrower hereby acknowledges and agrees that each Bank may
share with any of its affiliates or its investment advisors any information
related to the Borrower or any of its Subsidiaries (including, without
limitation, any nonpublic customer information regarding the creditworthiness of
such entities), provided that such Persons shall be subject to the provisions of
--------
this Section 13.15 to the same extent as such Bank.
13.16 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
--------------------
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
13.17 Register. The Borrower hereby designates the Administrative
--------
Agent to serve as the Borrower's agent, solely for purposes of this Section
13.17, to maintain a register
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<PAGE>
(the "Register") on which it will record the Commitments from time to time of
each of the Banks, the Loans made by each of the Banks and each repayment in
respect of the principal amount of the Loans of each Bank. Failure to make any
such recordation, or any error in such recordation, shall not affect the
Borrower's obligations in respect of such Loans. With respect to any Bank, the
transfer of any Commitment of such Bank and the rights to the principal of, and
interest on, any Loan shall not be effective until such transfer is recorded on
the Register maintained by the Administrative Agent with respect to ownership of
such Commitment and Loans and prior to such recordation all amounts owing to the
transferor with respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or part of any
Commitment and Loans shall be recorded by the Administrative Agent on the
Register only upon the acceptance by the Administrative Agent of a properly
executed and delivered Assignment and Assumption Agreement pursuant to Section
13.04(b). Coincident with the delivery of such an Assignment and Assumption
Agreement to the Administrative Agent for acceptance and registration of
assignment or transfer of all or part of a Commitment and/or Loan, or as soon
thereafter as practicable, the assigning or transferor Bank shall surrender the
Note evidencing such Commitment and/or Loan, and thereupon one or more new Notes
in the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank at the request of any such Bank. The
registration of any provision of Additional Loan Commitments pursuant to Section
1.14 shall be recorded by the Administrative Agent on the Register only upon the
acceptance of the Administrative Agent of a properly executed and delivered
Additional Loan Commitment Agreement. Coincident with the delivery of such
Additional Loan Commitment Agreement for acceptance and registration of the
provision of an Additional Loan Commitment, or as soon thereafter as
practicable, new Notes shall be issued to the respective ALC Bank at the request
of such ALC Bank. The Borrower agrees to indemnify the Administrative Agent from
and against any and all losses, claims, damages and liabilities of whatsoever
nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 13.17.
13.18 Limitation on Additional Amounts, etc. Notwithstanding
--------------------------------------
anything to the contrary contained in Section 1.10, 1.11, 2.05 or 4.04 of this
Agreement, unless a Bank gives notice to the Borrower that it is obligated to
pay an amount under such Section within six months after the later of (x) the
date the Bank incurs the respective increased costs, Taxes, loss, expense or
liability, reduction in amounts received or receivable or reduction in return on
capital or (y) the date such Bank has actual knowledge of its incurrence of the
respective increased costs, Taxes, loss, expense or liability, reductions in
amounts received or receivable or reduction in return on capital, then such Bank
shall only be entitled to be compensated for such amount by the Borrower
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be, to the
extent of the costs, Taxes, loss, expense or liability, reduction in amounts
received or receivable or reduction in return on capital that are incurred or
suffered on or after the date which occurs six months prior to such Bank giving
notice to the Borrower that it is obligated to pay the respective amounts
pursuant to said Section 1.10, 1.11, 2.05 or 4.04, as the case may be. This
Section 13.18 shall have no applicability to any Section of this Agreement other
than said Sections 1.10, 1.11, 2.05 and 4.04.
13.19 Certain Agreements with Respect to the Convertible Subordinated
---------------------------------------------------------------
Notes. The Borrower hereby (A) represents and warrants that (i) $193,000000 of
- -----
Tranche A Term Loans, Revolving Loans, Swingline Loans and Letters of Credit in
the aggregate incurred
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<PAGE>
pursuant to the Total Commitment as in effect on the Initial Borrowing Date may
be incurred under this Agreement on the Initial Borrowing Date in reliance on
the exception in clause (x) of Section 1007 of the Convertible Subordinated
Notes Indenture and clause (ii) of the definition of "Permitted Indebtedness"
contained in the Senior Subordinated Notes Indenture as same is used in Section
4.04 thereof and (B) agrees it will not take any position contrary to the
representations and warranties set forth in preceding clause (A). In addition,
the Borrower (A) acknowledges and agrees that it will not be permitted to (i)
incur any Tranche B Term Loans on any Tranche B Term Loan Commitment Date unless
such Tranche B Term Loans may be incurred in reliance on the exceptions
contained in Section 1007 of the Convertible Subordinated Notes Indenture and
the proviso to Section 4.04 of the Senior Subordinated Notes Indenture and/or
clause (ii) (or the other relevant clauses) of the definition of "Permitted
Indebtedness" contained in the Senior Subordinated Notes Indenture or (ii) incur
any Revolving Loans pursuant to any provision of Additional Revolving Loan
Commitments pursuant to Section 1.14 unless such additional extensions of credit
are permitted to be incurred in reliance on the exceptions contained in Section
1007 of the Convertible Subordinated Notes Indenture and the proviso to Section
4.04 of the Senior Subordinated Notes Indenture and/or clause (ii) (or the other
relevant clauses) of the definition of "Permitted Indebtedness" contained in the
Senior Subordinated Notes Indenture and (B) covenants and agrees that it will
take, and will cause each of its Subsidiaries to take, all such actions as may
be necessary so as to ensure that all Indebtedness of the Borrower (including,
without limitation, any Tranche B Term Loans incurred on any Tranche B Term Loan
Commitment Date and any Revolving Loans incurred as a result of any provision of
Additional Revolving Loan Commitments pursuant to Section 1.14) incurred under
this Agreement and the other Credit Documents shall always be permitted to be
incurred under Section 1007 of the Convertible Subordinated Notes Indenture and
Section 4.04 of the Senior Subordinated Notes Indenture.
13.20 Post-Closing Actions. Notwithstanding anything to the contrary
--------------------
contained in this Agreement or the other Credit Documents, the parties hereto
acknowledge and agree that:
(a) Security Document Filings. Form UCC-1 financing statements
-------------------------
delivered by the Borrower to the Collateral Agent on the Initial Borrowing
Date shall be filed in the appropriate governmental office within 10 days
following the Initial Borrowing Date.
(b) UCC-3 Termination Statements. Within 30 days following the
----------------------------
Initial Borrowing Date (or such later date as shall have been determined by
the Administrative Agent in its sole discretion), the Administrative Agent
shall have received Form UCC-3 termination statements in respect of the
Liens listed on Part B of Schedule IX hereto and same shall be filed in the
appropriate governmental office within 45 days following the Initial
Borrowing Date (or such later date as shall have been determined by the
Administrative Agent in its sole discretion).
(c) Opinions of Local Counsel. Within 30 days following the Initial
-------------------------
Borrowing Date, the Collateral Agent shall have received local counsel
opinions, addressed to each Agent, the Collateral Agent and each of the
Banks from local counsel to Credit Parties and/or the Agents reasonably
satisfactory to the Collateral Agent, which opinions (x) shall cover the
perfection and enforceability as against third parties of the security
interests granted pursuant to the Security Documents and such other matters
relating to
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<PAGE>
the transactions contemplated herein as the Collateral Agent may reasonably
request and (y) shall be in form and substance reasonably satisfactory to
the Collateral Agent.
All provisions of this Credit Agreement and the other Credit Documents
(including, without limitation, all conditions precedent, representations,
warranties, covenants, events of default and other agreements herein and
therein) shall be deemed modified to the extent necessary to effect the
foregoing (and to permit the taking of the actions described above within the
time periods required above, rather than as otherwise provided in the Credit
Documents); provided that (x) to the extent any representation and warranty
--------
would not be true because the foregoing actions were not taken on the Initial
Borrowing Date the respective representation and warranty shall be required to
be true and correct in all material respects at the time the respective action
is taken (or was required to be taken) in accordance with the foregoing
provisions of this Section 13.20 and (y) all representations and warranties
relating to the Collateral Documents shall be required to be true immediately
after the actions required to be taken by Section 13.20 have been taken (or were
required to be taken). The acceptance of the benefits of the Loans shall
constitute a representation, warranty and covenant by the Borrower to each of
the Banks that the actions required pursuant to this Section 13.20 will be, or
have been, taken within the relevant time periods referred to in this Section
13.20 and that, at such time, all representations and warranties contained in
this Credit Agreement and the other Credit Documents shall then be true and
correct without any modification pursuant to this Section 13.20. The parties
hereto acknowledge and agree that the failure to take any of the actions
required above, within the relevant time periods required above, shall give rise
to an immediate Event of Default pursuant to this Agreement.
* * * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date first
above written.
Address:
- -------
800 Connecticut Avenue, NW BUILDING ONE SERVICES CORP.
Suite 111
Washington, DC 20006
Telephone No.: By:______________________________
Facsimile No.: Title:
Attention: Tim Clayton
and Joe Ivey
BANKERS TRUST COMPANY, Individually and as
Administrative Agent
By:______________________________
Title:
85 Broad Street GOLDMAN SACHS CREDIT
New York, NY 10004 PARTNERS L.P., Individually
Telephone No.: (212) 902-5899 and as Documentation Agent
Facsimile No.: (212) 357-0932
Attention: Quinn Morgan
By:______________________________
Title:
388 Greenwich Street SALOMON SMITH BARNEY INC., as
New York, NY 10013 Syndication Agent
Telephone No.: (212) 816-7092
Facsimile No.: (212) 816-7092 By:______________________________
Attention: Arron Schwartz Title:
399 Park Avenue CITICORP USA, INC.
New York, NY 10043
Telephone No.: (212) 559-1463
Facsimile No.: (212) 793-3963
Attention: Mark Floyd By:______________________________
Title:
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<PAGE>
BANKBOSTON, N.A.
By:
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By:
---------------------------------
Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By:
---------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
---------------------------------
Name:
Title:
HELLER FINANCIAL, INC.
By:
---------------------------------
Name:
Title:
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<PAGE>
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
By: Oak Hill Securities MGP, Inc.,
its General Partner
By:
---------------------------------
Name:
Title:
ORIX CREDIT ALLIANCE, INC.
By:
---------------------------------
Name:
Title:
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By:
---------------------------------
Name:
Title:
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