SECURITIES AND EXCHANGE COMMISSION{PRIVATE }
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 7, 1997
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1-3919 37-0364250
E OR OTHER (COMMISSION FILE NUMBER) (IRS EMPLOYER
SDICTION OF IDENTIFICATION
RPORATION) NUMBER)
LBJ FREEWAY, SUITE 1740, THREE LINCOLN CENTRE, DALLAS, TX 75240-2697
ESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
TRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (972) 458-0028
ITEM 5. OTHER EVENTS
On August 7, 1997, Keystone Consolidated Industries, Inc. (the "Company")
announced that it had completed a private placement (the "Private Placement") of
$100 million principal amount of 9 5/8% senior secured notes maturing in August
2007 (the "Notes"). The Notes were issued pursuant to an Indenture dated August
7, 1997 between the Company, as Issuer, and The Bank of New York, Trustee. The
holders of the Notes have certain registration rights under the Securities Act
of 1933, as amended, pursuant to the terms of a Registration Rights Agreement
dated August 7, 1997 among the Company, Wasserstein Perella Securities, Inc. and
PaineWebber Incorporated. Copies of the Indenture and the Registration Rights
Agreement are filed as exhibits hereto, and a copy of the press release issued
by the Company announcing the completion of the Private Placement is filed as an
exhibit hereto and is incorporated herein by this reference.
ITEM 7. EXHIBITS
The following exhibits are filed herewith by direct transmission via Edgar:
4.1 Indenture dated August 7, 1997 between Keystone Consolidated
Industries, Inc. and The Bank of New York
99.1 Registration Rights Agreement dated August 7, 1997 among Keystone
Consolidated Industries, Inc. and Wasserstein Perella Securities, Inc.
and PaineWebber Incorporated
99.2 Press Release dated August 7, 1997
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
By:_____________________________________
Harold M. Curdy
Vice President - Finance/Treasurer
Dated: August 7, 1997
EXHIBIT INDEX
SEQUENTIAL
NO. DESCRIPTION PAGE NUMBER
4.1 Indenture dated August 7, 1997 between Keystone Consolidated
Industries, Inc. and The Bank of New York
99.1 Registration Rights Agreement dated August 7, 1997 among
Keystone Consolidated Industries, Inc. and Wasserstein
Perella Securities, Inc. and PaineWebber Incorporated
99.2 Press Release dated August 7, 1997
Execution Copy
$100,000,000
9 5/8% Senior Secured Notes due 2007
______________________________
INDENTURE
Dated as of August 7, 1997
______________________________
Between
Keystone Consolidated Industries, Inc.,
as Issuer,
and
The Bank of New York,
as Trustee
CROSS REFERENCE TABLE
Indentur
e
Trust Indenture Act Section
Section
310(a)(1)....................................... 7.10
(a)(2)......................................... 7.10
(a)(3)......................................... N.A.
(a)(4)......................................... N.A.
(a)(5) ........................................ 7.10
(b)............................................ 7.3;
7.8;
7.10
(c)............................................ N.A.
311(a) ......................................... 7.11
(b)............................................ 7.11
(c)............................................ N.A.
312(a) ......................................... 2.5
(b)............................................ 12.3
(c)............................................ 12.3
313(a) ......................................... 7.6
(b)(1)......................................... N.A.
(b)(2)......................................... 7.6
(c)............................................ 7.6;
12.2
314 (a) ........................................ 4.3;
4.4;
12.2
(b)............................................ 10.2
(c)(1)......................................... 12.4
(c)(2)......................................... 12.4
(c)(3)......................................... 12.4
(d)............................................ 10.3
(e)............................................ 12.5
(f)............................................ N.A.
315(a) ......................................... 7.1(b)
(b)............................................ 7.5;
12.2
(c)............................................ 7.1
(d)............................................ 7.1
(e)............................................ 6.12
316(a)(last sentence) .......................... 2.9
(a)(1)(A)...................................... 6.5
(a)(1)(B)...................................... 6.4
(a)(2)......................................... N.A.
(b)............................................ 6.7
(c)............................................ N.A.
317(a)(1) ...................................... 6.8
(a)(2)......................................... 6.10
(b)............................................ 2.4
318(a) ......................................... 12.1
318(b) ......................................... N.A.
318(c) ......................................... 12.1
N.A. means not applicable.
TABLE OF CONTENTS**
Page
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE...........1
Section 1.1. Definitions. ...............................1
Section 1.2. Other Definitions. ........................33
Section 1.3. Incorporation by Reference of Trust
Indenture Act. ............................33
Section 1.4. Rules of Construction. ....................34
Section 1.5. Acts of Holders. ..........................34
ARTICLE II. THE NOTES.........................................35
Section 2.1. Form and Dating. ..........................35
Section 2.2. Execution and Authentication. .............38
Section 2.3. Registrar and Paying Agent; Depositary. ...39
Section 2.4. Paying Agents To Hold Money in Trust. .....39
Section 2.5. Holder Lists. .............................40
Section 2.6. Transfer and Exchange. ....................40
Section 2.7. Replacement Notes. ........................54
Section 2.8. Outstanding Notes. ........................55
Section 2.9. Treasury Notes. ...........................55
Section 2.10. Temporary Notes. .........................55
Section 2.11. Cancellation. ............................56
Section 2.12. Defaulted Interest. ......................56
Section 2.13. Persons Deemed Owners. ...................56
Section 2.14. CUSIP Numbers. ...........................57
Section 2.15. Designation. .............................57
** This Table on Contents shall not, for any purpose, be deemed a part of the
Indenture.
ARTICLE III. REDEMPTION AND REPURCHASE.........................57
Section 3.1. Notices to Trustee. .......................57
Section 3.2. Selection of Notes. .......................58
Section 3.3. Notice of Optional Redemption. ............59
Section 3.4. Effect of Notice of Redemption. ...........60
Section 3.5. Deposit of Redemption Price or Purchase
Price. ....................................60
Section 3.6. Notes Redeemed or Repurchased in Part. ....61
Section 3.7. Optional Redemption. ......................61
Section 3.8. Repurchase upon Change of Control Offer. ..62
Section 3.9. Repurchase upon Application of Available
Amount. ...................................64
ARTICLE IV. COVENANTS.........................................67
Section 4.1. Payment of Principal and Interest. ........67
Section 4.2. Maintenance of Office or Agency. ..........67
Section 4.3. Reports. ..................................68
Section 4.4. Compliance Certificate. ...................69
Section 4.5. Taxes. ....................................70
Section 4.6. Stay, Extension and Usury Laws. ...........70
Section 4.7. Restricted Payments. ......................70
Section 4.8. Dividend and Other Payment Restrictions
Affecting Subsidiaries. ...................74
Section 4.9. Incurrence of Indebtedness and Issuance of
Preferred Stock. ..........................75
Section 4.10. Transactions with Affiliates. .............76
Section 4.11. Liens. ....................................77
Section 4.12. Continued Existence. ......................77
Section 4.13. Insurance Matters. ........................77
Section 4.14. Offer To Repurchase upon Change of Control.78
Section 4.15. Payments for Consent. .....................78
Section 4.16. Asset Sales. ..............................79
Section 4.17. Limitation on Sale/leaseback Transactions. 81
Section 4.18. Future Guarantees. ........................82
Section 4.19. Issuance and Sale of Capital Stock of
Subsidiaries ..............................82
Section 4.20. Impairment of Security Interest. ..........83
Section 4.21. Amendment to Security Documents. ..........83
Section 4.22. Inspection and Confidentiality. ...........83
ARTICLE V. SUCCESSORS..........................................84
Section 5.1. Merger, Consolidation, or Sale of Assets. .84
Section 5.2. Successor Corporation Substituted. ........85
ARTICLE VI. DEFAULTS AND REMEDIES..............................85
Section 6.1. Events of Default. ........................85
Section 6.2. Acceleration. .............................87
Section 6.3. Other Remedies. ...........................88
Section 6.4. Waiver of Past Defaults; Recission of
Acceleration ..............................88
Section 6.5. Control by Majority. ......................89
Section 6.6. Limitation on Suits. ......................90
Section 6.7. Rights of Holders of Notes To Receive
Payment. ..................................90
Section 6.8. Collection Suit by Trustee. ...............91
Section 6.9. Event of Default To Avoid Premium. ........91
Section 6.10. Trustee May File Proofs of Claim. ........91
Section 6.11. Priorities. ..............................92
Section 6.12. Undertaking for Costs. ...................93
ARTICLE VII. TRUSTEE...........................................93
Section 7.1. Duties of Trustee. ........................93
Section 7.2. Rights of Trustee. ........................95
Section 7.3. Individual Rights Of Trustee. .............96
Section 7.4. Trustee's Disclaimer. .....................96
Section 7.5. Notice of Defaults. .......................96
Section 7.6. Reports by Trustee to Holders of the Notes.96
Section 7.7. Compensation, Reimbursement and Indemnity. 97
Section 7.8. Replacement of Trustee. ...................99
Section 7.9. Successor Trustee by Merger, Etc. ........100
Section 7.10. Eligibility; Disqualification. ..........100
Section 7.11. Preferential Collection of Claims
Against Company. ........................100
ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE........101
Section 8.1. Option To Effect Legal Defeasance or Covenant
Defeasance. ..............................101
Section 8.2. Legal Defeasance and Discharge. ..........101
Section 8.3. Covenant Defeasance. .....................102
Section 8.4. Conditions to Legal or Covenant Defeasance.102
Section 8.5. Deposited Money and U.S. Government
Securities To Be Held in Trust; Other
Miscellaneous Provisions. ................104
Section 8.6. Repayment to the Company. ................105
Section 8.7. Reinstatement. ...........................106
ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER..................106
Section 9.1. Without Consent of Holders of Notes. .....106
Section 9.2. With Consent of Holders of Notes. ........107
Section 9.3. Compliance with Trust Indenture Act. .....109
Section 9.4. Revocation and Effect of Consents. .......109
Section 9.5. Notation on or Exchange of Notes. ........109
Section 9.6. Trustee To Sign Amendments, Etc. .........110
ARTICLE X. SECURITY DOCUMENTS.................................110
Section 10.1. Collateral and Security Documents. ......110
Section 10.2. Recording; Priority; Opinions, Etc. .....111
Section 10.3. Release of Collateral. ..................113
Section 10.4. Disposition of Collateral Without Release.115
Section 10.5. Eminent Domain and Other Government
Takings. ................................116
Section 10.6. Trust Indenture Act Requirements. .......119
Section 10.7. Suits to Protect Collateral. ............119
Section 10.8. Purchaser Protected. ....................120
Section 10.9. Powers Exercisable by Receiver or Trustee.120
Section 10.10. Determinations Relating to Collateral. .120
Section 10.11. Form and Sufficiency of Release. .......121
Section 10.12. Possession and Use of Collateral. ......121
Section 10.13. Disposition of Obligations Received. ...121
Section 10.14. Release upon Termination of the Company's
Obligations. ................................122
ARTICLE XI. APPLICATION OF TRUST MONEYS.......................122
Section 11.1. "Trust Moneys" Defined. .................122
Section 11.2. Withdrawals of Insurance Proceeds and
Condemnation Awards. ....................124
Section 11.3. Withdrawal of Trust Moneys on Basis of
Retirement of Notes. ....................128
Section 11.4. Withdrawal of Trust Moneys for
Reinvestment. ...........................130
Section 11.5. Powers Exercisable Notwithstanding
Default or Event of Default. ............132
Section 11.6. Powers Exercisable by Trustee or Receiver.133
Section 11.7. Investment of Trust Moneys. .............133
ARTICLE XII. MISCELLANEOUS....................................134
Section 12.1. Trust Indenture Act Controls. ...........134
Section 12.2. Notices. ................................134
Section 12.3. Communication by Holders of Notes with
Other Holders of Notes. .................135
Section 12.4. Certificate and Opinion as to Conditions
Precedent. ..............................136
Section 12.5. Statements Required in Certificate or
Opinion. ................................136
Section 12.6. Rules by Trustee and Agents. ............137
Section 12.7. No Personal Liability of Directors,
Officers, Employees and Stockholders. ...137
Section 12.8. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial. ...................137
Section 12.9. No Adverse Interpretation of Other
Agreements. .............................138
Section 12.10. Successors. ............................138
Section 12.11. Severability. ...........................138
Section 12.12. Counterpart Originals. .................138
Section 12.13. Table of Contents, Headings, Etc. ......138
Section 12.14. Qualification of Indenture. ............138
Section 12.15. Additional Rights of Holders of Registrable
Notes. .................................139
EXHIBITS
Exhibit A-1..........................Form of Senior Secured Note
Exhibit A-2............Form of Regulation S Temporary Global Note
Exhibit A-3.......................Form of New Senior Secured Note
Exhibit B-1Form of Certificate For Registration of Transfer From
Restricted Global Note to Regulation S Global Note
Exhibit B-2Form of Certificate For Registration of Transfer From
Regulation S Global Note to Restricted Global Note
Exhibit B-3Form of Certificate For Exchange or Registration of Transfer
of Certificated Notes
Exhibit B-4Form of Certificate For Exchange of Restricted Global Note or
Regulation S Permanent Global Note to Certificated Note
Exhibit B-5Form of Certificate For Registration of Transfer From
Accredited Restricted Note to QIB Restricted Note
Exhibit B-6Form of Certificate For Registration of Transfer From QIB
Restricted Note to Accredited Restricted Note
INDENTURE
INDENTURE, dated as of August 7, 1997, between Keystone Consolidated Industries,
Inc., a Delaware corporation (the "Company"), and The Bank of New York, a New
York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders (as defined below) of the Company's 9
5/8% Senior Secured Notes due 2007:
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. DEFINITIONS.
"Accredited Investor" means an accredited investor as defined in
Rule 501 under Regulation D of the Securities Act.
"Accredited Restricted Note" means a Note initially bearing the
CUSIP number 493422 AB 5 through which Accredited Investors hold a
beneficial interest in the Restricted Global Note, or any replacement
Note issued therefor.
"Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other
Person merges with or into or consolidates with or becomes a
Subsidiary of such specified Person, and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
"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 purposes of
this definition, "control" (including, with correlative meanings, the
terms "controlling," "controlled by" and "under common control with"),
as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction
of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided
that (a) beneficial ownership of 10% or more of the voting securities
of a Person shall be presumed to be control, which presumption may be
rebutted by evidence to the contrary and (b) each Permitted Holder
shall be deemed to be an Affiliate of the Company and its
Subsidiaries.
"Agent" means any Registrar, Paying Agent or co-registrar.
"Agent Member" means a member of, or a participant in, the
Depositary.
"Amended Credit Facility" means the Amended and Restated
Revolving Loan and Security Agreement, dated as of December 29, 1995,
by and between Congress Financial Corporation (Central) and the
Company, as amended by the First Amendment thereto, dated as of
September 27, 1996 and the Second Amendment thereto, to be dated as of
the Issue Date, including any related collateral documents,
instruments and agreements executed in connection therewith, and in
each case as amended, modified, renewed, refunded, replaced or
refinanced from time to time (provided that such amendment,
modification, renewal, refunding, replacement or refinancing (a) does
not result in an increase in the $55 million (less any borrowings
outstanding under the Amended DeSoto Credit Facility) in maximum
borrowings available under the Amended Credit Facility as in effect on
the Issue Date and (b) contains no encumbrance or restrictions any
more restrictive than any encumbrance or restriction contained in the
Amended Credit Facility as in effect on the Issue Date).
"Amended DeSoto Credit Facility" means the Revolving Loan and
Security Agreement, dated as of September 27, 1996, by and between
Congress Financial Corporation (Central) and DeSoto (f/k/a DSO
Acquisition Corporation), as amended by the First Amendment thereto,
to be dated the Issue Date, including any related collateral
documents, instruments and agreements executed in connection
therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced from time to time (provided that such
amendment, modification, renewal, refunding, replacement or
refinancing (a) does not result in an increase in the $10 million
(less any borrowings in excess of $45 million outstanding under the
Amended Credit Facility) in maximum borrowings available under the
Amended DeSoto Credit Facility as in effect on the Issue Date and (b)
contains no encumbrance or restrictions any more restrictive than any
encumbrance or restriction contained in the Amended DeSoto Credit
Facility as in effect on the Issue Date).
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial interests in a Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that are applicable
to such transfer or exchange.
"Appraiser" means a Person who in the course of its business
appraises property and who is a member in good standing of the
American Institute of Real Estate Appraisers, recognized and licensed
to do business in the jurisdiction where the applicable Real Property
is located.
"Asset Sale" means (A) the sale, lease, conveyance or other
disposition of any assets (including, without limitation, by way of a
Sale/leaseback) other than in the ordinary course of business
consistent with past practices (provided that the sale, lease,
conveyance or other disposition of all or substantially all of the
assets of the Company and its Subsidiaries taken as a whole will be
governed by the provisions of Section 3.8, 4.14 and/or 5.1 hereof, and
not by Section 3.9 or 4.16 hereof), or (B) the issue or sale by the
Company or any of its Subsidiaries of Equity Interests of any of the
Company's Subsidiaries, in the case of either clause (A) or (B),
whether in a single transaction or a series of related transactions
(a) that have a Fair Market Value in excess of $500,000 or (b) for net
proceeds in excess of $500,000. Notwithstanding the foregoing: (i) a
transfer of assets by the Company to a Wholly Owned Subsidiary or by a
Subsidiary to the Company or to a Wholly Owned Subsidiary, (ii) an
issuance of Equity Interests by a Subsidiary to the Company or to a
Wholly Owned Subsidiary, (iii) a Restricted Payment that is permitted
by Section 4.7 hereof, (iv) a disposition of inventory in the ordinary
course of business, and (v) a disposition of obsolete or worn out
property that is no longer useful in the conduct of business of the
Company and its Subsidiaries, in the ordinary course of business, in
each case, will not be deemed to be Asset Sales.
"Asset Sale Release Notice" has the meaning provided in Section
10.3.
"Attributable Debt" in respect of a Sale/leaseback means, at the
time of determination, the present value (discounted at the rate of
interest implicit in such transaction, determined in accordance with
GAAP) of the obligation of the lessee for net rental payments during
the remaining term of the lease included in such Sale/leaseback
(including any period for which such lease has been extended).
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal or state law for the relief of debtors.
"Board" means the Board of Directors of the Company or any duly
authorized committee of the Board of Directors.
"Book-Entry Note" means a Note represented by a Global Note and
registered in the name of the nominee of the Depositary.
"Business Day" means any day other than a Saturday, a Sunday or a
day on which banking institutions in the City of New York or at a
place of payment are authorized by law, regulation or executive order
to remain closed. If a payment date is not a Business Day at a place
of payment, payment may be made at that place on the next succeeding
day that is a Business Day, and no interest shall accrue for the
intervening period.
"Capital Expenditures" shall mean payments for any assets, or
improvements, replacements, substitutions or additions thereto, that
have a useful life of more than one year and which, in accordance with
GAAP consistently applied, are required to be capitalized (as opposed
to expensed in the period in which the payment occurred).
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a
capital lease that would at such time be required to be capitalized on
a balance sheet in accordance with GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or any other business
entity, any and all shares, interests, participations, rights or other
equivalents (however designated) in the equity of such association or
entity, (iii) in the case of a partnership, partnership interests
(whether general or limited), and (iv) any other interest or
participation that confers on a Person the right to receive a share of
the profits and losses of, or distributions of assets of, the issuing
Person.
"Cash Equivalents" means (i) securities issued or directly and
fully guaranteed or insured by the United States government or any
agency or instrumentality thereof having maturities of not more than
six months from the date of acquisition, (ii) demand and time
deposits, certificates of deposit and eurodollar time deposits with
maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any lender party to the
Amended Credit Facility or the Amended DeSoto Credit Facility or with
any domestic commercial bank having capital and surplus in excess of
$500.0 million and a Thompson Bank Watch Rating of "B" or better,
(iii) repurchase obligations with a term of not more than seven days
for underlying securities of the types described in clauses (i) and
(ii) above entered into with any financial institution meeting the
qualifications specified in clause (ii) above and (iv) commercial
paper rated at least P-1 by Moody's Investors Service, Inc. or at
least A-1 by Standard & Poor's Rating Group and in each case maturing
within six months after the date of acquisition.
"Cedel" shall mean Cedel Bank, societe anonyme.
"Certificated Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A-1, but do not include the
information called for by footnotes 1 and 3 thereof.
"Change of Control" means the occurrence of any of the following
events: (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
of the Permitted Holders, is or becomes the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a
person shall be deemed to have "beneficial ownership" of all
securities that such person has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total Voting Stock of
the Company; or (b) the Company consolidates with, or merges with or
into, another Person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of its assets
(determined on a consolidated basis) to any Person, or any Person
consolidates with, or merges with or into, the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock
of the Company is converted into or exchanged for cash, securities or
other property, other than (A) any such transaction where (i) the
outstanding Voting Stock of the Company is converted into or exchanged
for (1) Voting Stock (other than Disqualified Stock) of the surviving
or transferee corporation and/or (2) cash, securities and other
property in an amount which could be paid by the Company as a
Restricted Payment under the Indenture and (ii) the "beneficial
owners" of the Voting Stock of the Company immediately prior to such
transaction own, directly or indirectly, not less than a majority of
the Voting Stock of the surviving or transferee corporation
immediately after such transaction or (B) any such transaction as a
result of which any Person or group beneficially owns in the aggregate
a greater percentage than the Permitted Holders of the Voting Stock of
the surviving or transferee corporation immediately after such
transaction; or (c) during any consecutive two-year period,
individuals who at the beginning of such period constituted the Board
of the Company (together with any new directors whose election by the
Board of the Company or whose nomination for election by the
stockholders of the Company was approved by a vote of a majority of
the directors then still in office who were either directors at the
beginning of such period or whose nomination for election was
previously so approved) cease for any reason to constitute a majority
of the Board of the Company then in office (other than by action of
the Permitted Holders pursuant to the Company's by-laws as in effect
on the Issue Date, or otherwise); provided that, to the extent that
one or more regulatory approvals are required for one or more of the
events or circumstances described above to become effective under
applicable law, such events or circumstances shall be deemed to have
occurred at the time such approvals have been obtained and become
effective under applicable law.
"Collateral" means, collectively, all of the property and assets
(including, without limitation, Trust Moneys) that are from time to
time subject to, or purported to be subject to, the Lien of this
Indenture or the Security Documents.
"Collateral Account" has the meaning provided in Section 11.1.
"Collateral Agent" shall mean The Bank of New York, in its
capacity as collateral agent under the Security Documents, and any
successor thereto in such capacity.
"Collateral Proceeds" has the meaning provided in Section 4.16.
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means, with respect to any Person, Capital Stock
of such Person that does not rank prior, as to the payment of
dividends or as to the distribution of assets upon any voluntary or
involuntary liquidation, dissolution or winding up of such Person, to
shares of Capital Stock of any other class of such Person.
"Company" means Keystone Consolidated Industries, Inc., a
Delaware corporation, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and
thereafter means such successor Person.
"Consolidated Cash Flow" means, without duplication, with respect
to any Person for any period, the Consolidated Net Income of such
Person for such period plus, to the extent deducted in computing
Consolidated Net Income: (i) provision for taxes based on income or
profits of such Person and its Subsidiaries for such period, plus (ii)
Consolidated Interest Expense of such Person and its Subsidiaries for
such period, plus (iii) depreciation, depletion, amortization
(including amortization of goodwill and other intangibles but
excluding amortization of prepaid cash expenses that were paid in a
prior period) and other non-cash charges (excluding any such non-cash
charge to the extent that it represents an accrual of or reserve for
cash charges in any future period or amortization of a prepaid cash
expense that was paid in a prior period) of such Person and its
Subsidiaries for such period, in each case, on a consolidated basis
and determined in accordance with GAAP. Notwithstanding the
foregoing, the provision of taxes on the income or profits of, and the
depreciation, depletion and amortization and other non-cash charges
of, a Subsidiary of the referent Person shall be added to Consolidated
Net Income to compute Consolidated Cash Flow only to the extent (and
in same proportion) that the net income of such Subsidiary was
included in calculating the Consolidated Net Income of such Person and
only if a corresponding amount would be permitted at the date of
determination to be paid as a dividend to the Company by such
Subsidiary without prior governmental approval (that has not been
obtained), and without direct or indirect restriction pursuant to, the
terms of its charter and all agreements, instruments, judgments,
decrees, orders, statutes, rules and governmental regulations
applicable to that Subsidiary or its stockholders.
"Consolidated Cash Flow Ratio" of any Person means for any
twelve-month period the ratio of Consolidated Cash Flow of such Person
for such period to the sum of (a) Consolidated Interest Expense of
such Person for such period, plus (b) the annual interest expense
(including the amortization of debt discount) with respect to any
Indebtedness proposed to be incurred by such Person or its
Subsidiaries, minus (c) Consolidated Interest Expense of such Person
to the extent included in clause (a) with respect to any Indebtedness
that will no longer be outstanding as a result of the incurrence of
the Indebtedness proposed to be incurred, plus (d) the interest
expense (including the amortization of debt discount) with respect to
any other Indebtedness incurred by such Person or its Subsidiaries
since the end of such period to the extent not included in clause (a)
minus (e) Consolidated Interest Expense of such Person to the extent
included in clause (a) with respect to any Indebtedness that no longer
is outstanding as a result of the incurrence of Indebtedness referred
to in clause (d); provided, however, that in making such computation,
the Consolidated Interest Expense of such Person attributable to
interest on any proposed Indebtedness bearing a floating interest rate
shall be computed on a pro forma basis as if the rate in effect on the
date of computation had been the applicable rate for the entire
period; and provided, further that, in the event such Person or any of
its Subsidiaries has made Asset Sales or acquisitions of assets not in
the ordinary course of business (including acquisitions of other
Persons by merger, consolidation or purchase of Capital Stock) during
or after such period, such computation shall be made on a pro forma
basis as if the Asset Sales or acquisitions had taken place on the
first day of such period.
"Consolidated Interest Expense" for any Person and its
Subsidiaries for any period means the consolidated interest expense
calculated on a consolidated basis and determined in accordance with
GAAP, whether paid or accrued and whether or not capitalized
(including, without limitation, amortization of original issue
discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with
respect to Attributable Debt, commissions, discounts and other fees
and charges incurred in respect of letter of credit or bankers'
acceptance financings, and net payments (if any) pursuant to Hedging
Obligations but excluding fees and expenses related to letters of
credit).
"Consolidated Net Income" means, with respect to any Person for
any period, the aggregate of the net income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in
accordance with GAAP; provided that there shall be excluded therefrom,
without duplication: (i) all items classified as extraordinary,
unusual or nonrecurring gains (or losses); (ii) any net loss or net
income of any other Person (other than a Subsidiary of such Person),
except to the extent of the amount of dividends or other distributions
actually paid to such Person or its Subsidiaries by such other Person
during such period; (iii) the net income of any Person acquired by
such Person or a Subsidiary thereof in a pooling-of-interests
transaction for any period prior to the date of such acquisition; (iv)
gains (but not losses) in respect of Asset Sales by such Person or its
Subsidiaries; (v) the net income (but not net loss) of any Subsidiary
of such Person to the extent that the declaration or payment of
dividends or distributions to such Person is restricted by the terms
of its constituent documents or any agreement, instrument, contract,
judgment, order, decree, statute, rule, governmental regulation or
otherwise, except for any dividends or distributions actually paid by
such Subsidiary to such Person or another Subsidiary of such Person;
(vi) with regard to a Subsidiary of such Person (other than a Wholly
Owned Subsidiary of such Person), any aggregate net income (or loss)
in excess of such Person's pro rata share of such Subsidiary's net
income (or loss); and (vii) the cumulative effect of any change in
accounting principles.
"Consolidated Net Worth" means, with respect to any Person as of
any date, the consolidated stockholders' equity of such Person and its
consolidated Subsidiaries, as determined in accordance with GAAP,
less, to the extent included therein, all amounts, if any,
attributable to Disqualified Stock.
"Corporate Trust Office of the Trustee" shall be at the address
of the Trustee specified in Section 12.2 hereof or such other address
as to which the Trustee may give notice to the Company.
"Default" means any event, occurrence or condition that, with the
passage of time, the giving of notice or both, would constitute an
Event of Default.
"Depositary" means, with respect to the Notes issuable in whole
or in part in global form, the Person specified in Section 2.3 hereof
as the Depositary with respect to the Notes, until a successor shall
have been appointed and become such pursuant to the applicable
provisions of this Indenture, and, thereafter, "Depositary" shall mean
or include such successor.
"DeSoto" means DeSoto, Inc., a Delaware corporation and a Wholly
Owned Subsidiary of the Company.
"disposition" or "sale" or "transfer" or other words of similar
meaning do not include the granting or suffering of a Permitted Lien
in order to secure Indebtedness permitted by the Indenture, provided
that no steps or actions have been taken by the holder of such
Permitted Lien to realize upon or dispose of the assets subject
thereto.
"Disqualified Stock" means any Capital Stock that, by its terms
(or by the terms of any security into which it is convertible or for
which it is exchangeable), or upon the happening of any event or with
the passage of time, matures or is redeemable, pursuant to a sinking
fund obligation or otherwise (excluding any redemption at the option
of the issuer of such Capital Stock on a date that is at least 91 days
after the date on which the Notes mature), or is redeemable at the
option of the holder thereof, in whole or in part, on or prior to the
date that is 91 days after the date on which the Notes mature.
"Equity Interests" means Capital Stock and all warrants, options
or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital
Stock).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, as operator of the Euroclear System.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the offer that shall be made by the
Company pursuant to the Registration Rights Agreement to exchange New
Senior Secured Notes for Senior Secured Notes.
"Existing Indebtedness" means all Indebtedness of the Company and
its Subsidiaries in existence on the Issue Date.
"Fair Market Value" means, with respect to any asset, the price
which could be negotiated in an arm's-length free market transaction,
for cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the
transaction. Fair Market Value of any asset of the Company and its
Subsidiaries shall be determined by (i) an executive officer of the
Company, acting in good faith, with respect to any Asset Sale which
involves $1 million or less, and shall be evidenced by an officer's
certificate of said officer delivered to the Trustee or (ii) the
Board of Directors of the Company, acting in good faith, with respect
to any Asset Sale which involves in excess of $1 million, and shall be
evidenced by a Board resolution thereof delivered to the Trustee;
provided that with respect to any Asset Sale which involves in excess
of $10 million the Fair Market Value of any such asset or assets shall
be determined by an Independent Financial Advisor.
"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 from time to time, provided,
however, that for purposes of determining the Consolidated Net Income
of the Company, "GAAP" shall mean such generally accepted accounting
principles as are in effect on the date on which the Notes are
originally issued.
"Global Notes" means, individually and collectively, the
Regulation S Temporary Global Note, the Regulation S Permanent Global
Note and the Restricted Global Note.
"Guarantee" means, as applied to any Indebtedness of another
Person, (i) a guarantee (other than by endorsement of negotiable
instruments for collection in the ordinary course of business), direct
or indirect, in any manner, of all or any part of such Indebtedness,
(ii) any direct or indirect obligation, contingent or otherwise, of a
Person guaranteeing or having the effect of guaranteeing the
Indebtedness of any other Person in any manner and (iii) an agreement
of a Person, direct or indirect, contingent or otherwise, the
practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of
all or any part of such Indebtedness of another Person.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements and (ii)
other agreements or arrangements designed to protect such Person
against fluctuations in interest rates.
"Holder" means a Person in whose name a Note is registered.
"Incur" or "incur" means, with respect to any Indebtedness or
other obligation of any Person, to create, issue (by conversion,
exchange or otherwise), assume, Guarantee or otherwise become liable
in respect of such Indebtedness or other obligation or the recording,
as required pursuant to GAAP or otherwise, of any such Indebtedness or
other obligation on the unconsolidated balance sheet of such Person
(and "incurrence," "incurred," "incurrable" and "incurring" shall have
meanings correlative to the foregoing), provided, however, that a
change in GAAP that results in an obligation of such Person that
exists at such time becoming Indebtedness shall not be deemed an
incurrence of such Indebtedness.
"Indebtedness" means, with respect to any Person, without
duplication, whether recourse is to all or a portion of the assets of
such Person and whether or not contingent,
(i) any liability of such Person (a) for borrowed
money, or under any reimbursement obligation relating to a
letter of credit, bankers' acceptance or note purchase
facility; (b) evidenced by a bond, note, debenture or
similar instrument; (c) for the balance deferred and unpaid
of the purchase price for any property or service or any
obligation upon which interest charges are customarily paid
(except for accrued expenses or trade payables arising in
the ordinary course of business); (d) for the payment of
money relating to a lease that is required to be classified
as a Capital Lease Obligation in accordance with GAAP; (e)
for the maximum fixed repurchase price of any Disqualified
Stock of such Person plus accrued and unpaid dividends
thereon; (f) secured by a lien, including pursuant to the
PBGC Documents;
(ii) any obligation of others secured by a Lien on any
asset of such Person, whether or not any obligation secured
thereby has been assumed, by such Person;
(iii) any obligations of such Person under any Hedging
Obligation; and
(iv) any Guarantee of such Person or any obligation of
such Person which in economic effect is a guarantee with
respect to any Indebtedness of another Person.
For purposes of this definition, "maximum fixed repurchase price" of
any Disqualified Stock which does not have a fixed repurchase price
shall be calculated in accordance with the terms of such Disqualified
Stock as if such Disqualified Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to the
Indenture, and if such price is based upon, or measured by, the Fair
Market Value of such Disqualified Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that is, in
the reasonable and good faith judgment of the Board of Directors of
the Company, qualified to perform the task for which such firm has
been engaged and disinterested and independent with respect to the
Company and its Affiliates.
"Insurance Letters of Credit" means letters of credit issued for
the account of the Company or any Wholly Owned Subsidiary of the
Company for purposes of (i) securing certain deductible amounts
payable by the Company or a Wholly Owned Subsidiary of the Company
under cargo, automobile or general liability insurance policies or
(ii) complying with workers' compensation requirements under
applicable law.
"Intecreditor Agreement" means the Intercreditor Agreement, dated
as of August 7, 1997, by and between the Collateral Agent and Congress
Financial Corporation (Central), as agent under the Amended Credit
Facility and the Amended DeSoto Credit Facility.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Investment" by any Person means any direct or indirect loan,
advance (or other extension of credit) or capital contribution (by
means of any transfer of cash or other Property) to another Person or
any other payments for Property or services for the account or use of
another Person, including without limitation the following:
(i) the purchase or acquisition of any Capital Stock
or other evidence of beneficial ownership in another Person;
(ii) the purchase, acquisition or Guarantee of the
Indebtedness of another Person or the issuance of a "keep
well" with respect thereto; and
(iii) the purchase or acquisition of the business or
assets of another Person;
but shall exclude:
(a) accounts receivable and other extensions of trade
credit on commercially reasonable terms in accordance with
normal trade practices;
(b) the acquisition of property and assets from
equipment suppliers and other vendors in the ordinary course
of business, provided that such property and assets do not
represent all or substantially all of the production
capacity of the supplier or other vendor; and
(c) the acquisition of assets, Capital Stock or other
securities by the Company for consideration consisting
solely of the Capital Stock of the Company other than
Disqualified Stock.
If the Company or any Subsidiary of the Company sells or otherwise
disposes of any Equity Interests of any direct or indirect Subsidiary
of the Company such that, after giving effect to any such sale or
disposition, such Person is no longer a Subsidiary of the Company, 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 Equity
Interests of such Subsidiary not sold or disposed of.
"Issue Date" means the date on which the Notes are first
authenticated and delivered under this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or
other title retention agreement, any lease in the nature thereof, any
option or other agreement to sell or give a security interest in and
any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Master Trust" means the Keystone Master Retirement Trust.
"Mortgages" means, collectively, the mortgages dated as of the
date hereof between the Company and the Collateral Agent, and the
mortgage dated as of the date hereof between DeSoto and the Collateral
Agent, each as the same may be amended, amended and restated,
supplemented or otherwise modified from time to time.
"Mortgaged Property" has the meaning assigned to such term in the
Mortgages.
"Net Award" shall have the meaning assigned to such term in the
Mortgages and shall include any amounts received in respect of
personal property pursuant to the Security Documents or otherwise.
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received in connection with
the sale or other disposition of any non-cash consideration received
in any such Asset Sale), net of (i) the direct costs relating to such
Asset Sale (including, without limitation, legal, accounting and
investment banking fees, and sales commissions) and any relocation
expenses incurred as a result thereof, (ii) taxes paid or payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements), and (iii) any reserves
established in accordance with GAAP for adjustment in respect of the
sale price of such asset or assets or for any liabilities associated
with such Asset Sale; provided that any reversal of any such reserve
shall be added back in the determination of Net Proceeds.
"Net Casualty Proceeds" shall have the meaning assigned to such
term in the Mortgages and shall include any amounts received in
respect of personal property pursuant to the Security Agreements or
otherwise.
"Non-Collateral Proceeds" has the meaning provided in Section 4.16.
"New Senior Secured Notes" means notes issued by the Company
hereunder containing terms identical to the Senior Secured Notes
(except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Senior Secured Notes or, if no such
interest has been paid, from the date of original issuance, (ii) the
legend or legends relating to transferability and other related
matters set forth on the Senior Secured Notes, including the text
referred to in footnote 2 of Exhibit A-1 hereto, shall be removed or
appropriately altered, and (iii) as otherwise set forth herein), to be
offered to Holders of Senior Secured Notes in exchange for Senior
Secured Notes pursuant to the Exchange Offer, substantially in the
form of Exhibit A-3 attached hereto.
"Note Custodian" means the Trustee, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"Notes" means the Senior Secured Notes and the New Senior Secured
Notes, if any, that are issued under this Indenture, as amended or
supplemented from time to time.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness.
"Officer" means, (a) with respect to any Person that is a
corporation, the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, the Controller, the Secretary or any Vice-
President or Assistant Secretary of such Person and (b) with respect
to any other Person, the individuals selected by such Person to
perform functions similar to those of the officers listed in clause
(a).
"Officers' Certificate" means a certificate signed on behalf of
any Person by two Officers of such Person, one of whom must be the
Chief Executive Officer, the Chief Financial Officer, the Treasurer or
the principal accounting officer of such Person, that meets the
requirements of Sections 12.4 and 12.5 hereof.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of
Sections 12.4 and 12.5 hereof. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the Trustee.
"PBGC" means the Pension Benefit Guaranty Corporation.
"PBGC Documents" means, collectively, (a) the Agreement, dated as
of August 19, 1996, between the Company, the Master Trust and the
PBGC, acting on behalf of itself and various pension plans of the
Company; (b) the Amended and Restated Security Agreement, dated as of
January 8, 1987, between the Company and the Master Trust, as amended
on October 28, 1988, and August 19, 1996; and (c) the Amended and
Restated Subordination Agreement, dated as of June 30, 1987, between
the Company and the Master Trust, as amended on August 19, 1996.
"Permitted Holders" means (i) Harold C. Simmons, (ii) the
trustees of the Harold C. Simmons Family Trust No. 1 dated January 1,
1964, the Harold C. Simmons Family Trust No. 2 dated January 1, 1964
and any trust or trusts, established after the Issue Date for the
benefit of Harold C. Simmons and/or his spouse or his descendants
whether natural or adopted (such trusts collectively, the "Trusts" and
such individuals collectively, the "Beneficiaries"), (iii) each of the
Trusts, (iv) each of the Beneficiaries, (v) any Person controlled,
directly or indirectly, by one or more of the Persons described in
clauses (i) through (iv) above, (vi) any employee benefit plan or
pension fund of the Company or any Subsidiary, (vii) any Person
holding Voting Stock for or pursuant to the terms of any such plan or
fund, and (viii) any group made up of Persons described in clauses (i)
through (vii) above.
"Permitted Indebtedness" means the Indebtedness set forth in the
following clauses (each of which shall be given independent effect):
(i) any Permitted Secured Debt of the Company under the Amended
Credit Facility in an aggregate principal amount at any time
outstanding (being deemed to have a principal amount equal to the
maximum potential liability of the Company thereunder) not to exceed
an amount equal to $25 million under the Amended Credit Facility;
provided that at no time shall the sum of the aggregate principal
amount outstanding under the Amended Credit Facility pursuant to this
clause (i) and the amount outstanding under clause (ii) below exceed
$25 million in the aggregate;
(ii) any Permitted Secured Debt of DeSoto under the Amended DeSoto
Credit Facility in an aggregate principal amount at any time
outstanding (being deemed to have a principal amount equal to the
maximum potential liability of DeSoto thereunder) not to exceed an
amount equal to $10 million under the Amended DeSoto Credit Facility;
provided that at no time shall the sum of the aggregate principal
amount outstanding under the Amended DeSoto Credit Facility pursuant
to this clause (ii) and the amount outstanding under clause (i) above
exceed $25 million in the aggregate;
(iii) the Permitted Secured Debt of the Company represented by the
PBGC Documents;
(iv) the Notes;
(v) the Existing Indebtedness of the Company and its Subsidiaries
(except to the extent such Indebtedness is proposed to be repaid by
application of the proceeds of the Notes);
(vi) the incurrence by the Company or any of its Wholly Owned
Subsidiaries of intercompany Indebtedness between or among the Company
and any of its Wholly Owned Subsidiaries; provided, however, that (A)
any subsequent issuance, transfer or other disposition of Equity
Interests that results in any such Indebtedness being held by a Person
other than the Company or a Wholly Owned Subsidiary and (B) any sale,
transfer or other disposition of any such Indebtedness to a Person
that is not either the Company or a Wholly Owned Subsidiary shall be
deemed, in each case, to constitute a new incurrence of such
Indebtedness;
(vii) the incurrence by the Company or any of its Subsidiaries of
Permitted Refinancing Debt to the extent in exchange for, or to the
extent the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund, Indebtedness that was permitted by the
Indenture to be incurred;
(viii) the incurrence of Indebtedness or the issuance of
Disqualified Stock or preferred stock by any Person prior to the time
(A) such Person became a Subsidiary of the Company, (B) such Person
merges into or consolidates with a Subsidiary of the Company or (C)
another Subsidiary of the Company merges into or consolidates with
such Person (in a transaction in which such Person becomes a
Subsidiary of the Company), provided, however, that immediately
following the transaction which caused such Person to become a
Subsidiary, the Company could incur $1.00 of additional Indebtedness
pursuant to the first sentence under Section 4.9;
(ix) the incurrence by the Company or any of its Subsidiaries of
additional Indebtedness represented by Capital Lease Obligations,
mortgage financings, Purchase Money Obligations, in each case,
incurred for the purpose of financing or refinancing all or any part
of the purchase price or cost of construction or improvement of
property, plant or equipment used in the business of the Company or
such Subsidiary, in an aggregate principal amount not to exceed $5
million at any time outstanding, provided, however, that in the case
of Purchase Money Obligations, such Indebtedness shall not constitute
more than 100% of the cost to the Company or such Subsidiary of the
property purchased or leased with the proceeds thereof;
(x) the incurrence in the ordinary course of business by the Company
of Indebtedness representing reimbursement obligations under
commercial letters of credit;
(xi) the incurrence by the Company of Hedging Obligations that are
incurred for the purpose of fixing or hedging interest rate risk with
respect to any floating rate Indebtedness that is permitted by the
terms of this Indenture to be outstanding;
(xii) the incurrence by the Company of Indebtedness in respect of
bid, performance or advance payment bonds, and appeal and surety
bonds; and
(xiii) the incurrence of Indebtedness by the Company (other than
that referred to in clauses (i) through (xii) above) notwithstanding
the limitations in the preceding clauses (i) through (xii) not to
exceed $5 million outstanding at any give time.
For purposes of this definition, (i) in the event that an item of
Indebtedness meets the criteria of more than one of the types of
Permitted Indebtedness permitted by the clauses (i) through (xiii) of
this definition, the Company in its sole discretion will classify such
item of Permitted Indebtedness and will only be required to include
the amount of such Indebtedness once in determining compliance with
amount limits set forth in this definition; (ii) the amount of
Indebtedness issued at a price which is less than the principal amount
thereof shall be equal to the amount of liability in respect thereof
determined in accordance with GAAP; and (iii) the amount of
Indebtedness represented by a Guarantee of a primary obligation of
another Person shall be deemed to be the lower of (x) an amount equal
to the maximum amount of the primary obligation (including without
limitation all principal, premiums, if any, interest, fees and all
other amounts in respect thereof) in respect of which such Guarantee
is made and (y) the maximum amount for which such guaranteeing Person
may be liable pursuant to the terms of the applicable Guarantee,
which, in any case in which such Guarantee consists solely of the
granting of a Lien on any asset of such guaranteeing Person, shall be
limited to the Fair Market Value of such asset.
"Permitted Investments" means:
(a) any Investment in the Company or in a Subsidiary;
(b) any Investment in Cash Equivalents;
(c) any Investment by the Company or any Subsidiary in
a Person, if as a result of such Investment (i) such Person
becomes a Subsidiary or (ii) such Person is merged,
consolidated or amalgamated with or into, or transfers or
conveys substantially all of its assets to, or is liquidated
into, the Company or a Subsidiary;
(d) any Investment made as a result of the receipt of
non-cash consideration from an Asset Sale that was made
pursuant to and in compliance with Section 4.16 hereof;
(e) any obligations or shares of Capital Stock received
in connection with or as a result of a bankruptcy, workout
or reorganization of the issuer of such obligations or
shares of Capital Stock;
(f) any Investment received involuntarily; and
(g) any Investment existing on the date of this
Indenture.
"Permitted Liens" means:
(i) Liens on assets of the Company or its Subsidiaries
to secure the Amended Credit Facility, the Amended DeSoto
Credit Facility, the PBGC Documents, the Notes and other
Permitted Secured Debt that was permitted by the terms of
the Indenture and the Security Documents to be incurred;
(ii) Liens existing on the date of the Indenture;
(iii) Liens to secure any Permitted Refinancing Debt,
in whole or in part, of any Indebtedness secured by Liens
referred to in the foregoing clause (i) or (ii);
(iv) Liens in favor of the Company or any of its
Subsidiaries;
(v) Liens on property of a Person existing at the time
such Person is merged into or consolidated with the Company
or any Subsidiary; provided that such Liens were in
existence prior to such merger or consolidation and were not
incurred in contemplation thereof and do not extend to any
assets other than those of the Person merged into or
consolidated with the Company or any Subsidiary of the
Company;
(vi) Liens on property existing at the time of
acquisition thereof by the Company or any Subsidiary,
provided that such Liens were in existence prior to such
acquisition and were not incurred in contemplation thereof
and do not extend to any assets other than those so acquired
by the Company or any Subsidiary;
(vii) Liens to secure the performance of statutory
obligations, surety or appeal bonds, performance bonds or
other obligations of a like nature incurred in the ordinary
course of business (or to secure reimbursement obligations
in respect of letters of credit issued in connection with
any of the foregoing obligations);
(viii) Liens to secure Indebtedness (including Purchase
Money Obligations and Capital Lease Obligations) permitted
to be incurred by clause (ix) of the definition of Permitted
Indebtedness covering only the assets acquired with such
Indebtedness;
(ix) Liens for taxes, assessments or governmental
charges or claims that are not yet delinquent or that are
being contested in good faith by appropriate proceedings
promptly instituted and diligently pursued, provided that
any reserve or other appropriate provision as shall be
required in conformity with GAAP shall have been made
therefor;
(x) covenants, easements, rights-of-way, restrictions,
encroachments or other similar encumbrances not materially
impairing the marketability of the property encumbered
thereby and not interfering in any material respect with the
use of such property or with the ordinary conduct of the
business of the Company or any Subsidiary;
(xi) Liens with respect to judgments which have been
stayed or for which a bond having a value equal to the
judgment amount has been posted, but only for so long as
such judgment has been stayed or such bond remains posted
and outstanding;
(xii) Liens incurred in the ordinary course of business
of the Company or any Subsidiary with respect to obligations
that do not exceed $1.0 million at any one time outstanding
and that (a) are not incurred in connection with the
borrowing of money or the obtaining of advances or credit
(other than trade credit in the ordinary course of business)
and (b) do not in the aggregate materially detract from the
value of the property or materially impair the use thereof
in the operation of business by the Company or such
Subsidiary; and
(xiii) Liens on assets or property (including any real
property upon which such assets or property are or will be
located) securing Indebtedness incurred to purchase or
construct such assets or property, which Indebtedness is
permitted to be incurred under the Indenture.
"Permitted Refinancing Debt" means any Indebtedness of the
Company or any of its Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace,
defease or refund other Indebtedness of the Company or such
Subsidiaries, provided that:
(i) the principal amount (or accreted value, if
applicable), of such Permitted Refinancing Debt does not
exceed the principal amount (or accreted value, if
applicable), of the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of
reasonable expenses incurred in connection therewith);
(ii) such Permitted Refinancing Debt has a final
maturity no earlier than the final maturity date of, and has
a Weighted Average Life to Maturity equal to or greater than
the Weighted Average Life to Maturity of, the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded;
(iii) if the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded is subordinated in
right of payment to the Notes, such Permitted Refinancing
Debt has a final maturity date later than the final maturity
date of, and is subordinated in right of payment to, the
Notes on terms at least as favorable to the Holders of Notes
as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; and
(iv) such Indebtedness may not be incurred by any
Subsidiary if the Company is the original obligor on the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded.
"Permitted Secured Debt" means any Indebtedness of the Company or
any Subsidiary (plus interest, premium, fees and other obligations
associated therewith), and any refinancing, refunding, replacement,
renewal or extension thereof, (a) under the Amended Credit Facility,
(b) under the Amended DeSoto Credit Facility, (c) under the PBGC
Documents, (d) under the Notes, (e) constituting Purchase Money
Obligations, (f) constituting Capital Lease Obligations, or (g)
secured by Permitted Liens.
"Person" means any individual, corporation, limited or general
partnership, limited liability company, joint venture, association,
joint stock company, trust, entity, unincorporated organization or
government or any agency or political subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and Trading
through Automated Linkages Market operated by the National Association
of Securities Dealers, Inc. or any successor thereto.
"Preferred Stock" means, with respect to any Person, all Capital
Stock of such Person of any class or classes (however designated,
whether voting or non-voting) that ranks prior, as to distribution in
profit or liquidation, to shares of Common Stock of such Person.
"Prior Liens" has the meaning assigned to such term in the
Mortgages.
"Public Equity Offering" means any underwritten public offering
of Capital Stock of the Company or a Successor Entity pursuant to an
effective registration statement (other than a registration statement
on Form S-4 or Form S-8 or any successor or similar form) under the
Securities Act.
"Purchase Date" means each date on which the Company is obligated
to repurchase Notes pursuant to the terms of this Indenture.
"Purchase Money Obligations" means, with respect to any specified
Person, Indebtedness of such Person incurred for the purpose of
financing all or any part of the purchase price or the cost of
construction or improvement of equipment or property, but only if such
equipment or property is or should be included in "addition to
property, plant or equipment" in accordance with generally accepted
accounting principles and only if such equipment or property is not
being purchased as part of an acquisition of any business.
"Purchase Price" means the amount payable for the repurchase of
any Note on a Purchase Date, exclusive of accrued and unpaid interest
and Liquidated Damages (if any) thereon to the Purchase Date, unless
otherwise specifically provided.
"QIB" means a qualified institutional buyer as defined in Rule
144A under the Securities Act.
"QIB Restricted Note" means a Note initially bearing CUSIP number
493422 AA 7 through which QIBs hold a beneficial interest in the
Restricted Global Note, or any replacement Note issued therefor.
"Qualified Capital Stock" in any Person means a class of Capital
Stock other than Disqualified Capital Stock.
"Real Property" means any interest in any real property or any
portion thereof whether owned in fee or leased or otherwise owned.
"Related Business Investment" means any Investment, Capital
Expenditure or other expenditure by the Company or any Subsidiary of
the Company which is related to the business of the Company and its
Subsidiaries as it is conducted on the Issue Date.
"Redemption Date" means, with respect to any Note to be redeemed,
the date fixed for such redemption by or pursuant to Section 3.7 of
this Indenture.
"Redemption Price" means the amount payable for the redemption of
any Note on a Redemption Date, exclusive of accrued and unpaid
interest and Liquidated Damages (if any) thereon to the Redemption
Date, unless otherwise specifically provided.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, among the Company, Wasserstein
Perella Securities, Inc. and PaineWebber Incorporated, as such
agreement may be amended, modified or supplemented from time to time.
"Registrable Notes" shall have the meaning set forth in the
Registration Rights Agreement.
"Regulation S" means Regulation S as promulgated under the
Securities Act, as such Regulation is in effect on the date hereof
and, to the extent applicable to the Notes, as such Regulation is
amended or supplemented from time to time.
"Regulation S Global Note" means a Regulation S Temporary Global
Note or Regulation S Permanent Global Note, as appropriate.
"Regulation S Permanent Global Note" means a permanent global
note that contains the paragraph referred to in footnote 1 and the
additional schedule referred to in footnote 3 to the form of the Note
attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depositary, representing a series of
Notes sold in reliance on Regulation S.
"Regulation S Temporary Global Note" means a single temporary
global note the face of which is in the form of the Note attached
hereto as Exhibit A-2 and the back of which is in the form of the back
of a permanent global note in the form of the Note attached as Exhibit
A-1, that is deposited with and registered in the name of the
Depositary, representing a series of Notes sold in reliance on
Regulation S.
"Released Interests" has the meaning provided in Section 10.3.
"Released Trust Moneys" has the meaning provided in Section 11.4.
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee assigned by the Trustee to
administer this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Global Note" means an Accredited Restricted Note or a
QIB Restricted Note, which is a permanent global note that contains
the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 3 to the form of the Note attached hereto as
Exhibit A-1, and that is deposited with and registered in the name of
the Depositary.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Period" means the 40-day restricted period as defined
in Regulation S.
"Rule 144A" means Rule 144A promulgated under the Securities Act
as such Rule is in effect on the date hereof, and, to the extent
applicable to the Notes, as such Regulation is amended or supplemented
from time to time.
"Sale/leaseback" means any lease, whether an operating lease or a
capital lease, whereby the Company or any of its Subsidiaries,
directly or indirectly, becomes or remains liable as lessee or an
guarantor or other surety, of any property (whether real or personal
or mixed) whether now owned or hereafter acquired, (i) that the
Company or its Subsidiaries, as the case may be, has sold or
transferred or is to sell or transfer to any other Person (other than
the Company), or (ii) that the Company or any of its Subsidiaries, as
the case may be, intends to use for substantially the same purpose as
any other property that has been or is to be sold or transferred by
the Company or any such Subsidiaries to any Person (other than the
Company) in connection with such lease.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreements" means, collectively, the security agreement
dated as of the date hereof between the Company and the Collateral
Agent, and the security agreement dated as of the date hereof between
DeSoto and the Collateral Agent, each as the same may be amended,
amended and restated, supplemented or otherwise modified from time to
time.
"Security Documents" means, collectively, the Security
Agreements, the Mortgages, the documentation relating to the
Collateral Account, the Intercreditor Agreement and all other
instruments or documents entered into or delivered in connection with
any of the foregoing, as such agreements, instruments or documents may
be amended, amended and restated, supplemented or otherwise modified
from time to time.
"Senior Secured Notes" means the Company's 9 5/8% Senior Secured
Notes due 2007 issued pursuant to this Indenture, but excludes the New
Senior Secured Notes.
"Series A Preferred Stock" means the Company's Series A Senior
Preferred Stock, no par value, designated pursuant to a Certificate of
Designation filed with the Secretary of State of the State of Delaware
on September 23, 1996, as in effect on the Issue Date, subject to
mandatory redemption on July 1, 2000, or earlier, upon the occurrence
of a change of control (as defined in the Certificate of Designation)
or the occurrence of certain other events.
"Subsidiary" means with respect to any Person, (i) any
corporation, association or other business entity of which more than
50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or in a combination
thereof) and (ii) any partnership or limited liability company (a) the
sole general partner or member or the managing general partner or
member of which is such Person or a Subsidiary of such Person or (b)
the only general partners or members of which are such Person or of
one or more Subsidiaries of such Person (or any combination thereof).
"Survey" means a survey of any parcel of real property (and all
improvements thereon): (i) prepared by a surveyor or engineer
licensed to perform surveys in the state where such property is
located, (ii) dated (or redated) not earlier than six months prior to
the date of delivery thereof (unless there shall have occurred within
six months prior to such date of delivery any exterior construction on
the site of such property, in which event such survey shall be dated
(or redated) after the completion of such construction or if such
construction shall not have been completed as of such date of
delivery, not earlier than 20 days prior to such date of delivery),
(iii) certified by the surveyor (in a manner reasonably acceptable to
the title company providing title insurance) and (iv) complying in all
respects with the minimum detail requirements of the American Land
Title Association, or local equivalent, as such requirements are in
effect on the date of preparation of such survey, or that is otherwise
reasonably acceptable to the Trustee (giving consideration to the
applicable transaction).
"Taking" shall have the meaning assigned to such term in the
Mortgage.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this
Indenture, and thereafter means the successor serving hereunder.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss. 77aaa-
77bbbb) as in effect on the date on which this Indenture is qualified
under the TIA; provided that in the event the Trust Indenture Act of
1939 is amended after such date, "TIA" means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trust Moneys" has the meaning provided in Section 11.1.
"U.S. Government Securities" shall mean securities which are (i)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, the payment of which
is unconditionally guaranteed as a full faith and credit obligation by
the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Securities or a
specific payment of interest on or principal of any such U.S.
Government Securities held by such custodian for the account of the
holder of a depository receipt; provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Securities or the specific payment of interest on or principal of the
U.S. Government Securities evidenced by such depository receipt.
"U.S. Persons" means any U.S. Person as defined in Regulation S.
"Voting Stock" means, with respect to any Person, the Capital
Stock of any class or kind ordinarily having the power to vote for the
election of directors or other members of the governing body of such
Person.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i)
the sum of the products obtained by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or other
required payments of principal, including payment at final maturity,
in respect thereof, by (b) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making
of such payment, by (ii) the then outstanding principal amount of such
Indebtedness.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person, all of the outstanding Capital Stock or other ownership
interests of which (other than directors' qualifying shares) is at the
time owned by (i) such Person or (ii) such Person and one or more
Wholly Owned Subsidiaries of such Person.
SECTION 1.2. OTHER DEFINITIONS.
Defined in
Term Section
"Accredited Investors".................2.1
"Act"..................................1.5
"Affiliate Transaction"................4.10
"Asset Sale Offer".....................4.16
"Asset Sale Offer Period".................... 3.9
"Available Amount".....................4.16
"Change of Control Offer"..............4.14
"Change of Control Offer Period"........ 3.8
"Covenant Defeasance"..................8.3
"Event of Default".....................6.1
"Legal Defeasance".....................8.2
"Offer Amount".........................3.9
"Paying Agent".........................2.3
"Payment Default"......................6.1
"Private Placement Legend".............2.6
"Registrar"............................2.3
"Restricted Payments"..................4.7
"Surviving Entity".....................5.1
"Valuation Date"......................10.3
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Notes means the Company and any successor
obligor upon the Notes.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
SECTION 1.4. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in the plural
include the singular;
(e) provisions apply to successive events and transactions;
(f) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision; and
(g) references to sections of or rules under the Securities Act,
the Exchange Act and the TIA shall be deemed to include substitute,
replacement and successor sections or rules adopted by the Commission
from time to time.
SECTION 1.5. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent 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 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 7.1) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership or a
limited liability company, on behalf of such corporation, partnership or limited
liability company, such certificate or affidavit shall also constitute
sufficient proof of his or her authority.
(c) The ownership of Notes shall be proved by the register maintained by the
Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Note shall bind every future Holder of the same
Note and the holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
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 Note.
ARTICLE II.
THE NOTES
SECTION 2.1. FORM AND DATING.
The Notes and the Trustee's certificate of authentication shall be substantially
in the form of Exhibits A-1, A-2 and A-3 hereto. The Notes may have notations,
legends or endorsements required by law, stock exchange rule or usage in
addition to those set forth in Exhibits A-1, A-2 and A-3 hereto. Each Note
shall be dated the date of its authentication. The Notes shall be in
denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby
expressly made, a part of this Indenture and the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
(a) Global Notes. Notes offered and sold to QIBs in reliance on Rule 144A and
accredited institutional investors as defined in Rule 501(a)(1), (2), (3) or (7)
under the Securities Act ("Accredited Investors") who are not QIBs, otherwise
than in reliance on Regulation S, shall be evidenced by one or more Restricted
Global Notes, deposited with the Trustee, as custodian for the Depositary and
registered in the name of the Depositary or a nominee of the Depositary, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Restricted Global Notes may
from time to time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary or its nominee, as hereinafter
provided.
Notes offered and sold in offshore transactions in reliance on Regulation S
shall be issued initially in the form of a Regulation S Temporary Global Note,
deposited with the Trustee, as custodian for the Depositary and registered in
the name of the Depositary or the nominee of the Depositary for the accounts of
designated agents holding on behalf of Euroclear or Cedel, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The
Restricted Period shall be terminated upon the receipt by the Trustee of an
Officers' Certificate from the Company. Following the termination of the
Restricted Period, beneficial interests in the Regulation S Temporary Global
Note shall be exchanged for beneficial interests in Regulation S Permanent
Global Notes pursuant to the Applicable Procedures. Simultaneously with the
authentication of Regulation S Permanent Global Notes, the Trustee shall cancel
the Regulation S Temporary Global Note. The aggregate principal amount of the
Regulation S Temporary Global Note and the Regulation S Permanent Global Notes
may from time to time be increased or decreased by adjustments made on the
records of the Trustee and the Depositary or its nominee, as the case may be, in
connection with transfers of interest as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall represent the aggregate
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Note to reflect the amount of any increase or
decrease in the amount of outstanding Notes represented thereby shall be made by
the Trustee or the Note Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.6 hereof.
The provisions of the "Operating Procedures of the Euroclear System" and "Terms
and Conditions Governing Use of Euroclear" and the "Management Regulations" and
"Instructions to Participants" of Cedel shall be applicable to interests in the
Regulation S Temporary Global Note and the Regulation S Permanent Global Note
that are held by the Agent Members through Euroclear or Cedel.
Except as set forth in Section 2.6 hereof, the Global Notes may be transferred,
in whole and not in part, only to another nominee of the Depositary or to a
successor of the Depositary or its nominee.
(b) Book-Entry Provisions. This Section 2.1(b) shall apply only to the Global
Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with Section 2.2,
authenticate and deliver the Global Notes that (i) shall be registered in the
name of the Depositary or the nominee of the Depositary and (ii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for the Depositary.
Agent Members shall have no rights either under this Indenture with respect to
any Global Note held on their behalf by the Depositary or by the Trustee as
custodian for the Depositary or under such Global Note, and the Depositary may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of
an owner of a beneficial interest in any Global Note.
(c) Certificated Notes. Notes issued in certificated form shall be
substantially in the form of Exhibit A-1 attached hereto (but without including
the text referred to in footnotes 1 and 3 thereto).
SECTION 2.2. EXECUTION AND AUTHENTICATION.
Two Officers of the Company shall sign the Notes for the Company by manual or
facsimile signature. The seal of the Company shall be reproduced on the Notes
and may be in facsimile form.
If an Officer whose signature is on a Note no longer holds that office at the
time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of the
Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee, upon a written order of the Company signed by two Officers of the
Company shall authenticate Senior Secured Notes for original issue up to the
aggregate principal amount stated in paragraph 3 of the Notes. The Trustee,
upon written order of the Company signed by two Officers of the Company shall
authenticate New Senior Secured Notes for original issue up to the aggregate
principal amount stated in paragraph 3 of the Notes; provided that such New
Senior Secured Notes shall be issuable only upon the valid surrender for
cancellation of Senior Secured Notes of a like aggregate principal amount in
accordance with the Exchange Offer. Such written order of the Company shall
specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated. The aggregate principal amount
of Notes outstanding at any time may not exceed such amount except as provided
in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Notes. An authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.3. REGISTRAR AND PAYING AGENT; DEPOSITARY.
The Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Notes may be presented for payment ("Paying Agent"). The Registrar shall
keep a register of the Notes and of their transfer and exchange. At the option
of the Company, payment of interest and Liquidated Damages may be made by check
mailed to the Holders at their addresses set forth in the register of Holders,
provided that payment by wire transfer of immediately available funds will be
required with respect to principal, Redemption Price and Purchase Price of, and
interest and Liquidated Damages (if any) on, all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions to the
Trustee or the Paying Agent. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar" includes any co-
registrar and the term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent or Registrar without notice to any Holder.
The Company shall notify the Trustee in writing of the name and address of any
Paying Agent not a party to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company may act as Paying Agent or Registrar. The Depositary shall,
by acceptance of a Global Note, agree that transfers of beneficial interests in
such Global Note may be effected only through a book-entry system maintained by
the Depositary (or its agent), and that ownership of a beneficial interest in
the Note shall be required to be reflected in a book entry.
The Company initially appoints The Depository Trust Company to act as Depositary
with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and Paying
Agent and to act as Note Custodian with respect to the Global Notes.
SECTION 2.4. PAYING AGENTS TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust for the benefit of Holders or
the Trustee all money held by the Paying Agent for the payment of principal of,
Redemption Price and Purchase Price of, and interest and Liquidated Damages, if
any, on the Notes, and will notify the Trustee of any default by the Company in
making any such payment. While any such default continues, the Trustee may
require a Paying Agent to pay all money held by it to the Trustee. The Company
at any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the
Company) shall have no further liability for the money. If the Company acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of the Holders all money held by it as Paying Agent. Upon any
bankruptcy or reorganization proceedings relating to the Company, the Trustee
shall serve as Paying Agent for the Notes.
SECTION 2.5. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of all Holders and
shall otherwise comply with TIA s. 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least seven Business Days before
each Interest Payment Date and at such other times as the Trustee may request in
writing a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of the Holders of Notes, and the Company
shall otherwise comply with TIA s. 312(a).
SECTION 2.6. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture and the procedures of the
Depositary therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in a Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Global Note in
accordance with the transfer restrictions set forth in the legend in subsection
(g) of this Section 2.6. Transfers of beneficial interests in the Global Notes
to Persons required to take delivery thereof in the form of an interest in
another Global Note shall be permitted as follows:
(i) Restricted Global Note to Regulation S Global Note. If, at
any time, an owner of a beneficial interest in a Restricted Global
Note deposited with the Depositary (or the Trustee as custodian for
the Depositary) wishes to transfer its interest in such Restricted
Global Note to a Person who is required or permitted to take delivery
thereof in the form of an interest in a Regulation S Global Note, such
owner shall, subject to the Applicable Procedures, exchange or cause
the exchange of such interest for an equivalent beneficial interest in
a Regulation S Global Note as provided in this Section 2.6(a)(i).
Upon receipt by the Trustee of (1) instructions given in accordance
with the Applicable Procedures from an Agent Member directing the
Trustee to credit or cause to be credited a beneficial interest in the
Regulation S Global Note in an amount equal to the beneficial interest
in the Restricted Global Note to be exchanged, (2) a written order
given in accordance with the Applicable Procedures containing
information regarding the participant account of the Depositary and,
if applicable, the Euroclear or Cedel account to be credited with such
increase, and (3) a certificate in the form of Exhibit B-1 hereto
given by the owner of such beneficial interest stating that the
transfer of such interest has been made in compliance with the
transfer restrictions applicable to the Global Notes and pursuant to
and in accordance with Rule 903 or Rule 904 of Regulation S, then the
Trustee, as Registrar, shall instruct the Depositary to reduce or
cause to be reduced the aggregate principal amount at maturity of the
applicable Restricted Global Note and to increase or cause to be
increased the aggregate principal amount at maturity of the applicable
Regulation S Global Note by the principal amount at maturity of the
beneficial interest in the Restricted Global Note to be exchanged, to
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in the Regulation S Global
Note equal to the reduction in the aggregate principal amount at
maturity of the Restricted Global Note, and to debit, or cause to be
debited, from the account of the Person making such exchange or
transfer the beneficial interest in the Restricted Global Note that is
being exchanged or transferred.
(ii) Regulation S Global Note to Restricted Global Note. If, at
any time, an owner of a beneficial interest in a Regulation S Global
Note deposited with the Depositary or with the Trustee as custodian
for the Depositary wishes to transfer its interest in such Regulation
S Global Note to a Person who is required or permitted to take
delivery thereof in the form of an interest in a Restricted Global
Note, such owner shall, subject to the Applicable Procedures, exchange
or cause the exchange of such interest for an equivalent beneficial
interest in a Restricted Global Note as provided in this Section
2.6(a)(ii). Upon receipt by the Trustee of (1) instructions from
Euroclear or Cedel, if applicable, and the Depositary, directing the
Trustee, as Registrar, to credit or cause to be credited a beneficial
interest in the Restricted Global Note equal to the beneficial
interest in the Regulation S Global Note to be exchanged, such
instructions to contain information regarding the participant account
with the Depositary to be credited with such increase, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the participant account of the Depositary and
(3) a certificate in the form of Exhibit B-2 attached hereto given by
the owner of such beneficial interest stating (A) if the transfer is
pursuant to Rule 144A, that the Person transferring such interest in a
Regulation S Global Note reasonably believes that the Person acquiring
such interest in a Restricted Global Note is a QIB and is obtaining
such beneficial interest in a transaction meeting the requirements of
Rule 144A and any applicable blue sky or securities laws of any state
of the United States, (B) that the transfer complies with the
requirements of Rule 144 under the Securities Act and any applicable
blue sky or securities laws of any state of the United States or (C)
if the transfer is pursuant to any other exemption from the
registration requirements of the Securities Act, that the transfer of
such interest has been made in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in
accordance with the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from the transferee
or the transferor in form and substance reasonably acceptable to the
Company, then the Trustee, as Registrar, shall instruct the Depositary
to reduce or cause to be reduced the aggregate principal amount at
maturity of the applicable Regulation S Global Note and to increase or
cause to be increased the aggregate principal amount at maturity of
the applicable Restricted Global Note by the principal amount at
maturity of the beneficial interest in the Regulation S Global Note to
be exchanged, and the Trustee, as Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the applicable Restricted Global Note equal to
the reduction in the aggregate principal amount at maturity of such
Regulation S Global Note and to debit or cause to be debited from the
account of the Person making such transfer the beneficial interest in
the Regulation S Global Note that is being transferred.
(iii) Accredited Restricted Note to QIB Restricted Note. If,
at any time, an owner of a beneficial interest in an Accredited
Restricted Note deposited with the Depositary or with the Trustee as
custodian for the Depositary wishes to transfer its interest in such
Accredited Restricted Note to a Person who is required or permitted to
take delivery thereof in the form of an interest in a QIB Restricted
Note, such owner shall, subject to the Applicable Procedures, exchange
or cause the exchange of such interest for an equivalent beneficial
interest in a QIB Restricted Note as provided in this Section
2.6(a)(iii). Upon receipt by the Trustee of (1) instructions from the
Depositary, directing the Trustee, as Registrar, to credit or cause to
be credited a beneficial interest in the QIB Restricted Note equal to
the beneficial interest in the Accredited Restricted Note to be
transferred, such instructions to contain information regarding the
participant account with the Depositary to be credited with such
increase, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the participant account of
the Depositary and (3) a certificate in the form of Exhibit B-5
attached hereto given by the owner of such beneficial interest stating
that the Person transferring such interest in an Accredited Restricted
Note reasonably believes that the Person acquiring such interest in a
QIB Restricted Note is a QIB and is obtaining such beneficial interest
in a transaction meeting the requirements of Rule 144A and any
applicable blue sky or securities laws of any state of the United
States, then the Trustee, as Registrar, shall instruct the Depositary
to reduce or cause to be reduced the aggregate principal amount at
maturity of the applicable Accredited Restricted Note and to increase
or cause to be increased the aggregate principal amount at maturity of
the applicable QIB Restricted Note by the principal amount at maturity
of the beneficial interest in the Accredited Restricted Note to be
exchanged, and the Trustee, as Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the applicable QIB Restricted Note equal to the
reduction in the aggregate principal amount at maturity of such
Accredited Restricted Global Note and to debit or cause to be debited
from the account of the Person making such transfer the beneficial
interest in the Accredited Restricted Note that is being transferred.
(iv) QIB Restricted Note to Accredited Restricted Note. If, at
any time, an owner of a beneficial interest in a QIB Restricted Note
deposited with the Depositary or with the Trustee as custodian for the
Depositary wishes to transfer its interest in such QIB Restricted Note
to a Person who is required or permitted to take delivery thereof in
the form of an interest in an Accredited Restricted Note, such owner
shall, subject to the Applicable Procedures, exchange or cause the
exchange of such interest for an equivalent beneficial interest in
Accredited Restricted Note as provided in this Section 2.6(a)(iv).
Upon receipt by the Trustee of (1) instructions from the Depositary,
directing the Trustee, as Registrar, to credit or cause to be credited
a beneficial interest in the Accredited Restricted Note equal to the
beneficial interest in the QIB Restricted Note to be transferred, such
instructions to contain information regarding the participant account
with the Depositary to be credited with such increase, (2) a written
order given in accordance with the Applicable Procedures containing
information regarding the participant account of the Depositary and
(3) a certificate in the form of Exhibit B-6 attached hereto given by
the owner of such beneficial interest stating, that the transfer of
such interest has been made in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in
accordance with the requirements of the exemption claimed, such
statement to be supported by an Opinion of Counsel from the transferee
or the transferor in form and substance reasonably acceptable to the
Company, then the Trustee, as Registrar, shall instruct the Depositary
to reduce or cause to be reduced the aggregate principal amount at
maturity of the applicable QIB Restricted Note and to increase or
cause to be increased the aggregate principal amount at maturity of
the applicable Accredited Restricted Note by the principal amount at
maturity of the beneficial interest in the QIB Restricted Note to be
exchanged, and the Trustee, as Registrar, shall instruct the
Depositary, concurrently with such reduction, to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the applicable Accredited Restricted Note equal
to the reduction in the aggregate principal amount at maturity of such
QIB Restricted Note and to debit or cause to be debited from the
account of the Person making such transfer the beneficial interest in
the QIB Restricted Note that is being transferred.
(b) Transfer and Exchange of Certificated Notes. When Certificated Notes are
presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Certificated Notes; or
(y) to exchange such Certificated Notes for an equal principal
amount of Certificated Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested;
provided, however, that the Certificated Notes presented or surrendered for
register of transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in
writing; and
(ii) in the case of a Certificated Note that contains the Private
Placement Legend, such request shall be accompanied by the following
additional information and documents, as applicable:
(A) if such Note is being delivered to the Registrar
by a Holder for registration in the name of such Holder,
without transfer, or such Note is being transferred to the
Company, a certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto);
(B) if such Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance
with Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form of Exhibit B-3 hereto); or
(C) if such Note is being transferred in reliance on
any other exemption from the registration requirements of
the Securities Act, a certification to that effect from such
Holder (in substantially the form of Exhibit B-3 hereto) and
an Opinion of Counsel from such Holder or the transferee
reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act.
(c) Exchange of a Beneficial Interest in a Restricted Global Note or Regulation
S Permanent Global Note for a Certificated Note.
(i) Any Person having a beneficial interest in a Restricted
Global Note or a Regulation S Permanent Global Note may upon request,
subject to the Applicable Procedures, exchange such beneficial
interest for a Certificated Note. Upon receipt by the Trustee of
written instructions or such other form of instructions as is
customary for the Depositary (or Euroclear or Cedel, if applicable),
from the Depositary or its nominee on behalf of any Person having a
beneficial interest in a Restricted Global Note or Regulation S
Permanent Global Note, and a certification (which may be submitted by
facsimile) to the effect that such beneficial interest is being
transferred to the same Person designated by the Depositary as having
the beneficial interest in the portion of the Restricted Global Note
being exchanged (in substantially the form of Exhibit B-4 hereto); in
which case the Trustee or the Note Custodian, at the direction of the
Trustee, shall, in accordance with the standing instructions and
procedures existing between the Depositary and the Note Custodian,
cause the aggregate principal amount of Restricted Global Notes or
Regulation S Permanent Global Notes, as applicable, to be reduced
accordingly and, following such reduction, the Company shall execute
and the Trustee shall authenticate and deliver to the Person
requesting such exchange a Certificated Note in the appropriate
principal amount.
(ii) Certificated Notes issued in exchange for a beneficial
interest in a Restricted Global Note or Regulation S Permanent Global
Note, as applicable, pursuant to this Section 2.6(c) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Certificated Notes to the Persons in whose names
such Notes are so registered. Following any such issuance of
Certificated Notes, the Trustee, as Registrar, shall instruct the
Depositary to reduce or cause to be reduced the aggregate principal
amount at maturity of the applicable Global Note to reflect the
transfer.
(d) Restrictions on Transfer and Exchange of Global Notes. Notwithstanding any
other provision of this Indenture (other than the provisions set forth in this
Section 2.6(d)), a Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(e) Transfer and Exchange of a Certificated Note for a Beneficial Interest in a
Global Note. A Certificated Note may not be transferred or exchanged for a
beneficial interest in a Global Note.
(f) Authentication of Certificated Notes in Absence of Depositary. If at any
time:
(i) the Depositary for the Notes notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the
Global Notes and a successor Depositary for the Global Notes is not
appointed by the Company within 90 days after delivery of such notice;
or
(ii) the Company, at its sole discretion, notifies the Trustee in
writing that it elects to cause the issuance of Certificated Notes
under this Indenture, then the Company shall execute, and the Trustee
shall, upon receipt of an authentication order in accordance with
Section 2.2 hereof, authenticate and deliver, Certificated Notes
registered in such names and principal amounts as specified by the
Depositary in an aggregate principal amount equal to the principal
amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following paragraphs (ii), (iii),
and (iv), each Note certificate evidencing Global Notes (and all Notes
issued in exchange therefor or substitution thereof) shall (x) be
subject to the restrictions on transfer set forth in this Section 2.6
(including those set forth in the legend below) unless such
restrictions on transfer shall be waived by written consent of the
Company, and the Holder of each Registrable Note, by such Holder's
acceptance thereof, agrees to be bound by all such restrictions on
transfer and (y) bear the legend set forth below (the "Private
Placement Legend"):
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN
THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM.
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT IN CONNECTION WITH THE SALE HEREOF, AND SUCH PURCHASER
REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF THE COMPANY
THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY WHICH HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY PRIOR TO THE LATER OF THE DATE WHICH
IS TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED
UNDER RULE 144(k) AS PERMITTING THE RESALE BY NON-AFFILIATES OF
RESTRICTED SECURITIES WITHOUT RESTRICTIONS) AFTER THE DATE OF ORIGINAL
ISSUANCE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF SUCH RESTRICTED SECURITIES
(OR ANY PREDECESSOR) EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A), (D) OUTSIDE THE UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY APPLICABLE
JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE
RESALE RESTRICTIONS SET FORTH IN (II) ABOVE. ANY OFFER, SALE OR OTHER
DISPOSITION PURSUANT TO THE FOREGOING CLAUSES (II)(D) AND (E) IS
SUBJECT TO THE RIGHT OF THE ISSUER OF THIS SECURITY AND THE TRUSTEE
FOR SUCH SECURITIES TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS OR OTHER INFORMATION ACCEPTABLE TO THEM IN FORM AND
SUBSTANCE.
A HOLDER OF THIS NOTE SHALL HAVE ALL THE RIGHTS SET FORTH IN THE
REGISTRATION RIGHTS AGREEMENT."
(ii) Upon any sale or transfer of a Note that contains the
Private Placement Legend (including any beneficial interests in a Note
represented by a Global Note) pursuant to Rule 144A or Rule 144 under
the Securities Act or pursuant to an effective registration statement
under the Securities Act:
(a) in the case of any Certificated Note, the
Registrar shall permit the Holder thereof to exchange such
Note for a Certificated Note that does not bear the Private
Placement Legend upon receipt of a certification from the
transferring Holder substantially in the form of Exhibit B-3
hereto; and
(b) in the case of any beneficial interest in a Note
represented by a Global Note, such Note shall continue to be
subject to the provisions of Section 2.6(a) and (c) hereof;
provided, however, that with respect to any request for an
exchange of a beneficial interest in a Note that is
represented by a Global Note for a Certificated Note that
does not bear the Private Placement Legend, which request is
made in reliance upon Rule 144A or Rule 144 or pursuant to
an effective registration statement, the Holder thereof
shall certify in writing to the Registrar that such request
is being made pursuant to Rule 144A or Rule 144 or pursuant
to an effective registration statement (such certifications
to be substantially in the form of Exhibit B-2 hereto).
(iii) Upon any sale or transfer of a Note that contains the
Private Placement Legend (including any beneficial interests in a Note
represented by a Global Note) in reliance on any exemption from the
registration requirements of the Securities Act (other than exemptions
pursuant to Rule 144A, Rule 144 or an effective registration
statement under the Securities Act) in which the Holder or the
transferee provides an Opinion of Counsel to the Company and the
Registrar in form and substance reasonably acceptable to the Company
(which Opinion of Counsel shall also state that the transfer
restrictions contained in the Private Placement Legend are no longer
applicable):
(a) in the case of any Certificated Note, the
Registrar shall permit the Holder thereof to exchange such
Registrable Note for a Certificated Note that does not bear
the legend set forth in (i) above; and
(b) in the case of any beneficial interest in a Note
represented by a Global Note, such Note shall continue to be
subject to the provisions of Section 2.6(a) and (c) hereof
but may be exchanged for a Certificated Note that does not
bear the Private Placement Legend.
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer in accordance with the Registration Rights Agreement,
the Company shall issue and, upon receipt of an authentication order
in accordance with Section 2.2 hereof, the Trustee shall authenticate
New Senior Secured Notes in exchange for Senior Secured Notes accepted
for exchange in the Exchange Offer, which New Senior Secured Notes
shall not bear the legend set forth in (i) above, in each case unless
the Company has notified the Registrar in writing that the Holder of
such Senior Secured Notes is either (A) a broker-dealer, (B) a Person
participating in the distribution of the Senior Secured Notes or (C) a
Person who is an affiliate (as defined in Rule 144A) of the Company.
(v) Each Global Note, whether or not a Registrable Note, shall
also bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS NOTE IS
NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY 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 DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) 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.
(vi) Any Global Note may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent
with the provisions of this Indenture as may be required by the Note
Custodian, the Depositary or by the National Association of Securities
Dealers, Inc. in order for the Notes to be tradable on the PORTAL
Market or tradable on Euroclear or Cedel or as may be required for the
Notes to be tradable on any other market developed for trading of
securities pursuant to Rule 144A or Regulation S or required to comply
with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange or automated quotation
system upon which the Notes may be listed or traded or to conform with
any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Notes are subject.
(h) Cancellation or Adjustment of Global Notes. At such time as all beneficial
interests in Global Notes have been exchanged for Certificated Notes, redeemed,
repurchased or canceled, all Global Notes shall be returned to or retained and
canceled by the Trustee in accordance with Section 2.11 hereof. At any time
prior to such cancellation, if any beneficial interest in a Global Note is
exchanged for Certificated Notes, redeemed, repurchased or canceled, the
principal amount of Notes represented by such Global Notes shall be reduced
accordingly and an endorsement shall be made on such Global Note by the Trustee
or the Note Custodian, at the direction of the Trustee, to reflect such
reduction.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Certificated
Notes and Global Notes at the Registrar's request.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any
such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 3.6, 4.14, 4.16 and 9.5
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or
in part, except the unredeemed portion of any Note being redeemed in
part.
(iv) All Certificated Notes and Global Notes issued upon any
registration of transfer or exchange of Certificated Notes or Global
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Certificated Notes or Global Notes surrendered upon such
registration of transfer or exchange.
(v) The Company shall not be required:
(a) to issue, to register the transfer of or to
exchange Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes
for redemption under Section 3.2 hereof and ending at the
close of business on the day of selection; or
(b) to register the transfer of or to exchange any
Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part;
or
(c) to register the transfer of or to exchange a Note
between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment of the registration of a transfer
of any Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any Note is registered as the absolute owner
of such Note for the purpose of all payments with respect to such
Notes, and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
(vii) The Trustee shall authenticate Certificated Notes and
Global Notes in accordance with the provisions of Section 2.2 hereof.
SECTION 2.7. REPLACEMENT NOTES.
If any mutilated Note is surrendered to the Trustee or either the Company or the
Trustee receives evidence to its satisfaction of the destruction, loss or theft
of any Note, the Company shall issue and the Trustee, upon receipt of an
authentication order in accordance with Section 2.2 hereof, shall authenticate a
replacement Note if the Trustee's requirements for replacement of Notes are met.
If required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Trustee and the
Company may charge the Holder for their expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and shall be
entitled to all of the benefits of this Indenture equally and proportionately
with all other Notes duly issued hereunder.
SECTION 2.8. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those
reductions in the interest in a Global Note effected by the Trustee or the Note
Custodian in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.9 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.7 hereof, it shall cease to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser for value.
If the principal amount of any Note is considered paid under Section 4.1 hereof,
it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate of any
thereof) holds, on a Redemption Date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such Notes shall be
deemed to be no longer outstanding and shall cease to accrue interest.
SECTION 2.9. TREASURY NOTES.
In determining whether the Holders of the required principal amount of Notes
have concurred in any direction, waiver or consent, Notes owned by the Company
or by any Affiliate thereof shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver of consent, only Notes that a
Responsible Officer of the Trustee knows are so owned shall be so disregarded.
The Company agrees to notify the Trustee of the existence of any such treasury
Notes or Notes owned by an Affiliate thereof.
SECTION 2.10. TEMPORARY NOTES.
Until Certificated Notes are ready for delivery, the Company may prepare and the
Trustee, upon receipt of an authentication order in accordance with Section 2.2
hereof, shall authenticate temporary Notes. Temporary Notes shall be
substantially in the form of Certificated Notes, but may have such variations as
the Company considers appropriate for temporary Notes and as shall be reasonably
acceptable to the Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Certificated Notes in exchange for
temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this
Indenture.
SECTION 2.11. CANCELLATION.
The Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to
them for registration of transfer, exchange or payment. The Trustee and no one
else shall cancel all Notes surrendered for registration of transfer, exchange,
payment, replacement or cancellation and shall return all canceled Notes to the
Company. The Company may not issue new Notes to replace Notes that have been
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, the Company shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.1 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date, provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or,
upon the written request of the Company, the Trustee in the name and at the
expense of the Company) shall mail or cause to be mailed to Holders a notice
that states the special record date, the related payment date and the amount of
such interest to be paid.
SECTION 2.13. PERSONS DEEMED OWNERS.
Prior to due presentment of a Note for registration of transfer and subject to
Section 2.12 hereof, the Company, the Trustee, any Paying Agent, any co-
registrar and any Registrar may deem and treat the person in whose name any Note
shall be registered upon the register of Notes kept by the Registrar as the
absolute owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of the ownership or other writing thereon made by
anyone other than the Company, any co-registrar or any Registrar) for the
purpose of receiving all payments with respect to such Note and for all other
purposes, and none of the Company, the Trustee, any Paying Agent, any co-
registrar or any Registrar shall be affected by any notice to the contrary.
SECTION 2.14. CUSIP NUMBERS.
The Company in issuing the Notes may use a "CUSIP" number, and if so, the
Trustee shall use the CUSIP number in notices of redemption or exchange as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Notes, and that reliance may be placed only on
the other identification numbers printed on the Notes.
SECTION 2.15. DESIGNATION.
The Indebtedness evidenced by the Notes is hereby irrevocably designated as
"senior indebtedness" or such other term denoting seniority (i) for all purposes
of the provisions defining subordination contained in agreements that provide
that the Indebtedness of the Company issued pursuant to such agreements is
subordinate to Indebtedness designated as senior indebtedness and (ii) for the
purposes of any future Indebtedness of the Company which the Company expressly
makes subordinate to any senior indebtedness or such other term denoting
seniority. In connection with the issuance of any such future subordinated
Indebtedness, the Company shall take all necessary steps to effectuate the
foregoing.
ARTICLE III.
REDEMPTION AND REPURCHASE
SECTION 3.1. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the provisions of Section 3.7
hereof, it shall furnish to the Trustee, at least 45 days but not more than 60
days before the Redemption Date, an Officers' Certificate of the Company setting
forth the Section of this Indenture pursuant to which the redemption shall
occur, the Redemption Date, the principal amount of Notes to be redeemed and the
Redemption Price.
If the Company is required to offer to repurchase Notes pursuant to the
provisions of Section 4.14 or 4.16 hereof, it shall notify the Trustee in
writing, at least 30 days but not more than 60 days before the Purchase Date, of
the Section of this Indenture pursuant to which the repurchase shall occur, the
Purchase Date, the principal amount of Notes required to be repurchased and the
Purchase Price and shall furnish to the Trustee an Officers' Certificate of the
Company to the effect that (a) the Company is required to make or has made a
Change of Control Offer or an Asset Sale Offer, as the case may be, and (b) the
conditions set forth in Section 4.14 or 4.16 hereof, as the case may be, have
been satisfied.
If the Registrar is not the Trustee, the Company shall, concurrently with each
notice of redemption or repurchase, cause the Registrar to deliver to the
Trustee a certificate (upon which the Trustee may rely) setting forth the
principal amounts of Notes held by each Holder.
SECTION 3.2. SELECTION OF NOTES.
If less than all of the Notes are to be redeemed, the Trustee shall select the
Notes or portions thereof to be redeemed by lot, pro rata or by such other
method as the Trustee shall deem fair and appropriate. In the event of partial
redemption by lot, the particular Notes or portions thereof to be redeemed shall
be selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the Redemption Date by the Trustee from the outstanding Notes not
previously called for redemption.
If less than all of the Notes tendered are to be repurchased pursuant to the
provisions of Section 4.16 hereof, the Trustee shall select the Notes or
portions thereof to be repurchased on a pro rata basis (with such adjustments as
may be deemed appropriate by the Trustee so that only Notes in denominations of
$1,000, or integral multiples thereof, shall be repurchased).
The Trustee shall promptly notify the Company in writing of the Notes or
portions thereof selected for redemption or repurchase and, in the case of any
Note selected for partial redemption or repurchase, the principal amount thereof
to be redeemed or repurchased. Notes and portions thereof selected shall be in
amounts of $1,000 or integral multiples of $1,000; except that if all of the
Notes of a Holder are to be redeemed, the entire outstanding amount of Notes
held by such Holder, even if not a multiple of $1,000, shall be redeemed.
SECTION 3.3. NOTICE OF OPTIONAL REDEMPTION.
In the event Notes are to be redeemed pursuant to Section 3.7 hereof, at least
30 days but not more than 60 days before the Redemption Date, the Company shall
mail a notice of redemption to each Holder whose Notes are to be redeemed in
whole or in part at its registered address, with a copy to the Trustee.
The notice shall identify the Notes or portions thereof to be redeemed,
including CUSIP numbers, and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the
Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price, Liquidated Damages, if
any, and accrued interest thereon to the Redemption Date;
(f) that, unless the Company defaults in making the redemption
payment, interest and any Liquidated Damages on Notes called for
redemption will cease to accrue on and after the Redemption Date, and
the only remaining right of the Holders of such Notes is to receive
payment of the Redemption Price, any Liquidated Damages and accrued
interest thereon to the Redemption Date upon surrender to the Paying
Agent of the Notes redeemed;
(g) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portions thereof) to be
redeemed, as well as the aggregate principal amount of the Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption; and
(h) the paragraph of the Notes pursuant to which the Notes
called for redemption are being redeemed.
If the Redemption Date is on or after an interest record date and on or before
the related Interest Payment Date, any accrued and unpaid interest and
Liquidated Damages, if any, in each case to the Redemption Date shall be paid to
the Person in whose name a Note is registered at the close of business on such
record date, and no additional interest or Liquidated Damages shall be payable
to Holders pursuant to the redemption.
At the Company's request, the Trustee shall give the notice of redemption in the
Company's name and at its expense; provided that the Company shall deliver to
the Trustee, at least 40 days prior to the Redemption Date, an Officers'
Certificate of the Company requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in the
preceding paragraph.
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Notes or portions thereof called for
redemption become due and payable on the Redemption Date at the Redemption
Price. Upon surrender to any Paying Agent, such Notes or portions thereof shall
be paid at the Redemption Price, plus Liquidated Damages, if any, and accrued
interest to the Redemption Date; provided, however, that installments of
interest which are due and payable on or prior to the Redemption Date shall be
payable to the Holders of such Notes, registered as such, at the close of
business on the relevant record date for the payment of such installment of
interest.
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE OR PURCHASE PRICE.
On or before each Redemption Date or Purchase Date, the Company shall
irrevocably deposit with the Trustee or with the Paying Agent money sufficient
to pay the aggregate amount due on all Notes to be redeemed or repurchased on
that date, including without limitation any accrued and unpaid interest and
Liquidated Damages, if any, to the Redemption Date or the Purchase Date. Upon
written request by the Company, the Trustee or the Paying Agent shall promptly
return to the Company any money not required for that purpose.
Unless the Company defaults in making such payment, interest and any Liquidated
Damages on the Notes to be redeemed or repurchased will cease to accrue on the
applicable Redemption Date or Purchase Date, whether or not such Notes are
presented for payment. If any Note called for redemption or required to be
accepted for repurchase shall not be so paid upon surrender because of the
failure of the Company to comply with the preceding paragraph, interest will be
paid on the unpaid Redemption Price or Purchase Price, from the applicable
Redemption Date or Purchase Date until such amount is paid, and on any interest
and Liquidated Damages not paid on such amount, in each case at the rate
provided in the Notes and in Section 4.1 hereof.
SECTION 3.6. NOTES REDEEMED OR REPURCHASED IN PART.
Upon surrender of a Note that is redeemed or repurchased in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Note equal in principal amount to portion of the Note
surrendered that is not to be redeemed or repurchased.
SECTION 3.7. OPTIONAL REDEMPTION.
(a) The Notes will not be redeemable at the Company's option prior to
August 1, 2002. Thereafter, the Notes will be subject to redemption at the
option of the Company, in whole or in part, upon not less than 30 nor more than
60 days' notice, at the Redemption Prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest and Liquidated
Damages, if any, thereon to the applicable Redemption Date, if redeemed during
the twelve-month period beginning on August 1 of the years indicated below:
Redemption Redemption
Date Price
2002 104.813%
2003 103.208%
2004 101.604%
2005 and thereafter 100.000%
Notwithstanding the foregoing, prior to August 1, 2000, the Company may in
its discretion redeem up to an aggregate of $25 million in principal amount of
the Notes at a Redemption Price of 109.625% of the principal amount thereof, in
each case plus accrued and unpaid interest and Liquidated Damages, if any,
thereon to the Redemption Date, with the net proceeds of one or more Public
Equity Offerings of Qualified Capital Stock of the Company; provided, that at
least $75 million in aggregate principal amount of the Notes remain outstanding
immediately after the occurrence of such redemption; and provided, further, that
such redemption shall occur within 90 days of the date of the closing of such
Public Equity Offering of Qualified Capital Stock of the Company.
(b) Any redemption pursuant to this Section 3.7 shall be made pursuant to
the provisions of Sections 3.1 through 3.6 hereof.
SECTION 3.8. REPURCHASE UPON CHANGE OF CONTROL OFFER.
In the event that, pursuant to Section 4.14 hereof, the Company shall be
required to commence a Change of Control Offer, it shall follow the procedures
specified below.
The Change of Control Offer shall remain open for a period from the date of the
mailing of the notice of the Change of Control Offer described in the next
paragraph until a date determined by the Company which is at least 30 but no
more 60 days after the date of mailing of such notice and no longer, except to
the extent that a longer period is required by applicable law (the "Change of
Control Offer Period"). On the Purchase Date, which shall be no later than the
last day of the Change of Control Offer Period, the Company shall purchase the
principal amount of Notes properly tendered in response to the Change of Control
Offer. Payment for any Notes so purchased shall be made in the same manner as
interest payments are made.
Immediately following any Change of Control, the Company shall send, by first
class mail, a notice to the Trustee and each of the Holders. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Change of Control Offer. The Change of Control
shall be made to all Holders. The notice, which shall govern the terms of the
Change of Control Offer, shall state:
(a) the transaction or transactions that constitute the Change
of Control, providing information, to the extent publicly available,
regarding the Person or Persons acquiring control, and stating that
the Change of Control Offer is being made pursuant to this Section 3.8
and Section 4.14 hereof and that, to the extent lawful, all Notes
tendered will be accepted for payment;
(b) the Purchase Price, the last day of the Change of Control
Offer Period, and the Purchase Date;
(c) that any Note not properly tendered will continue to accrue
interest and Liquidated Damages, if any;
(d) that, unless the Company defaults in the payment of the
amount due on the Purchase Date, all Notes or portions thereof
accepted for repurchase pursuant to the Change of Control Offer shall
cease to accrue interest and Liquidated Damages, if any, on the
Purchase Date;
(e) that Holders electing to have any Notes purchased pursuant
to the Change of Control Offer will be required to tender the Notes,
with the form entitled "Option of Holder To Elect Purchase" on the
reverse of the Notes completed, or transfer by book-entry transfer, to
the Company, a Depositary, if appointed by the Company, or a Paying
Agent at the address specified in the notice not later than the third
Business Day preceding the Purchase Date;
(f) that Holders will be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the close of business on the Business Day
immediately preceding the Purchase Date, a telegram, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of Notes delivered for repurchase, and a statement
that such Holder is withdrawing his election to have the Notes
redeemed in whole or in part; and
(g) that Holders whose Notes are being repurchased only in part
will be issued new Notes equal in principal amount to the portion of
the Notes tendered (or transferred by book-entry transfer) that is not
to be repurchased, which portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
On the Purchase Date, the Company, shall, to the extent lawful, (i) accept for
payment all Notes or portions thereof properly tendered pursuant to the Change
of Control Offer, (ii) deposit with the Paying Agent an amount equal to the
Purchase Price, together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Purchase Date in respect of all Notes or
portions thereof so tendered and accepted for repurchase and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate of the Company stating the aggregate principal amount of
Notes or portions thereof being repurchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so repurchased the amount due in
connection with such Notes, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company in the form of an Officers'
Certificate of the Company shall authenticate and mail or deliver (or cause to
be transferred by book entry) to each relevant Holder a new Note, in a principal
amount equal to any unpurchased portion of the Notes surrendered, if any, to the
Holder thereof; provided, that each such new Note shall be in a principal amount
of $1,000 or an integral multiple thereof. The Company shall publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Purchase Date.
If the Purchase Date is on or after an interest record date and on or before the
related Interest Payment Date, any accrued and unpaid interest and Liquidated
Damages, if any, in each case to the Purchase Date, shall be paid to the Person
in whose name a Note is registered at the close of business on such record date,
and no additional interest or Liquidated Damages shall be payable to Holders
pursuant to the Change of Control Offer.
SECTION 3.9. REPURCHASE UPON APPLICATION OF AVAILABLE AMOUNT.
In the event that, pursuant to Section 4.16 hereof, the Company shall be
required to commence an Asset Sale Offer, it shall follow the procedures
specified below.
The Asset Sale Offer shall remain open for a period from the date of the mailing
of the notice of the Asset Sale Offer described in the next paragraph until a
date determined by the Company which is at least 30 but no more 60 days after
the date of mailing of such notice and no longer, except to the extent that a
longer period is required by applicable law (the "Asset Sale Offer Period"). On
the Purchase Date, which shall be no later than the last day of the Asset Sale
Offer Period, the Company shall purchase the principal amount of Notes required
to be purchased pursuant to Section 4.16 hereof (the "Offer Amount") or, if less
than the Offer Amount has been properly tendered, all Notes properly tendered in
response to the Asset Sale Offer. Payment for any Notes so purchased shall be
made in the same manner as interest payments are made.
Within 30 days following the accumulation of an Available Amount sufficient to
obligate the Company to commence an Asset Sale Offer, the Company shall send, by
first class mail, a notice to the Trustee and each of the Holders. The notice
shall contain all instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer shall be
made to all Holders. The notice, which shall govern the terms of the Asset Sale
Offer, shall state:
(a) that the Asset Sale Offer is being made pursuant to this
Section 3.9 and Section 4.16 hereof;
(b) the Offer Amount, the Purchase Price, the last day of the
Asset Sale Offer Period, and the Purchase Date;
(c) that any Note not properly tendered or otherwise not
accepted for repurchase shall continue to accrue interest and
Liquidated Damages, if any;
(d) that, unless the Company defaults in the payment of the
amount due on the Purchase Date, all Notes or portions thereof
accepted for repurchase pursuant to the Asset Sale Offer shall cease
to accrue interest and Liquidated Damages, if any, on the Purchase
Date;
(e) that Holders electing to have any Notes repurchased pursuant
to any Asset Sale Offer shall be required to tender the Notes, with
the form entitled "Option of Holder To Elect Purchase" on the reverse
of the Notes completed, or transfer by book-entry transfer, to the
Company, a Depositary, if appointed by the Company, or a Paying Agent
at the address specified in the notice prior to the close of business
on the third Business Day preceding the Purchase Date;
(f) that Holders will be entitled to withdraw their election if
the Company, the Depositary or the Paying Agent, as the case may be,
receives, not later than the close of business on the Business Day
immediately preceding the Purchase Date, a telegram, facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for repurchase and a statement
that such Holder is withdrawing his election to have such Notes
repurchased in whole or in part;
(g) that, if the aggregate principal amount of Notes tendered
for repurchase by Holders exceeds the Offer Amount, the Trustee shall
select the Notes or portions thereof to be purchased on a pro rata
basis (with such adjustments as may be deemed appropriate by the
Trustee so that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased); and
(h) that Holders whose Notes are being repurchased only in part
will be issued new Notes equal in principal amount to the portion of
the Notes tendered (or transferred by book-entry transfer) that is not
to be repurchased, which portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
On the Purchase Date, the Company shall, to the extent lawful, (i) accept for
payment, on a pro rata basis in accordance with this Indenture to the extent
necessary, the Offer Amount of Notes or portions thereof properly tendered
pursuant to the Asset Sale Offer, or if less than the Offer Amount has been
tendered, all Notes properly tendered, (ii) deposit with the Paying Agent an
amount equal to the Purchase Price, plus accrued and unpaid interest and
Liquidated Damages, if any, thereon to the Purchase Date in respect of all Notes
or portions thereof so tendered and accepted for repurchase and (iii) deliver or
cause to be delivered to the Trustee the Notes so accepted together with an
Officers' Certificate of the Company stating the aggregate principal amount of
Notes or portions thereof being repurchased by the Company. The Paying Agent
shall promptly mail to each Holder of Notes so tendered the amount due in
connection with such Notes, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company in the form of an Officers'
Certificate of the Company shall authenticate and mail or deliver (or cause to
be transferred by book entry) such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Notes surrendered, if any;
provided, that each such new Note shall be in a principal amount of $1,000 or an
integral multiple thereof. The Company shall publicly announce the results of
the Asset Sale Offer on or as soon as practicable after the Purchase Date. Upon
completion of an Asset Sale Offer, the Available Amount shall be reset at zero.
If the Purchase Date is on or after an interest record date and on or before the
related Interest Payment Date, any accrued and unpaid interest and Liquidated
Damages, if any, in each case to the Purchase Date, shall be paid to the Person
in whose name a Note is registered at the close of business on such record date,
and no additional interest or Liquidated Damages shall be payable to Holders to
the Asset Sale Offer.
ARTICLE IV.
COVENANTS
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST.
The Company shall pay or cause to be paid the principal, Redemption Price and
Purchase Price of, and interest on the Notes on the dates, in the amounts and in
the manner provided herein and in the Notes. Principal, Redemption Price,
Purchase Price and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company, holds as of 12:00 noon Eastern Time on
the due date money deposited by the Company in immediately available funds and
designated for and sufficient to pay the aggregate amount then due. The Company
shall pay all Liquidated Damages, if any, on the dates, in the amounts and in
the manner set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue principal, Redemption Price and
Purchase Price at the rate equal to 1% per annum in excess of the then
applicable interest rate on the Notes to the extent lawful; it shall pay
interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Liquidated Damages
(without regard to any applicable grace period) at the same rate to the extent
lawful.
SECTION 4.2. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of New York, an
office or agency (which may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
or its obligations to maintain an office or agency in the Borough of Manhattan,
the City of New York, for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one
such office or agency of the Company in accordance with Section 2.3. The
Trustee may resign such agency at any time by giving written notice to the
Company no later than 30 days prior to the effective date of such resignation.
SECTION 4.3. REPORTS.
Whether or not required by the rules and regulations of the Commission, so long
as any of the Notes are outstanding, the Company shall furnish to the Holders of
the Notes, within 15 days after they are or would have been required to file
such with the Commission, (i) all quarterly and annual financial information
that would be required to be contained in filings with the Commission on Forms
10-Q and 10-K if the Company were required to file such forms, including
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to annual consolidated financial statements and
schedules only, a report thereon by the certified independent accountants of the
Company, and (ii) all information that would be required to be contained in
filings with the Commission on Form 8-K if the Company were required to file
such form. In addition, whether or not required by the rules and regulations of
the Commission, the Company shall file a copy of all such information and
reports with the Commission for public availability (unless the Commission will
not accept such a filing) and make such information available to securities
analysts and prospective investors upon request. Upon qualification of this
Indenture under the TIA, the Company shall at all times comply with TIA s.
314(a). In addition, the Company shall for so long as any Notes remain
outstanding, to furnish to the Holders, and to securities analysts and
prospective investors upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.4. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 60 days after the end of
each fiscal quarter, and within 90 days after the end of each fiscal year, an
Officers' Certificate of the Company stating that a review of the activities of
the Company and its Subsidiaries during the preceding fiscal period has been
made under the supervision of the signing Officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture in all material respects, and further stating, as to each
such Officer signing such certificate, that to the best of his or her knowledge
the Company has kept, observed, performed and fulfilled each and every covenant
contained in the Indenture in all material respects and is not in Default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (and, if a Default or Event of Default shall have occurred, describing
each such Default or Event of Default and its status with particularity) of
which he or she may have knowledge, and that to the best of his or her knowledge
no event has occurred and remains in existence by reason of which payments on
account of the principal of or interest, if any, on the Notes is prohibited or
if such event has occurred, a description of the event. The Officers'
Certificate shall also include all calculations necessary to show covenant
compliance. 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) So long as not contrary to the then current recommendations of the American
Institute of Certified Public Accountants, the year-end financial statements
delivered pursuant to Section 4.3 above shall be accompanied by a written
statement of the independent public accountants (who shall be a firm of
established national reputation) of the Company that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article IV or Article V hereof, or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding, deliver to
the Trustee, forthwith (and in any event within five days) upon any of its
Officers becoming aware of any Default or Event of Default an Officers'
Certificate of the Company specifying such Default or Event of Default.
SECTION 4.5. TAXES.
The Company shall pay or discharge, and shall cause each of its Subsidiaries to
pay or discharge, prior to delinquency, all material taxes, assessments, and
governmental levies except such as are contested in good faith and by
appropriate proceedings or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
SECTION 4.6. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so) that it shall
not at any time insist upon, plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay, extension or usury law wherever enacted,
now or at any time hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it shall not, by resort to any such law, hinder, delay
or impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though such law had not
been enacted.
SECTION 4.7. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly: (i) declare or pay any dividend or make any other payment or
distribution in respect of the Equity Interests in the Company or any of its
Subsidiaries (including, without limitation, any payment in connection with any
merger or consolidation involving the Company) or to the direct or indirect
holders of the Equity Interests in the Company or any of its Subsidiaries in
their capacity as such (other than dividends or distributions payable in Equity
Interests (other than Disqualified Stock) of the Company or dividends or
distributions payable to the Company or any Wholly Owned Subsidiary of the
Company); (ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any direct or indirect parent of the Company
or other Affiliate of the Company (other than a Wholly Owned Subsidiary of the
Company); (iii) make any principal payment on, or purchase, redeem, defease
(including in-substance or legal defeasance) or otherwise acquire or retire for
value (including pursuant to mandatory repurchase covenants), prior to any
scheduled maturity, scheduled repayment or scheduled sinking fund payment, any
Indebtedness that is subordinated to the Notes; or (iv) make any Restricted
Investment (all such payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted Payments"), unless, at
the time of and after giving effect to such Restricted Payment:
(a) immediately before and after giving effect to such
transaction, no Default or Event of Default shall have occurred and be
continuing or would occur as a consequence thereof;
(b) the Company would, at the time of such Restricted Payment
and after giving pro forma effect thereto as if such Restricted
Payment had been made at the beginning of the applicable four-quarter
period, have been permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Consolidated Cash Flow Ratio test set
forth in the first paragraph of Section 4.9 hereof; and
(c) such Restricted Payment, together with the aggregate of all
other Restricted Payments made by the Company and its Subsidiaries
after the Issue Date (excluding Restricted Payments permitted by
clauses (2) and (3) of the next succeeding paragraph), is less than
the sum of:
(i) $2.5 million, plus
(ii) 50% of the cumulative Consolidated Net Income of
the Company for the period (taken as one accounting period)
from the beginning of the fiscal quarter commencing
immediately prior to the Issue Date to the end of the
Company's most recently ended fiscal quarter for which
internal financial statements are available at the time of
such Restricted Payment (or, if such Consolidated Net Income
for such period is a deficit, less 100% of such deficit),
plus
(iii) 100% of the aggregate net cash proceeds received
by the Company from the issue or sale since the Issue Date
and prior to the date of such Restricted Payment of Equity
Interests of the Company or of debt securities of the
Company that have been converted into or exchanged for such
Equity Interests (other than Equity Interests (or
convertible debt securities) sold to a Subsidiary of the
Company and other than Disqualified Stock or debt securities
that have been converted into Disqualified Stock), and from
the exercise of options, warrants or other rights to
purchase such Equity Interests (other than Disqualified
Stock), less any such proceeds used to redeem Notes in
accordance with the second paragraph of Section 3.7(a), plus
(iv) the aggregate amount of all Restricted Payments
that are returned, repaid or distributed, without
restriction, to the Company or any Wholly Owned Subsidiary
if and to the extent that such amounts are not included in
Consolidated Net Income.
The foregoing provisions shall not prohibit:
(1) the payment of any dividend within 60 days after the date of
declaration thereof, if at said date of declaration such payment would
have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement or other acquisition
of any Equity Interests of the Company in exchange for, or out of the
proceeds of, the substantially concurrent sale (other than to a
Subsidiary of the Company) of other Equity Interests of the Company
(other than Disqualified Stock); provided that the amount of any such
net cash proceeds that are utilized for any such redemption,
repurchase, retirement or other acquisition shall be excluded from the
calculation of Restricted Payments in clause (c)(iii) of the preceding
paragraph and shall not constitute a Restricted Payment;
(3) the defeasance, redemption, repurchase or payment of
principal of Indebtedness that is subordinated to the Notes with the
net cash proceeds from an incurrence of Permitted Refinancing Debt or
the substantially concurrent sale (other than to a Subsidiary of the
Company) of Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that
are utilized for any such redemption, repurchase, retirement or other
acquisition shall be excluded from the calculation of Restricted
Payments in clause (c)(iii) of the preceding paragraph and shall not
constitute a Restricted Payment;
(4) the payment of mandatory dividends on, and the mandatory
redemption of, the Series A Preferred Stock; and
(5) the making of Permitted Investments.
If any Person in which an Investment is made, which Investment constitutes a
Restricted Payment when made, thereafter becomes a Wholly Owned Subsidiary, all
such Investments previously made in such Person shall no longer be counted as
Restricted Payments for purposes of calculating the aggregate amount of
Restricted Payments pursuant to clause (c) above, in each case to the extent
such Investments would otherwise be so counted.
If the Company or a Subsidiary transfers, conveys, sells, leases or otherwise
disposes of an Investment in accordance with Section 4.16, which Investment was
originally included in the aggregate amount expended or declared for all
Restricted Payments pursuant to clause (c) of the definition of "Restricted
Payments," the aggregate amount expended or declared for all Restricted Payments
shall be reduced by the lesser of (i) the Net Proceeds from the transfer,
conveyance, sale, lease or other disposition of such Investment or (ii) the
amount of the original Investment, in each case, to the extent originally
included in the aggregate amount expended or declared for all Restricted
Payments pursuant to clause (c) above.
The amount of all Restricted Payments (other than cash) shall be the Fair Market
Value on the date of the Restricted Payment of the asset(s) proposed to be
transferred by the Company or such Subsidiary, as the case may be, pursuant to
the Restricted Payment. Not later than the date of making any Restricted
Payment, the Company shall deliver to the Trustee an Officers' Certificate of
the Company stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.7 were
computed, which calculations may be based upon the Company's latest available
financial statements.
SECTION 4.8. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING
SUBSIDIARIES.
The Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of such Subsidiary to:
(i)(a) pay dividends or make any other distributions to the
Company or any of its Subsidiaries (1) on its Capital Stock or (2)
with respect to any other interest or participation in, or measured
by, its profits, or (b) pay any Indebtedness owed to the Company or
any of its Subsidiaries,
(ii) make loans or advances to the Company or any of its
Subsidiaries, or
(iii) transfer any of its properties or assets to the Company or
any of its Subsidiaries,
except for such encumbrances or restrictions existing under or by reason of:
(a) Existing Indebtedness as in effect on the date hereof,
(b) the Amended Credit Facility or the Amended DeSoto Credit
Facility,
(c) this Indenture and the Notes,
(d) applicable law,
(e) any instrument or agreement governing Acquired Debt of the
Company or any of its Subsidiaries or Capital Stock of a Person
acquired by the Company or any of its Subsidiaries as in effect at the
time of such acquisition (except to the extent such Acquired Debt was
incurred or such Capital Stock was issued in connection with or in
contemplation of such acquisition), which encumbrance or restriction
is not applicable to any Person, or the properties or assets of any
Person, other than the Person, or the property or assets of the
Person, so acquired, provided that in the case of Indebtedness, such
Indebtedness was permitted by the terms of this Indenture to be
incurred and provided, further, that the Consolidated Cash Flow of
such Person is not taken into account in determining whether such
Indebtedness is permitted,
(f) by reason of customary non-assignment provisions in leases
entered into in the ordinary course of business and consistent with
past practices,
(g) purchase money obligations for property acquired in the
ordinary course of business that impose restrictions of the nature
described in clause (iii) above on the property so acquired, or
(h) Permitted Refinancing Debt, provided that the restrictions
contained in the agreements governing such Permitted Refinancing Debt
are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced.
SECTION 4.9. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF PREFERRED STOCK.
The Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly, incur any Indebtedness (including Acquired Debt) and the Company
shall not issue any Disqualified Stock and shall not permit any of its
Subsidiaries to issue any shares of Disqualified Stock or Preferred Stock (other
than to the Company or a Wholly Owned Subsidiary of the Company); in each case,
except for Permitted Indebtedness, provided that no Default or Event of Default
exists immediately before and after giving effect to such transaction; provided,
however, that the Company (but not any of its Subsidiaries) may incur
Indebtedness (including Acquired Debt) and the Company (but not any of its
Subsidiaries) may issue shares of Disqualified Stock, if (i) immediately before
and after giving effect to such transaction, no Default or Event of Default
exists and (ii) the Company's Consolidated Cash Flow Ratio for the Company's
most recently ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least 2.5 to 1.0, determined on a pro forma basis (including a pro forma
application of the net proceeds therefrom), as if the additional Indebtedness
had been incurred, or the Disqualified Stock had been issued, as the case may
be, at the beginning of such four-quarter period.
SECTION 4.10. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its Subsidiaries to, conduct
any business with or enter into or suffer to exist any transaction or series of
transactions, make any payment to, or sell, lease, transfer or otherwise dispose
of any of its properties or assets to, or render any service to, or purchase any
property or assets from, or enter into or make or amend any contract, agreement,
understanding, loan, advance or guarantee with, or for the benefit of, any
Affiliate (each of the foregoing, an "Affiliate Transaction"), unless:
(i) such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Subsidiary than those that
could have been reasonably obtained in a comparable transaction by the
Company or such Subsidiary with an unrelated Person and
(ii) the Company delivers to the Trustee (a) with respect to any
Affiliate Transaction or series of related Affiliate Transactions
involving aggregate consideration in excess of $1.0 million, a
resolution of the Board set forth in an Officers' Certificate of the
Company certifying that such Affiliate Transaction complies with
clause (i) above and that such Affiliate Transaction has been approved
by a majority of the disinterested members of the Board and (b) with
respect to any Affiliate Transaction or series of related Affiliate
Transactions involving aggregate consideration in excess of $10.0
million, an opinion as to the fairness to the Company of such
Affiliate Transaction from a financial point of view issued by an
accounting, appraisal or investment banking firm of national standing;
provided that (w) the indemnification of officers and directors of the Company
or its Subsidiaries in accordance with the charters and by-laws of the Company
and its Subsidiaries or pursuant to director indemnification agreements, (x) any
employment agreement entered into by the Company or any of its Subsidiaries in
the ordinary course of business and consistent with the past practice of the
Company or such Subsidiary, (y) transactions between or among the Company and/or
its Wholly Owned Subsidiaries and (z) Restricted Payments and Permitted
Investments that are permitted by the provisions of Section 4.7 of this
Indenture in each case, shall not be deemed Affiliate Transactions.
SECTION 4.11. LIENS.
The Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly, create, incur, assume or suffer to exist any Lien of any kind,
except Permitted Liens, on or with respect to any property or asset now owned or
hereafter acquired, or any interest therein, or any income or profits therefrom
or assign or convey any right to receive income therefrom.
SECTION 4.12. CONTINUED EXISTENCE.
Subject to Article V hereof, the Company shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its corporate
existence in accordance with the organizational documents (as the same may be
amended from time to time) of the Company and (ii) the material rights (charter
and statutory), licenses and franchises of the Company, except to the extent
that the Board determines in good faith that the preservation of such right,
license or franchise is no longer necessary or desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 4.13. INSURANCE MATTERS.
The Company shall provide or cause to be provided, for itself and each of its
Subsidiaries, insurance (including appropriate self-insurance) against loss or
damage of the kinds that, in the reasonable, good faith opinion of the Company,
are adequate and appropriate for the conduct of the business of the Company and
its Subsidiaries in a prudent manner, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall be
either (i) consistent with past practices of the Company or the applicable
Subsidiary or (ii) customary, in the reasonable, good faith opinion of the
Company, for corporations similarly situated in the industry, unless the failure
to provide such insurance (together with all other such failures) would not have
a material adverse effect on the financial condition or results of operations of
the Company and its Subsidiaries, taken as a whole.
SECTION 4.14. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
Upon the occurrence of a Change of Control, each Holder of Notes shall have the
right to require the Company to repurchase all or any part (equal to $1,000 or
an integral multiple thereof) of such Holder's Notes (a "Change of Control
Offer") at a Purchase Price in cash equal to 101% of the aggregate principal
amount thereof, together with accrued and unpaid interest and Liquidated
Damages, if any, thereon to the Purchase Date. The Change of Control Offer
shall be made in compliance with all applicable laws, including, without
limitation, 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 the Notes as a result of a Change of Control,
and the applicable procedures set forth in Article III hereof, and shall include
all instructions and materials necessary to enable Holders to tender their
Notes. The Company will not be required to make a Change of Control Offer upon
a Change of Control if a third party makes the Change of Control Offer in the
manner, at the times and otherwise in compliance with the requirements set forth
in this Indenture applicable to a Change of Control Offer made by the Company
and purchases all Notes validly tendered and not withdrawn under such Change of
Control Offer.
SECTION 4.15. PAYMENTS FOR CONSENT.
The Company shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
SECTION 4.16. ASSET SALES.
(a) The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, engage in an Asset Sale, unless (i) immediately before
and after giving effect to such transaction, no Default or Event of Default
exists, (ii) the Company (or the Subsidiary, as the case may be) receives
consideration at the time of such Asset Sale at least equal to the Fair Market
Value of the assets or Equity Interests issued or sold or otherwise disposed of,
(iii) if such Asset Sale involves Collateral it shall be in compliance with the
provisions of this Indenture and the Security Documents, (iv) at least 75% of
the consideration therefor received by the Company or such Subsidiary is in the
form of cash or Cash Equivalents; provided that the amount of (x) any
liabilities (as shown on the Company's or such Subsidiary's most recent balance
sheet) of the Company or any Subsidiary (other than contingent liabilities and
liabilities that are by their terms subordinated to the Notes) that are assumed
by the transferee of any such assets pursuant to an agreement that releases the
Company or such Subsidiary from further liability and (y) any securities
received by the Company or any such Subsidiary from such transferee that are
immediately converted by the Company or such Subsidiary into cash or Cash
Equivalents (to the extent of the cash or Cash Equivalents received), shall be
deemed to be cash or Cash Equivalents for purposes of this provision, and (v)
the Company or such Subsidiary shall apply the Net Proceeds of such Asset Sale
within 360 days of receipt thereof, as follows:
(A) first, to the extent such Net Proceeds are received from an Asset Sale
not involving the sale, transfer or disposition of Collateral ("Non-
Collateral Proceeds"), to repay any Indebtedness secured by the assets
involved in such Asset Sale or otherwise required to be repaid with the
proceeds thereof, and
(B) second, with respect to any Non-Collateral Proceeds remaining after
application pursuant to the preceding paragraph (A) and any Net Proceeds
received from an Asset Sale to the extent such assets constitute Collateral
("Collateral Proceeds" and, together with such remaining Non-Collateral
Proceeds, the "Available Amount"), the Company shall make an offer to
purchase (the "Asset Sale Offer") from all Holders of Notes, up to a
maximum principal amount (expressed as a multiple of $1,000) of Notes equal
to the Available Amount at a purchase price equal to 100% of the principal
amount thereof plus accrued and unpaid interest thereon, if any, to the
date of purchase; provided, however, that the Company will not be required
to apply pursuant to this paragraph (B) Net Proceeds received from any
Asset Sale if, and only to the extent that, such Net Proceeds are applied
to a Related Business Investment within 360 days of such Asset Sale and, if
the Net Proceeds so invested were Collateral Proceeds, the property and
assets constituting such Related Business Investment and any other non-cash
consideration received as a result of such Asset Sale are made subject to
the Lien of this Indenture and the applicable Security Documents pursuant
to the provisions of this Indenture and the applicable Security Documents;
provided, further, that if at any time any non-cash consideration received
by the Company or any 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, then such conversion or disposition shall be deemed
to constitute an Asset Sale hereunder and the Net Proceeds thereof shall be
applied in accordance with this Section 4.16; and provided, further, that
the Company may defer the Asset Sale Offer until there is an aggregate
unutilized Available Amount equal to or in excess of $10 million resulting
from one or more Asset Sales (at which time the entire unutilized Available
Amount, and not just the amount in excess of $10 million, shall be applied
as required pursuant to this paragraph). To the extent the Asset Sale
Offer is not fully subscribed to by Holders of the Notes, the Company or
any applicable Subsidiary may obtain a release of the unutilized portion of
the Available Amount from the Lien of the Security Documents in accordance
with Section 11.3.
All Net Proceeds received from the sale of assets constituting Collateral shall
constitute Trust Moneys and shall be delivered by the Company (or the applicable
Subsidiary of the Company) to the Trustee and be deposited in the Collateral
Account in accordance with this Indenture. Net Proceeds as deposited may be
withdrawn from the Collateral Account in accordance with Section 11.3 or 11.4.
(b) 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 the Notes as a result of an Asset Sale.
(c) The Company shall provide the Trustee with prompt notice of the
occurrence of an Asset Sale Offer. Such notice shall be accompanied by an
Officers' Certificate setting forth (i) a statement to the effect that the
Company or a Subsidiary of the Company has made an Asset Sale and (ii) the
aggregate principal amount of Notes offered to be purchased and the basis of
calculation in determining such aggregate principal amount.
(d) In the event of the transfer of substantially all (but not all)
of the property and assets of the Company and its Subsidiaries as an entirety to
a person in a transaction permitted under Article V hereof, the successor
corporation shall be deemed to have sold the properties and assets of the
Company and its Subsidiaries not so transferred for purposes of this Section
4.16, and shall comply with the provisions of this covenant 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 Subsidiaries deemed to be sold
shall be deemed to be Net Proceeds for purposes of this Section 4.16.
SECTION 4.17. LIMITATION ON SALE/LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any of its Subsidiaries to, enter
into any Sale/leaseback unless (i) such Sale/leaseback involves only the sale or
transfer of assets acquired after the Issue Date and not constituting
Collateral, (ii) the Company or such Subsidiary could have incurred indebtedness
in an amount equal to the Attributable Debt relating to such Sale/leaseback
pursuant to the Consolidated Cash Flow Ratio test set forth in Section 4.9,
(iii) the sale price in such Sale/leaseback is at least equal to the Fair Market
Value of the property that is the subject of such Sale/leaseback, and (iv) the
transfer of assets in such Sale/leaseback is permitted by, and the Company
applies the Net Proceeds of such transaction in compliance with, Section 4.16.
SECTION 4.18. FUTURE GUARANTEES.
The Company or any of its Wholly Owned Subsidiaries may transfer, in one
transaction or a series of related transactions, any Collateral to any Wholly
Owned Subsidiary of the Company, if such transferee Wholly Owned Subsidiary
shall (i) execute and deliver to the Trustee a supplemental indenture in form
reasonably satisfactory to the Trustee pursuant to which such Wholly Owned
Subsidiary shall unconditionally guarantee on a senior secured basis (secured by
the Collateral so transferred) all of the Company's obligations under the Notes
and this Indenture, (ii) take all necessary action to cause the Lien of the
Security Documents on such Collateral in favor of the Trustee to remain in full
force and effect at all times, (iii) deliver to the Trustee an opinion of
counsel that such supplemental indenture and any other documents required to
comply with clause (ii) above have been duly authorized, executed and delivered
by such Wholly Owned Subsidiary and the supplemental indenture and each such
other document constitutes a legal, valid, binding and enforceable obligation of
such Wholly Owned Subsidiary and (iv) take such further action and execute and
deliver such other documents specified in this Indenture or otherwise reasonably
requested by the Trustee to effectuate the foregoing.
SECTION 4.19. ISSUANCE AND SALE OF CAPITAL STOCK OF SUBSIDIARIES
The Company (a) will not, and will not permit any of its Subsidiaries to, issue,
transfer, convey, lease or otherwise dispose of any shares of Capital Stock of a
Subsidiary or securities convertible or exchangeable into, or options, warrants,
rights or any other interest with respect to, Capital Stock of a Subsidiary, to
any Person other than the Company or a Wholly Owned Subsidiary except in a
transaction consisting of a sale of all of the Capital Stock of any such
Subsidiary and that complies with Section 4.16 to the extent such Section
applies or (b) will not permit any Person, other than the Company or a Wholly
Owned Subsidiary, to own any Capital Stock of any Subsidiary, other than to the
extent such Person owns such Capital Stock on the date on which the Indenture is
entered into, and other than directors' qualifying shares and immaterial shares
to be owned by a Person in order to qualify such Subsidiary as a corporation
under the laws of the jurisdiction in which such Subsidiary is chartered or
incorporated.
SECTION 4.20. IMPAIRMENT OF SECURITY INTEREST.
The Company shall not, and shall not permit any of its Subsidiaries to, take or
omit to take any action, which action or omission might or would have the result
of affecting or impairing the security interest in favor of the Collateral
Agent, on behalf of the Trustee and the Holders, with respect to the Collateral,
and the Company shall not grant to any Person (other than the Collateral Agent
on behalf of the Trustee and the Holders) any interest whatsoever in the
Collateral, except, in either case, as expressly permitted by this Indenture and
the Security Documents.
SECTION 4.21. AMENDMENT TO SECURITY DOCUMENTS.
The Company will not amend, modify or supplement, or permit or consent to any
amendment, modification or supplement of, the Security Documents in any way
which would be adverse to the Holders.
SECTION 4.22. INSPECTION AND CONFIDENTIALITY.
(a) The Company shall, and shall cause each of its Subsidiaries to, permit
authorized representatives of the Trustee and the Collateral Agent to visit and
inspect the properties of the Company or its Subsidiaries, and any or all books,
records and documents in the possession of the Company relating to the
Collateral, and to make copies and take extracts therefrom and to visit and
inspect the Collateral, all upon reasonable prior notice and at such reasonable
times during normal business hours and as often as may be reasonably requested.
(b) The Trustee and the Collateral Agent and their respective authorized
representatives referred to in Section 4.22(a) agree not to use any information
obtained pursuant to this Section 4.22 for any unlawful purpose and to keep
confidential and not to disclose any such information to any person except that
(i) the recipient of the information may disclose any information that becomes
publicly available other than as a result of disclosure by such recipient, (ii)
the recipient of the information may disclose any information that its counsel
reasonably concludes is necessary to be disclosed by law, pursuant to any court
or administrative order or ruling or in any pending legal or administrative
proceeding or investigation after prior written notice, reasonable under the
circumstances, to the Company, and (iii) the recipient of the information may
disclose any information necessary to be disclosed pursuant to any provision of
the TIA or pursuant to this Indenture.
ARTICLE V.
SUCCESSORS
SECTION 5.1. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into any other Person
(whether or not the Company is the surviving corporation), or permit any other
Person to consolidate or merge with or into the Company, nor will the Company
sell, assign, transfer, lease, convey or otherwise dispose of all or
substantially all of its assets in one or more related transactions to another
corporation, Person or entity unless:
(i) the Company shall be the surviving corporation or the entity
or the Person formed by or surviving any such consolidation or merger
(if other than the Company), or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
(the "Surviving Entity"), is a corporation organized and existing
under the laws of the United States, any state thereof, or the
District of Columbia;
(ii) the Surviving Entity, if any, assumes by supplemental
indenture in a form reasonably satisfactory to the Trustee all of the
obligations of the Company under the Notes and this Indenture;
(iii) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing;
(iv) immediately after giving effect to such transaction, the
Consolidated Net Worth of the Company or the Surviving Entity, as the
case may be, would be at least equal to the Consolidated Net Worth of
the Company immediately prior to such transaction;
(v) immediately after giving effect to such transaction and after
giving pro forma effect thereto as if such transaction had occurred at
the beginning of the applicable four-quarter period, the Company or
the Surviving Entity, as the case may be, would be permitted to incur
at least $1.00 of additional Indebtedness pursuant to the Consolidated
Cash Flow Ratio test set forth in Section 4.9 hereof; and
(vi) in the case of a transfer of assets, the Surviving Entity
has acquired all or substantially all of the assets of the Company as
an entirety.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate of the Company to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1 hereof, the Surviving Entity 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 Surviving Entity had been named
as the Company herein; provided, however, that the predecessor Company shall not
be relieved from the obligation to pay the principal, Purchase Price or
Redemption Price of or interest or Liquidated Damages, if any, on the Notes
except in the case of a sale of all of the Company's assets that meets the
requirements of Section 5.1 hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
SECTION 6.1. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company defaults in the payment when due of interest or
Liquidated Damages, if any, on the Notes and such default continues
for a period of 30 days;
(b) the Company defaults in the payment when due of principal,
Redemption Price or Purchase Price of the Notes, whether at maturity,
upon redemption or repurchase or otherwise;
(c) the Company fails to comply with any of the provisions of
Section 3.8, 3.9, 4.7, 4.9, 4.11, 4.14, 4.16, 4.17, or 5.1 hereof;
(d) the Company fails to comply with any other covenant,
representation, warranty or other agreement in this Indenture or the
Notes and such failure to comply continues for a period of 30 days
after notice thereof from the Trustee or the Holders of at least 25%
in aggregate principal amount of the then outstanding Notes;
(e) a default occurs under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of
its Subsidiaries or the payment of which is Guaranteed by the Company
or any of such Subsidiaries, whether such Indebtedness or Guarantee
now exists, or is created after the date of this Indenture, which
default (a) is caused by a failure to pay principal of or premium, if
any, or interest on such Indebtedness prior to the expiration of the
grace period provided in such Indebtedness on the date of such default
(a "Payment Default") or (b) results in the acceleration of any such
Indebtedness prior to its express maturity and, in each case, the
principal amount of such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a
Payment Default or the maturity of which has been so accelerated,
aggregates $10 million or more;
(f) a final judgment or final judgments for the payment of money
are entered by a court or courts of competent jurisdiction against the
Company or any of its Subsidiaries and such judgment or judgments are
not paid, stayed or discharged (by operation of appeal or otherwise)
for a period of 60 days, provided that the aggregate of all such
judgments exceeds $10 million (excluding judgments to the extent
covered by insurance in respect of which coverage has not been
disclaimed or denied);
(g) any of the Security Documents ceases to be in full force and
effect or any of the Security Documents ceases to give the Trustee the
Liens, rights, powers and privileges purported to be created thereby
in any material respect; and
(h) the Company or any Subsidiary:
(i) commences a voluntary case under any Bankruptcy
Law,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a custodian or
receiver of it or for all or substantially all of its
property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is not paying its debts as they become
due; or
(i) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief in an involuntary case against the
Company or any Subsidiary;
(ii) appoints a custodian or receiver of the Company or
any Subsidiary or for all or substantially all of the
property of any of the foregoing;
(iii) orders the liquidation of the Company or any
Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.2. ACCELERATION.
If any Event of Default occurs and is continuing, the Trustee or the Holders of
at least 25% in principal amount of the then outstanding Notes by written notice
to the Company (and the Trustee, if such notice is given by such Holders) may
declare all the Notes to be due and payable immediately. Upon any such
declaration, the entire principal amount of, and accrued and unpaid interest and
Liquidated Damages, if any, on the Notes shall become immediately due and
payable, unless all Events of Default specified in such acceleration notice
(other than any Event of Default in respect of non-payment of principal,
Redemption Price, Purchase Price, or interest, if any, which has become due
solely by reason of such declaration of acceleration) shall have been cured.
Notwithstanding the foregoing, if an Event of Default specified in clause (h) or
(i) of Section 6.1 hereof occurs with respect to the Company or any Subsidiary,
all outstanding Notes shall be due and payable immediately without further
action or notice.
The Trustee may withhold from Holders of the Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal, Redemption Price, Purchase Price, interest or
Liquidated Damages, if any) if it determines in good faith that withholding
notice is in their interest.
SECTION 6.3. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal, Redemption Price, Purchase
Price, interest or Liquidated Damages, if any, on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
If an Event of Default occurs under the Indenture and a declaration of
acceleration of the Notes occurs as a result thereof, the Trustee, on behalf of
the Holders of the Notes, in addition to any rights or remedies available to it
hereunder, may take such action as it deems advisable to protect and enforce its
rights in the Collateral, including the institution of foreclosure proceedings.
The Trustee may maintain a proceeding even if it does not possess any of the
Notes or does not produce any of them in the proceeding, and any recovery or
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 Notes. A delay or omission by the
Trustee or any Holder in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.4. WAIVER OF PAST DEFAULTS; RECISSION OF ACCELERATION
Holders of all of the aggregate principal amount of the then outstanding Notes
by notice to the Trustee may, on behalf of the Holders of all of the Notes,
waive an existing Default or Event of Default and its consequences hereunder
with regard to a continuing Default or Event of Default in the payment of the
principal, Redemption Price or Purchase Price of, or interest or Liquidated
Damages, if any, on the Notes. Except as provided in the immediately preceding
sentence, Holders of not less than a majority in aggregate principal amount of
the then outstanding Notes by notice to the Trustee may, on behalf of the
Holders of all of the Notes, waive an existing Default or Event of Default and
its consequences hereunder for all Defaults or Events of Default arising from
provisions of this Indenture. 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. After a
declaration of acceleration has been made, but before a judgment or decree for
payment of the money due has been obtained by the Trustee, the Holders of not
less than a majority in aggregate principal amount of Notes outstanding, by
written notice to the Company and the Trustee, may annul such declaration if (i)
the Company has paid or deposited with the Trustee a sum sufficient to pay (a)
all sums paid or advanced by the Trustee under the Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, (b) all overdue interest and Liquidated Damages, if any, on all
Notes, and (c) to the extent that payment of such interest is lawful, interest
upon overdue interest and Liquidated Damages, if any, at the rate borne by the
Notes; and (ii) all Events of Default, other than the non-payment of principal
of the Notes which has become due solely by such declaration of acceleration,
have been cured or waived.
SECTION 6.5. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding Notes may
direct the time, method and place of conducting any proceeding for exercising
any remedy available to the Trustee or exercising any trust or power conferred
on it. However, the Trustee may refuse to follow any direction that conflicts
with applicable law or this Indenture that the Trustee reasonably determines may
be unduly prejudicial to the rights of other Holders of Notes or that may
subject the Trustee to personal liability and shall be entitled to the benefit
of Section 7.1(c)(iii) and (e) hereof. Notwithstanding any provision in this
Indenture to the contrary, the Trustee shall not be obligated to take any action
with respect to the provisions of Section 6.9 hereof unless directed to do so
pursuant to this Section 6.5 by the Holders of at least 10% in principal amount
of the then outstanding Notes.
SECTION 6.6. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this Indenture or the
Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of
a continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(e) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Notes do not give the Trustee
a direction inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the rights of another
Holder of a Note or to obtain a preference or priority over another Holder of a
Note.
SECTION 6.7. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any Holder
of a Note to receive payment of principal of, or Redemption Price or Purchase
Price, interest or Liquidated Damages, if any, on the Note, on or after the
respective due dates therefor (including in connection with an offer to
repurchase), 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
written consent of such Holder, except to the extent that the institution or
prosecution of such suit or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the Lien
of this Indenture and the Security Documents upon the Collateral.
SECTION 6.8. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.1(a) or (b) occurs and is
continuing, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the whole amount of
principal, Redemption Price, interest and Liquidated Damages, if any, remaining
unpaid on the Notes and interest on overdue principal, Redemption Price and
Purchase Price and, to the extent lawful, interest and Liquidated Damages, if
any, and such further amounts as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expense,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.9. EVENT OF DEFAULT TO AVOID PREMIUM.
In the case of any Event of Default occurring by reason of any willful action
(or inaction) taken (or not taken) by or on behalf of the Company with the
intention of avoiding payment of the premium that the Company would have had to
pay if the Company then had elected to redeem the Notes pursuant to the optional
redemption provisions hereof, an equivalent premium shall also become and be
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes. If an Event of Default occurs prior to the first date on which
the Notes are subject to redemption at the option of the Company as provided in
Section 3.7 hereof by reason of any willful action (or inaction) taken (or not
taken) by or on behalf of the Company with the intention of avoiding the
prohibition on redemption of the Notes prior to such first date, then the
premium specified herein for an optional redemption of the Notes on such first
date shall also become immediately due and payable to the extent permitted by
law upon the acceleration of the Notes.
SECTION 6.10. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents (including accountants,
experts or such other professionals as the Trustee deems necessary, advisable or
appropriate) and counsel and the Holders of the Notes allowed in any judicial
proceedings relative to the Company (or any other obligor upon the Notes), its
creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any
such claims, and any custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7 hereof. To
the extent that the payment of any such compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.7 hereof out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be entitled to receive in
such proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.11. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall pay out the
money in the following order:
First: to the Trustee for amounts due under Section 7.7, then to
the PBGC and the Master Trust, each acting on behalf of itself and
various pension plans of the Company, if at such time they have a
prior Lien and any amounts are due to them, in each case, pursuant to
the PBGC Documents, and then to the Collateral Agent for amounts due
under the Security Documents.
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, Purchase Price, Redemption Price and Liquidated
Damages, if any, and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for
principal, Purchase Price, Redemption Price and Liquidated Damages, if
any, and interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a special record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.11.
SECTION 6.12. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the
filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section does not apply to a suit
by the Trustee, a suit by a Holder pursuant to Section 6.7 hereof, or a
suit by Holders of more than 10% in principal amount of the then
outstanding Notes.
ARTICLE VII.
TRUSTEE
SECTION 7.1. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the
express provisions of this Indenture and the TIA and the Trustee need
perform only those duties that are specifically set forth in this
Indenture and no others, and no implied covenants or obligations shall
be read into this Indenture or the TIA against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, without investigation, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any statements, certificates or opinions 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 on their face to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to this Section 7.1.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, pursuant to the provisions of this Indenture, including,
without limitation, Section 6.5 hereof, unless such Holder shall have offered to
the Trustee security and indemnity satisfactory to it against any loss,
liability or expense which might be incurred by it in compliance with such
request or direction.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.2. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any document believed by it to be genuine and to
have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate of the Company or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate of the Company or Opinion of
Counsel. The Trustee may consult with counsel and the written advice of such
counsel and Opinions of Counsel shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys, accountants, experts and
such other professionals as the Trustee deems necessary, advisable or
appropriate and shall not be responsible for the misconduct or negligence of any
attorney, accountant, expert or other such professional appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficiently evidenced by
a written order signed by two Officers of the Company.
(f) The Trustee shall not be charged with knowledge of any Default or
Event of Default under Section 6.1 hereof (other than under Section 6.1(a)
(subject to the following sentence) or Section 6.1(b) hereof) unless either (i)
a Responsible Officer shall have actual knowledge thereof, or (ii) the Trustee
shall have received notice thereof in accordance with Section 12.2 hereof from
the Company or any Holder of the Notes. The Trustee shall not be charged with
knowledge of the Company's obligation to pay Liquidated Damages, or the
cessation of such obligation, unless the Trustee receives written notice thereof
from the Company or any Holder. The Trustee shall not be charged with knowledge
of any Default or Event of Default under Section 6.9 hereto unless the Trustee
shall have received notice thereof in accordance with Section 12.2 hereof from
any Holder of the Notes.
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Notes and may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest within the meaning
of the TIA it must eliminate such conflict within 90 days, apply (subject to the
consent of the Company and only if Notes are registered under the Securities Act
at such time) to the Commission for permission to continue as trustee or resign.
Any Agent may do the same with like rights and duties. The Trustee is also
subject to Sections 7.10 and 7.11 hereof.
SECTION 7.4. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Indenture, or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.5. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing, the Trustee shall
mail to Holders of Notes a notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a Default in payment on any Note
(including the failure to make a mandatory repurchase pursuant hereto), the
Trustee may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of the Holders of the Notes.
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following the date of
this Indenture, and for so long as Notes remain outstanding, the Trustee shall
mail to the Holders of the Notes a brief report dated as of such reporting date
that complies with TIA s. 313(a) (but if no event described in TIA s. 313(a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA s. 313(b). The Trustee
shall also transmit by mail all reports as required by TIA s. 313(c).
A copy of each report at the time of its mailing to the Holders of Notes shall
be mailed to the Company and filed with the Commission and each stock exchange
on which the Notes are listed in accordance with TIA s. 313(d). The Company
shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
SECTION 7.7. COMPENSATION, REIMBURSEMENT AND INDEMNITY.
The Company shall pay to the Trustee from time to time such compensation as the
Company may negotiate with the Trustee in accordance with industry standards for
its acceptance of this Indenture and the rendering by it of the services
required hereunder. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon request for all reasonable disbursements, advances and
expenses incurred or made by or on behalf of it in addition to the compensation
for its services. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's attorneys, accountants, experts and
such other professionals as the Trustee deems necessary, advisable or
appropriate.
The Company shall indemnify the Trustee against any and all losses, liabilities
or expenses incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture (including its duties under
Section 9.6 hereof), including the costs and expenses of enforcing this
Indenture (including this Section 7.7) or any Security Document against the
Company or the applicable Subsidiary (including, without limitation, expenses of
any foreclosure sale pursuant to the Mortgages and any advances, fees and
expenses, including, without limitation, reasonable fees and expenses of the
Trustee's legal counsel, and of any judicial proceedings wherein such
foreclosure sale may be made, and all expenses, liabilities and advances
reasonably made or incurred by the Trustee under the Mortgages, together with
interest on all such advances made by the Trustee at the rate set forth in the
Mortgages, and including the payments of any Impositions (as defined in the
Mortgages), except any taxes, assessments or other charges subject to which the
Mortgaged Property shall have been sold) and defending itself against or
investigating any claim (whether asserted by the Company, any Subsidiary, any
Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or willful
misconduct. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend any claim or threatened claim asserted against the Trustee, and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of such counsel. The
Company need not pay for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The obligations of the Company under this Section 7.7 shall survive the
resignation or removal of the Trustee, the satisfaction and discharge of this
Indenture and the termination of this Indenture.
To secure the Company's payment obligations in this Section 7.7, the Trustee
shall have a Lien prior to the Notes on all money or property held or collected
by the Trustee, except that held in trust to pay principal, Redemption Price or
Purchase Price of or Liquidated Damages, if any, or interest on, particular
Notes. Such Lien shall survive the resignation or removal of the Trustee, the
satisfaction and discharge of this Indenture and the termination of this
Indenture.
When the Trustee incurs expenses or renders services after an Event of Default
specified in Section 6.1(h) or (i) hereof occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.8. REPLACEMENT OF TRUSTEE.
A resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from the trust
hereby created by so notifying the Company. The Holders of Notes of a majority
in principal amount of the then outstanding Notes may remove the Trustee by so
notifying the Trustee and the Company in writing. The Company may remove the
Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(c) a custodian, receiver or public officer takes charge of the
Trustee or its property for the purpose of rehabilitation,
conversation or liquidation; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Company shall promptly appoint a successor Trustee.
Within one year after the date on which the successor Trustee takes office, the
Holders of a majority in principal amount of the then outstanding Notes may
appoint a successor Trustee to replace the successor Trustee appointed by the
Company.
If a successor Trustee does not take office within 30 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company, or the Holders
of Notes of at least 10% in principal amount of the then outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee, after written request by any Holder of a Note who has been a
bona fide holder of a Note or Notes for at least six months, fails to comply
with Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the
retiring Trustee and to the Company. Thereupon, the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
Company shall mail a notice of the Trustee's succession to each Holder of the
Notes. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, provided all sums owing to the Trustee
hereunder have been paid and subject to the Lien provided for in Section 7.7
hereof. Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Company's obligations under Section 7.7 hereof shall continue for the
benefit of the retiring Trustee.
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation that
is eligible under Section 7.10 hereof, the successor corporation without any
further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a corporation organized
and doing business under the laws of the United States of America or of any
state thereof (including the District of Columbia) that is authorized under such
laws to exercise corporate trust power, that is subject to supervision or
examination by federal or state authorities and that has a combined capital and
surplus of at least $100.0 million as set forth in its most recent published
annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA
s. 310(a)(1), (2) and (5). The Trustee is subject to TIA s. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to 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 therein.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board evidenced by a resolution set forth
in an Officers' Certificate of the Company, at any time, elect to have either
Section 8.2 or 8.3 hereof be applied to all outstanding Notes upon compliance
with the conditions set forth below in this Article VIII.
SECTION 8.2. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.1 hereof of the option applicable to
this Section 8.2, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be deemed to have been discharged
from their obligations with respect to all outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, "Legal Defeasance"). For
this purpose, Legal Defeasance means that the Company shall be deemed to have
paid and discharged the entire Indebtedness represented by the outstanding
Notes, which shall thereafter be deemed to be "outstanding" only for the
purposes of Section 8.5 hereof and the other Sections of this Indenture referred
to in clauses (a) through (d) below, and to have satisfied all their other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive solely
from the trust fund described in Section 8.4 hereof, and as more fully
set forth in such Section, payments in respect of the principal or
Redemption Price of, and interest and Liquidated Damages, if any, on
such Notes when such payments are due,
(b) the Company's obligations with respect to such Notes under
Article II and Section 4.2 hereof,
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection
therewith, and
(d) this Article Eight.
Subject to compliance with this Article Eight, the Company may exercise its
option under this Section 8.2, notwithstanding the prior exercise of its option
under Section 8.3 hereof.
SECTION 8.3. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.1 hereof of the option applicable to
this Section 8.3, the Company shall, subject to the satisfaction of the
conditions set forth in Section 8.4 hereof, be released from their obligations
under the covenants contained in Sections 3.8, 3.9, 4.5, 4.7 through 4.12 and
4.14 through 4.20 hereof, both inclusive, and Section 5.1(iv) and (v) with
respect to the outstanding Notes on and after the date the conditions set forth
below are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, 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 6.1 hereof, but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's exercise under Section 8.1
hereof of the option applicable to this Section 8.3 hereof, subject to the
satisfaction of the conditions set forth in Section 8.4 hereof, Sections 6.1(c)
through 6.1(i) hereof shall not constitute Events of Default.
SECTION 8.4. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following are the conditions precedent to the application of either Section
8.2 or 8.3 hereof to the outstanding Notes:
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 of the Notes, cash in United
States dollars, U.S. Government Securities, or a combination thereof,
in such amounts as will be sufficient (without reinvestment), in the
opinion of a nationally recognized firm of independent public
accountants, to pay the principal or Redemption Price of, and interest
and Liquidated Damages, if any, on the outstanding Notes on the stated
date for payment thereof or on the applicable Redemption Date, as the
case may be, and the Company must specify whether the Notes are being
defeased to maturity or to a particular Redemption Date;
(b) in the case of an election under Section 8.2 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
Indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance had
not occurred;
(c) in the case of an election under Section 8.3 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel in
the United States reasonably acceptable to the Trustee confirming that
the Holders of the outstanding Notes will not recognize income, gain
or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit) or insofar as Section 6.1(h) or (i) hereof is concerned, at
any time in the period ending on the ninety-first day after the date
of deposit (which condition shall not be deemed satisfied until such
ninety-first day);
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, any
material agreement or instrument 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 deliver to the Trustee an Opinion of
Counsel to the effect that after the ninety-first day following the
deposit, the trust funds will not be subject to the effect of an
avoidance or other order under any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally;
(g) the Company shall deliver to the Trustee an Officers'
Certificate of the Company stating that the deposit was not made by
the Company with the intent of preferring the Holders of Notes over
the other creditors of the Company, with the intent of defeating,
hindering, delaying or defrauding any creditors of the Company or
others; and
(h) the Company shall deliver to the Trustee an Officers'
Certificate of the Company and an Opinion of Counsel, each stating
that the all conditions precedent to the Legal Defeasance or Covenant
Defeasance, as the case may be, have been complied with.
SECTION 8.5. DEPOSITED MONEY AND U.S. GOVERNMENT SECURITIES TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.6 hereof, all money and U.S. Government Securities
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5 only, the "Trustee")
pursuant to Section 8.4 hereof in respect of the outstanding Notes shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (other than the Company) as the Trustee may determine, to the Holders of
such Notes of all sums due and to become due thereon in respect of principal or
Redemption Price of, and Liquidated Damages, if any, or interest on, the Notes,
but such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the cash or U.S. Government Securities
deposited pursuant to Section 8.4 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 Notes.
Anything in this Article VIII to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon the request of the Company
any money or U.S. Government Securities held by it as provided in Section 8.4
hereof which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee (which may be the opinion delivered under Section 8.4(a) hereof), are in
excess of the amount thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 8.6. REPAYMENT TO THE COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal or Redemption Price of, or
Liquidated Damages, if any, or interest on any Note and remaining unclaimed for
two years after such amount has become due and payable shall be paid to the
Company on its request or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Note shall thereafter look only to the
Company for payment thereof as a general creditor, 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, at the expense of the Company, shall cause to be published once, in
THE NEW YORK TIMES and THE WALL STREET JOURNAL (national editions), notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days after the date of such notification or
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.7. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States dollars or
U.S. Government Securities in accordance with Section 8.2 or 8.3 hereof, as the
case may be, by reason of any order of judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the obligations of the Company under this Indenture, and the Notes shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 hereof until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 8.2 or 8.3 hereof, as the case
may be; provided, however, that, if the Company makes any payment with respect
to any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.2 of this Indenture, the Company and the Trustee may
amend or supplement this Indenture or the Notes without the consent of any
Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in
place of Certificated Notes;
(c) to provide for the assumption of the Company's obligations
to the Holders of the Notes in the case of a merger or consolidation
pursuant to Article V hereof;
(d) to make any change that would provide any additional rights
or benefits to the Holders of the Notes or that does not adversely
affect the legal rights hereunder of any Holder of the Notes;
(e) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
TIA; or
(f) to provide for future guarantees as provided in Section
4.18.
Upon the request of the Company, accompanied by a resolution of the Board
(evidenced by an Officers' Certificate of the Company) authorizing the execution
of any such amended or supplemental indenture, and upon receipt by the Trustee
of the documents described in Section 7.2 hereof, the Trustee shall join with
the Company in the execution of any amended or supplemental indenture authorized
or permitted by the terms of this Indenture and to make any further appropriate
agreements and stipulations that may be therein contained, but the Trustee shall
not be obligated to enter into such amended or supplemental Indenture that
affects its own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.2. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.2, the Company and the Trustee may
amend or supplement this Indenture (including Sections 3.8, 3.9, 4.14, and 4.16
and Article X and XI hereof, and including the defined terms used therein) and
the Notes may be amended or supplemented with the consent of the Holders of at
least a majority in principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for the Notes), and, subject to Sections 6.2, 6.4
and 6.7 hereof, any existing Default or Event of Default or compliance with any
provision of this Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes
(including consents obtained in connection with a tender offer or exchange offer
for the Notes).
Without the consent of each Holder affected, an amendment or waiver may not
(with respect to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must
consent to an amendment, supplement or waiver;
(b) reduce the principal, Redemption Price or Purchase Price of
or change the fixed maturity of any Note or alter or waive any of the
provisions with respect to the redemption of the Notes (except as
provided above with respect to Sections 3.8, 3.9, 4.14 and 4.16
hereof);
(c) reduce the rate of or change the time for payment of
interest or Liquidated Damages, if any, on or with respect to any
Note;
(d) waive a Default or Event of Default in the payment of
principal, Redemption Price or Purchase Price of, or interest or
Liquidated Damages, if any, on the Notes (except a rescission of
acceleration of the Notes by the Holders of at least a majority in
aggregate principal amount of the then outstanding Notes and a waiver
of the payment default that resulted from such acceleration);
(e) make any Note payable in money other than that stated in the
Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or the rights of Holders of Notes to
receive payments of principal, Redemption Price or Purchase Price of,
or interest or Liquidated Damages, if any, on the Notes;
(g) waive a redemption or repurchase payment with respect to any
Note (except as provided above with respect to Sections 3.8, 3.9, 4.14
and 4.16 hereof); or
(h) make any change in the foregoing amendment and waiver
provisions.
In addition to the foregoing, except as expressly permitted by this Indenture
(including, without limitation, in Sections 10.3, 10.4 and 10.5), no portion of
the Collateral may be released without the consent of the Holders of at least
66-2/3% in aggregate principal amount of the then outstanding Notes.
Upon the written request of the Company accompanied by a resolution of the Board
(evidenced by an Officers' Certificate of the Company) authorizing the execution
of any such amended or supplemental indenture, and upon the filing with the
Trustee of evidence satisfactory to the Trustee of the consent of the Holders of
Notes as aforesaid, and upon receipt by the Trustee of the documents described
in Section 7.2 hereof, the Trustee shall join with the Company in the execution
of such amended or supplemental indenture unless such amended or supplemental
Indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under this
Section 9.2 to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment, supplement or waiver under this Section 9.2 becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver.
SECTION 9.3. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall be set forth
in a amended or supplemental indenture that complies with the TIA as then in
effect.
SECTION 9.4. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Note is a continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that evidences the same debt as
the consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.5. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment, supplement or
waiver on any Note thereafter authenticated. The Company in exchange for all
Notes may issue and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect
the validity and effect of such amendment, supplement or waiver.
SECTION 9.6. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental indenture authorized pursuant
to this Article IX if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. The Company may not
sign an amendment or supplemental Indenture until the Board approves such
amendment or supplemental indenture. In executing any amended or supplemental
indenture, the Trustee shall be entitled to receive, in addition to the
documents required by Sections 12.4 and 12.5 hereof, and, subject to Section
7.1, shall be fully protected in relying upon, an Officers' Certificate of the
Company and an Opinion of Counsel stating that (i) the execution of such amended
or supplemental indenture is authorized or permitted by this Indenture, (ii) no
Event of Default shall occur as a result of the execution of such Officers'
Certificate of the Company or the delivery of such Opinion of Counsel and (iii)
the amended or supplemental indenture complies with the terms of this Indenture.
ARTICLE X.
SECURITY DOCUMENTS
SECTION 10.1. COLLATERAL AND SECURITY DOCUMENTS.
(a) In order to secure the due and punctual payment of principal of and
interest on the Notes when and as the same shall be due and payable, whether on
an Interest Payment Date, at maturity, by acceleration, repurchase, redemption
or otherwise, and interest on the overdue principal of an interest (to the
extent permitted by law), if any, on the Notes and performance of all other
obligations of the Company to the Holders or the Trustee under this Indenture
and the Notes, the Company and the Collateral Agent have simultaneously with the
execution of this Indenture entered into the Security Documents (other than the
Intercreditor Agreement), pursuant to which the Company has granted to the
Collateral Agent for the benefit of the Trustee and the Holders a second
priority Lien on and security interest in the Collateral (such Lien ranking
junior in priority only to the existing Lien on the Collateral granted to the
Master Trust and the PBGC, for the benefit of the pension plan of the Company,
pursuant to the PBGC Documents, provided that upon the extinguishment of the
Lien evidenced by the PBGC Documents, the security interest in the Collateral
granted to the Collateral Agent for the benefit of the Trustee and the Holders
shall become a first priority Lien. The Collateral Agent and the Company hereby
agree that the Collateral Agent holds the Collateral as a secured party or
mortgagee, as the case may be, in trust for the benefit of the Trustee, in its
capacity as trustee, and for the ratable benefit of the Holders pursuant to the
terms of the Security Documents. The Collateral Agent is authorized and
directed to enter into the Intercreditor Agreement.
(b) Each Holder, by accepting a Note, consents and agrees to all of the
terms and provisions of the Security Documents, as the same may be in effect
from time to time or may be amended from time to time in accordance with the
provisions of the Security Documents and this Indenture, and authorizes and
directs the Collateral Agent to act as mortgagee or secured party with respect
thereto.
(c) As set forth in and governed by the Security Documents, as among the
Holders of Notes, the Collateral as now or hereafter constituted shall be held
for the equal and ratable benefit of the Holders of the Notes without
preference, priority or distinction of any thereof over any other by reason of
difference in time of issuance, sale or otherwise, as security for the Notes.
SECTION 10.2. RECORDING; PRIORITY; OPINIONS, ETC.
(a) The Company shall at its sole cost and expense perform any and all
acts and execute any and all documents (including, without limitation, the
execution, amendment or supplementation of any financing statement and
continuation statement or other statement) for filing under the provisions of
the UCC and the rules and regulations thereunder, or any other statute, rule or
regulation of any applicable federal, state or local jurisdiction, including any
filings in local real estate land record offices, which are necessary or
advisable and shall do such other acts and execute such other documents as may
be required under any of the Security Documents, from time to time, in order to
grant, perfect and maintain in favor of the Collateral Agent for the benefit of
the Trustee and the Holders a valid and perfected Lien on the Collateral with
the priority set forth in Section 10.1(a), subject only to the Liens permitted
by the Security Documents and to preserve fully and protect the rights of the
Trustee and the Holders under this Indenture.
The Company shall from time to time promptly pay and satisfy all mortgage and
financing and continuation statement recording and/or filing fees, charges and
taxes relating to this Indenture and the Security Documents, any amendments
thereto and any other instruments of further assurance. Without limiting the
generality of the foregoing covenant, in the event at any time the Collateral
Agent or the Trustee shall determine that additional mortgage recording,
transfer or similar taxes are required to be paid to perfect or continue any
Lien on any Collateral, the Company shall pay such taxes promptly upon demand by
the Collateral Agent or the Trustee.
(b) The Company shall, with respect to (i) below, promptly after the
initial issuance of the Notes, and with respect to (ii) below, upon
qualification of this Indenture under the TIA, furnish to the Trustee:
(i) Opinion(s) of Counsel either (a) to the effect that, in
the opinion of such counsel, this Indenture and the grant of a
security interest in the Collateral intended to be made by the
Security Documents and all other instruments of further
assurance, including, without limitation, financing statements,
have been properly recorded and filed to the extent necessary to
perfect the Lien on the Collateral created by the Security
Documents and reciting the details of such action, and stating
that as to the Liens created pursuant to the Security Documents,
such recordings and filings are the only recordings and filings
necessary to give notice thereof and that no re-recordings or
refilings are necessary to maintain such notice (other than as
stated in such opinion), or (b) to the effect that, in the
opinion of such counsel, no such action is necessary to perfect
such Lien;
(ii) on January 1 in each year beginning with January 1,
1998, an Opinion of Counsel, dated as of such date, either (a) to
the effect that, in the opinion of such counsel, such action has
been taken with respect to the recordings, registerings, filings,
re-recordings, re-registerings and refilings of all financing
statements, continuation statements or other instruments of
further assurance as is necessary to maintain the Lien of each of
the Security Documents and reciting with respect to such Liens
the details of such action or referencing prior Opinions of
Counsel in which such details are given, and stating that all
financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and
protect the rights of the Holders and the Trustee hereunder and
under each of the Security Documents with respect to the Liens,
or (b) to the effect that, in the opinion of such counsel, no
such action is necessary to maintain such Liens.
SECTION 10.3. RELEASE OF COLLATERAL.
Except as otherwise permitted by Sections 10.4 and 10.5, the Collateral Agent
shall not release Collateral from the Lien of the Security Documents unless such
release is in accordance with the provisions of this Section 10.3 and of the
Security Documents. To the extent applicable, the Company shall cause TIA
ss. 314(d) relating to the release of property or Liens to be complied with.
(a) Satisfaction and Discharge; Defeasance. The Company shall
be entitled to obtain a full release of all of the Collateral from the
Lien of this Indenture and the Security Documents upon compliance with
all of the conditions precedent for satisfaction and discharge of this
Indenture set forth in Section 8.1 or for defeasance pursuant to
Section 8.2. Upon delivery by the Company to the Trustee and to the
Collateral Agent of an Officers' Certificate and an Opinion of
Counsel, each to the effect that all of the conditions precedent have
been complied with (which may be the same Officers' Certificate and
Opinion of Counsel required by Article VIII), the Trustee shall take
all necessary action, at the request and expense of the Company, to
release and reconvey to the Company all of the Collateral, and shall
deliver such Collateral in its possession to the Company including,
without limitation, the execution and delivery of releases or waivers
whenever necessary.
(b) Sales of Collateral Permitted by Section 4.16. The Company
shall be entitled to obtain a release of all or any part of the
Collateral (other than Trust Moneys) (the "Released Interests")
subject to an Asset Sale upon compliance with the condition precedent
that the Company shall have delivered to the Trustee and to the
Collateral Agent the following:
(i) Release Notice. A notice (each, an "Asset Sale
Release Notice"), which shall (A) refer to this Section
10.3, (B) attach all the documents referred to below, (C)
describe with particularity the Released Interest, (D)
specify the value of such Released Interest on a date within
60 days of the Asset Sale Release Notice (the "Valuation
Date"), (E) certify that the purchase price received is
equal to the Fair Market Value of the Released Interest as
of the date of such release, (F) state that the Released
Interest will not interfere with or impede the Trustee's
ability to realize the value of the remaining Collateral and
will not impair the maintenance and operation of the
remaining Collateral, (G) confirm the sale of, or an
agreement to sell, such Released Interest in a bona fide
sale to a Person that is not an Affiliate of the Company or,
in the event that such sale is to an Affiliate, confirm that
such sale is being made in accordance with Section 4.10 and
(H) be accompanied by a counterpart of the instruments
proposed to give effect to the release fully executed and
acknowledged (if applicable) by all parties thereto other
than the Collateral Agent;
(ii) Officers' Certificate and Opinion of Counsel. An
Officers' Certificate and an Opinion of Counsel, each
stating that (A) such Asset Sale covers only the Released
Interest and complies with the terms and conditions of an
Asset Sale pursuant to Section 4.16, (B) all Net Proceeds
from the sale of the Released Interest will be applied
pursuant to Section 4.16, (C) there is no Default or Event
of Default in effect or continuing on the date thereof, the
Valuation Date or the date of such Asset Sale, (D) the
release of the Released Asset will not result in a Default
or Event of Default and (E) all conditions precedent to such
release have been complied with;
(iii) Regarding Real Property. If the Released
Asset is only a portion of a discrete parcel of Real
Property, evidence that a title company shall have committed
to issue an endorsement to the title insurance policy
relating to the affected Mortgaged Property confirming that
after such release, the Lien of the applicable Mortgage
continues unimpaired as a perfected Lien having the priority
set forth in Section 10.1(a) upon the remaining Mortgaged
Property subject only to Prior Liens;
(iv) Proceeds of Asset Sale. The Net Proceeds and
other non-cash consideration received from the Asset Sale
required to be delivered to the Trustee pursuant to Section
4.16; and
(v) Other Documents. Upon qualification of this
Indenture under the TIA, all documentation required by TIA
ss. 314(d).
Upon compliance with the conditions set forth in (b) above, and the delivery by
the Company of such other documents that the Trustee or the Collateral Agent may
reasonably require, the Collateral Agent shall execute, acknowledge (if
applicable) and deliver to the Company such counterpart within 10 Business Days
after receipt by the Trustee of an Asset Sale Release Notice and the
satisfaction of the applicable requirements of this Section 10.3.
At any time when a Default or an Event of Default shall have occurred and be
continuing, no release of Collateral pursuant to the provisions of this
Indenture or the Collateral Documents shall be effective as against the Holders
of the Notes.
SECTION 10.4. DISPOSITION OF COLLATERAL WITHOUT RELEASE.
(a) So long as no Default or Event of Default shall have occurred and be
continuing, the Company may, without any release or consent by the Collateral
Agent or the Trustee, sell or otherwise dispose of any machinery, equipment,
furniture, apparatus, tools or implements or other similar property which at
such time is subject to the Lien of the Security Documents, which may have
become worn out or obsolete, not exceeding individually, in Fair Market Value,
$250,000, subject in all cases to the requirements of and restrictions contained
in the TIA.
(b) In the event that that the Company has sold, exchanged, or otherwise
disposed of or proposes to sell, exchange or otherwise dispose of any portion of
the Collateral which under the provisions of this Section 10.4 may be sold,
exchanged or otherwise disposed of by the Company without any release or consent
of the Collateral Agent or the Trustee, and the Company requests the Collateral
Agent or the Trustee to furnish a written disclaimer, release or quitclaim of
any interest in such property under any of the Security Documents, the
Collateral Agent shall promptly execute (or, if so requested by the Company,
shall promptly instruct the Trustee to execute) such an instrument upon delivery
to the Trustee of (i) an Officers' Certificate by the Company reciting the sale,
exchange or other disposition made or proposed to be made and describing in
reasonable detail the property affected thereby, and stating and demonstrating
that such property is property which by the provisions of this Section 10.4 may
be sold, exchanged or otherwise disposed of or dealt with by the Company without
any release or consent of the Collateral Agent or the Trustee and (ii) an
Opinion of Counsel stating that the sale, exchange or other disposition made or
proposed to be made was duly made by the Company in conformity with Section
10.4(a) and that the execution of such written disclaimer, release or quitclaim
is appropriate to confirm the propriety of such sale, exchange or other
disposition under this Section 10.4. Notwithstanding the preceding sentence,
all purchasers and grantees of any property or rights purporting to be released
herefrom shall be entitled to rely upon any release executed by the Collateral
Agent or the Trustee hereunder as sufficient for the purposes of this Indenture.
SECTION 10.5. EMINENT DOMAIN AND OTHER GOVERNMENT TAKINGS.
Subject to the provisions of the Security Documents, upon the occurrence of a
Taking or should any of the Collateral be sold pursuant to the exercise by the
United States of America or any State, municipality or other governmental
authority of any right which any of them may then have to purchase, or to
designate a purchaser of to order a sale of, all or any part of the Collateral,
the Trustee shall release the property subject to such Taking or purchase, but
only upon receipt by the Trustee of the following:
(a) an Officers' Certificate stating that a Taking has occurred
with respect to such property and the amount of the Net Award
therefor, or that such property has been sold pursuant to a right
vested in the United States of America or a state, municipality or
other governmental authority to purchase, or to designate a purchaser
or order a sale of such property and the amount of the proceeds of
such sale, and that all conditions precedent herein provided for
relating to such release have been complied with;
(b) any Net Award, to be held as Trust Moneys subject to the
disposition thereof pursuant to Article XI and the applicable Security
Documents; provided, however, that in lieu of all or any part of such
Net Award, the Company shall have the right to deliver to the Trustee
a certificate of the trustee, mortgagee or other holder of a Prior
Lien on all or any part of the property to be released, stating that
such Net Award, or a specified portion thereof, has been deposited
with such trustee, mortgagee or other holder pursuant to the
requirements of such Prior Lien, in which case the balance of the
award, if any, shall be delivered to the Trustee; and
(c) an Opinion of Counsel substantially to the effect:
(i) that a Taking has occurred with respect to such
property or such property has been sold pursuant to the
exercise of a right vested in the United States of America
or a State, municipality or other governmental authority to
purchase, or to designate a purchaser or order a sale of,
such property;
(ii) in the case of any Taking, that the Net Award for
the property so taken has become final or that the Board of
Directors of the Company has determined that an appeal from
such award is not advisable in the interests of the Company
or the Holders of the Notes;
(iii) in the case of any such sale, that the amount
of the proceeds of the property so sold is not less than the
amount to which the Company is legally entitled under the
terms of such right to purchase or designate a purchaser, or
under the order or orders directing such sale, as the case
may be;
(iv) in the event that, pursuant to Section 10.5(b),
the Net Award for such property or the proceeds of such
sale, or a specified portion thereof, shall be certified to
have been deposited with the trustee, mortgagee or other
holder of a Prior Lien, that the property to be released, or
a specified portion thereof, is or immediately before such
Taking or purchase was subject to such Prior Lien, and that
such deposit is required by such Prior Lien; and
(v) that the instrument or the instruments and the Net
Award or proceeds of such sale which have been or are
therewith delivered to and deposited with the Trustee
conform to the requirements of this Indenture and any of the
Security Documents and that, upon the basis of such
application, the Collateral Agent and the Trustee are
permitted by the terms hereof and of the Security Documents
to execute and deliver the release requested, and that all
conditions precedent herein provided for relating to such
release have been complied with.
In any proceedings for the Taking or purchase or sale of any part of the
Collateral, by eminent domain or by virtue of any such right to purchase or
designate a purchaser or to order a sale, the Trustee may be represented by
counsel who may be counsel for the Company. Subject to the provisions of the
Security Documents, all cash or Cash Equivalents received by the Trustee
pursuant to this Section 10.5 shall be held by the Trustee as Trust Moneys under
Article XI subject to application as therein provided. Subject to the
provisions of the Security Documents, all purchase money and other obligations
received by the Trustee pursuant to this Section 10.5 shall be held by the
Trustee as Collateral subject to application as provided in Section 10.13.
SECTION 10.6. TRUST INDENTURE ACT REQUIREMENTS.
The release of any Collateral, whether pursuant to any provision of this Article
X or Article XI, from any of the Security Documents or the release of, in whole
or in part, the Liens created by any of the Security Documents, will not be
deemed to impair the Lien of the Security Documents in contravention of the
provisions hereof if and to the extent the Collateral or Liens are released
pursuant to the applicable Security Documents and pursuant to the terms hereof.
The Trustee and each of the Holders acknowledge that a release of Collateral or
Liens strictly in accordance with the terms of the Security Documents and the
terms hereof will not be deemed for any purpose to be an impairment of the Liens
created pursuant to the Security Documents in contravention of the terms of this
Indenture. Without limitation, the Company and each other obligor on the Notes
shall cause TIA ss. 314(d) relating to the release of property or securities
from the Liens of each hereof and of the Security Documents to be complied with.
Any certificate or opinion required by TIA ss. 314(d) may be made by an officer
of the Company, except for cases in which TIA ss. 314(d) requires that such
certificate or opinion be made by an independent person.
SECTION 10.7. SUITS TO PROTECT COLLATERAL.
Subject to the provisions of the Security Documents, the Trustee shall have
power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts which may be
unlawful or in violation of any of the Security Documents or this Indenture, and
such suits and proceedings as the Trustee may deem expedient to preserve or
protect its interests and the interests of the Holders in the Collateral
(including power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair the Collateral or be prejudicial to the interests of the Holders or the
Trustee).
SECTION 10.8. PURCHASER PROTECTED.
In no event shall any purchaser in good faith of any property purported to be
released hereunder be bound to ascertain the authority of the Collateral Agent
or the Trustee to execute the release or to inquire as to the satisfaction of
any conditions required by the provisions hereof for the exercise of such
authority or to see to the application of any consideration given by such
purchaser or other transferee; nor shall any purchaser or other transferee of
any property or rights permitted by this Article X to be sold be under
obligation to ascertain or inquire into the authority of the Company to make any
such sale or other transfer.
SECTION 10.9. POWERS EXERCISABLE BY RECEIVER OR TRUSTEE.
In case the Collateral shall be in the possession of a receiver or trustee,
lawfully appointed, the powers conferred in this Article X upon the Company with
respect to the release, sale or other disposition of such property may be
exercised by such receiver or trustee, and an instrument signed by such receiver
or trustee shall be deemed the equivalent of any similar instrument of the
Company or of any officer or officers thereof required by the provisions of this
Article X.
SECTION 10.10. DETERMINATIONS RELATING TO COLLATERAL.
In the event (i) the Trustee or the Collateral Agent shall receive any written
request from the Company under any Security Document for consent or approval
with respect to any matter or thing relating to any Collateral or the Company's
obligations with respect thereto (including, without limitation, the
determination as to whether any portion of the Collateral constitutes Released
Collateral) or (ii) there shall be due to or from the Trustee or the Collateral
Agent under the provisions of any Security Document any performance or the
delivery of any instrument or (iii) the Trustee or the Collateral Agent shall
become aware of any nonperformance by the Company of any covenant or any breach
of any representation or warranty of the Company set forth in any Security
Document, then, in each such event, the Trustee or the Collateral Agent, as
applicable, shall be entitled to hire experts, consultants, agents and attorneys
to advise the Trustee on the manner in which the Trustee should respond to such
request or render any requested performance or response to such nonperformance
or breach. The Trustee shall be fully protected in the taking of any action
recommended or approved by any such expert, consultant, agent or attorney or
agreed to by a majority of Holders pursuant to Section 6.5.
SECTION 10.11. FORM AND SUFFICIENCY OF RELEASE.
In the event that the Company has sold, exchanged, or otherwise disposed of or
proposes to sell, exchange or otherwise dispose of any portion of the Collateral
which under the provisions of Sections 10.3 and 10.5 may be sold, exchanged or
otherwise disposed of by the Company, and the Company requests the Trustee or
the Collateral Agent to furnish a written disclaimer, release or quitclaim of
any interest in such property under any of the Security Documents, the
Collateral Agent shall promptly execute (or, if so requested by the Company,
shall promptly instruct the Trustee to execute) such an instrument promptly
after satisfaction of the conditions set forth herein for delivery of such
release. Notwithstanding the preceding sentence, all purchasers and grantees of
any property or rights purporting to be released herefrom shall be entitled to
rely upon any release executed by the Trustee hereunder as sufficient for the
purposes of this Indenture and as constituting a good and valid release of the
property therein described from the Lien of this Indenture and the Security
Documents.
SECTION 10.12. POSSESSION AND USE OF COLLATERAL.
Subject to and in accordance with the provisions of this Indenture and the
Security Documents, so long as no Default or Event of Default shall have
occurred and be continuing, the Company shall have the right to remain in
possession and retain exclusive control of the Collateral, to operate, manage,
develop, use and enjoy the Collateral and to collect, receive, use, invest and
dispose of the reversions, remainders, rates, interest, rents, issues, profits,
revenues, proceeds and other income thereof (other than Trust Moneys).
SECTION 10.13. DISPOSITION OF OBLIGATIONS RECEIVED.
All purchase money or other obligations received by the Trustee under this
Article X shall be held by the Trustee, as a part of the Collateral. Upon
payment in cash or Cash Equivalents by or on behalf of the Company or the
obligor thereof to the Trustee of the entire unpaid principal amount of any such
obligation, to the extent not constituting Net Proceeds from an Asset Sale which
may possibly be required, through the passage of time or otherwise, to be used
to purchase Notes pursuant to Section 4.16, the Trustee shall promptly release
and transfer such obligation and any mortgage securing the same upon receipt of
any documentation that the Trustee may reasonably require. Any cash or Cash
Equivalents received by the Trustee in respect of the principal of any such
obligations shall be held by the Trustee as Trust Moneys under Article XI
subject to application as therein provided. Unless and until the Notes are
accelerated pursuant to Section 6.2, all interest and other income on any such
obligations, when received by the Trustee, shall be paid to the Company from
time to time in accordance with Section 11.7. If the Notes have been
accelerated pursuant to Section 6.2, any such interest or other income not
theretofore paid, when collected by the Trustee, shall be applied by the
Trustee, as the case may be, in accordance with Section 6.10.
SECTION 10.14. RELEASE UPON TERMINATION OF THE COMPANY'S OBLIGATIONS.
In the event that the Company delivers an Officers' Certificate certifying that
the provisions of Sections 8.1 or 8.2 have been complied with, the Trustee shall
(i) execute and deliver such releases, termination statements and other
instruments as the Company may reasonably request evidencing the termination of
the Liens created by the Security Documents and (ii) not be deemed to hold the
Liens for the benefit of the Holders.
ARTICLE XI.
APPLICATION OF TRUST MONEYS
SECTION 11.1. "TRUST MONEYS" DEFINED.
All cash or Cash Equivalents received by the Trustee in accordance with the
terms of this Indenture and the Security Documents:
(a) upon the release of property from the Lien of the Security
Documents, including, without limitation, all moneys received in
respect of the principal of all purchase money, governmental or other
obligations; or
(b) as Net Casualty Proceeds upon the destruction of all or any
part of the Collateral (other than any liability insurance proceeds
payable to the Trustee for any loss, liability or expense incurred by
it); or
(c) as a Net Award or Net Awards upon the Taking of all or any
part of the Collateral; or
(d) as proceeds of any other sale or other disposition of all or
any part of the Collateral by or on behalf of the Trustee or any
collection, recovery, receipt, appropriation or other realization of
or from all or any part of the Collateral pursuant to the Security
Documents or otherwise; or
(e) pursuant to the Mortgages; or
(f) for application under this Article XI as elsewhere provided
in this Indenture or the Security Documents, or whose disposition is
not elsewhere otherwise specifically provided for herein or in the
Security Documents;
(all such moneys being herein sometimes called "Trust Moneys"; provided,
however, that Trust Moneys shall not include any property deposited with the
Trustee pursuant to Section 3.5 or Article VIII or delivered to or received by
the Trustee for application in accordance with Section 6.11) shall be held by
the Trustee for the benefit of the Holders as a part of the Collateral and, upon
any entry upon or sale or other disposition of the Collateral or any part
thereof pursuant to the Security Documents, said Trust Moneys shall be applied
in accordance with Section 6.11; but, prior to any such entry, sale or other
disposition, all or any part of the Trust Moneys may be withdrawn, and shall be
released, paid or applied by the Trustee, from time to time as provided in this
Article XI.
On the Issue Date there shall be established and, at all times hereafter until
this Indenture shall have terminated, there shall be maintained with the Trustee
an account which shall be entitled the "Collateral Account" (the "Collateral
Account"). The Collateral Account shall be established and maintained by the
Trustee at its corporate trust offices. All Trust Moneys which are received by
the Trustee shall be deposited in the Collateral Account and thereafter shall be
held, applied and/or disbursed by the Trustee in accordance with the terms of
this Article XI.
SECTION 11.2. WITHDRAWALS OF INSURANCE PROCEEDS AND CONDEMNATION AWARDS.
Subject to the provisions of the Security Documents, to the extent that any
Trust Moneys consist of either (i) any Net Casualty Proceeds or (ii) any Net
Award or the proceeds for any of the Collateral subject to a Taking sold
pursuant to the exercise by the United States of America or any state,
municipality or other governmental authority of any right which it may then have
to purchase, or to designate a purchaser or to order a sale of any part of the
Collateral, such Trust Moneys may be withdrawn by the Company and shall be paid
by the Trustee upon a request by a Company Order to reimburse the Company for
expenditures made, or to pay costs incurred, by the Company to repair, rebuild
or replace the property destroyed, damaged or taken, upon receipt by the Trustee
of the following:
(a) an Officers' Certificate of the Company, dated not more than
30 days prior to the date of the application for the withdrawal and
payment of such Trust Moneys:
(i) that expenditures have been made, or costs
incurred, by the Company in a specified amount for the
purpose of making certain repairs, rebuildings and
replacements of the Collateral, which shall be briefly
described, and stating the fair value thereof to the Company
at the date of the expenditure or incurrence thereof by the
Company;
(ii) that no part of such expenditures or costs has
been or is being made the basis for the withdrawal of any
Trust Moneys in any previous or then pending application
pursuant to this Section 11.2;
(iii) that there is no outstanding Indebtedness,
other than costs for which payment is being requested, for
the purchase price or construction of such repairs,
rebuildings or replacements, or for labor, wages, materials
or supplies in connection with the making thereof, which, if
unpaid, might become the basis of a vendors', mechanics',
laborers', materialmen's, statutory or other similar Lien
upon any of such repairs, rebuildings or replacements, which
Lien might, in the opinion of the signers of such
certificate, materially impair the security afforded by such
repairs, rebuildings or replacements;
(iv) that the property to be repaired, rebuilt or
replaced is necessary or desirable in the conduct of the
Company's business;
(v) whether any part of such repairs, rebuildings or
replacements within six months before the date of
acquisition thereof by the Company has been used or operated
by any person other than the Company in a business similar
to that in which such property has been or is to be used or
operated by the Company, and whether the fair value to the
Company, at the date of such acquisition, of such part of
such repairs, rebuildings or replacement is at least
$25,000, and 1% of the aggregate principal amount of the
outstanding Notes and, if all of such facts are present,
such part of said repairs, rebuildings or replacements shall
be separately described and it shall be stated that an
Appraiser's or Independent Financial Adviser's certificate
as to the fair value to the Company of such separately
described repairs, rebuildings or replacements will be
furnished under paragraph (b) of this Section 11.2;
(vi) that no Default or Event of Default shall have
occurred and be continuing; and
(vii) that all conditions precedent herein
provided for relating to such withdrawal and payment have
been complied with;
(b) all documentation required under TIA ss. 314(d);
(c) (i) In case any part of such repairs, rebuildings or
replacements constitutes Real Property:
(1) with respect to any such repairs, rebuildings or
replacements that are not encompassed within or are not erected
upon Mortgaged Property, an instrument or instruments in
recordable form sufficient for the Lien of this Indenture and any
mortgage to cover such repairs, rebuildings or replacements
which, if such repairs, rebuildings or replacements include
leasehold or easement interests, shall include normal and
customary provisions with respect thereto and evidence of the
filing of all such documents as may be necessary to perfect such
Liens;
(2) a policy of title insurance (or a commitment to issue
title insurance) insuring that the Lien of this Indenture and any
Mortgage constitutes a direct and valid and perfected mortgage
Lien (of the priority contemplated in Section 10.1(a) hereof) on
such repairs, rebuildings or replacements in an aggregate amount
equal to the fair value of such repairs, rebuildings or
replacements together with such endorsements and other opinions
as are contemplated in Section 10.2(b), or with respect to any
such repairs, rebuildings or replacements that are encompassed
within or erected upon Mortgaged Property an endorsement to the
title insurance policy issued pursuant to Section 10.2(b)
regarding the affected Mortgaged Property confirming that such
repairs, rebuildings or replacements are encumbered by the Lien
of the applicable Mortgage;
(3) in the event that such repairs, rebuildings or
replacements have a fair value in excess of $250,000, a Survey
with respect thereto; and
(4) evidence of payment or a closing statement indicating
payments to be made by the Company of all title premiums,
recording charges, transfer taxes and other costs and expenses,
including reasonable legal fees and disbursements of counsel for
the Trustee (and any local counsel), that may be incurred to
validly and effectively subject such repairs, rebuildings or
replacements to the Lien of any applicable Security Document and
to perfect such Lien; and
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(ii) in case any part of such repairs, rebuildings or
replacements constitutes personal property interests:
(1) an instrument in recordable form sufficient for the Lien of
the applicable Security Agreement to cover such repairs,
rebuildings or replacements; and
(2) evidence of payment or a closing statement indicating
payments to be made by the Company of all filing fees, recording
charges, transfer taxes and other costs and expenses, including
reasonable legal fees and disbursements of counsel for the
Trustee (and any local counsel), that may be incurred to subject
validly and effectively such repairs, rebuildings or replacements
to the Lien of any Collateral Document; and
(a)Hidden text
(b)Hidden text
(c)Hidden text
(d) an Opinion of Counsel substantially stating:
(i) that the instruments that have been or are
therewith delivered to the Trustee conform to the
requirements of this Indenture and the Security Documents,
and that, upon the basis of such request of the Company and
the accompanying documents specified in this Section 11.02,
all conditions precedent herein provided for relating to
such withdrawal and payment have been complied with, and the
Trust Moneys whose withdrawal is then requested may be
lawfully paid over under this Section 11.02;
(ii) that the Company has acquired title to said
repairs, rebuildings and replacements at least equivalent to
its title to the property destroyed, damaged or taken, and
that the same and every part thereof are free and clear of
all Liens prior to the Lien of any Security Documents,
except Liens of the type permitted under the applicable
Security Document to which the property so destroyed,
damaged or taken shall have been subject at the time of such
destruction, damage or taken;
(iii) that all of the Company's right, title and
interest in and to said repairs, rebuildings or
replacements, or combination thereof, are then subject to
the Lien of the Security Documents.
Upon compliance with the foregoing provisions of this Section 11.2, the Trustee
shall pay on the written request of the Company an amount of Trust Moneys of the
character aforesaid equal to the amount of the expenditures or costs stated in
the Officers' Certificate required by clause (i) of subsection (a) of this
Section 11.2, or the fair value to the Company of such repairs, rebuildings and
replacements stated in such Officers' Certificate (or in such Appraiser's or
Independent Financial Advisor's certificate, if required), whichever is less.
SECTION 11.3. WITHDRAWAL OF TRUST MONEYS ON BASIS OF RETIREMENT OF NOTES.
(a) Except with respect to Trust Moneys received pursuant to
Section 10.3(b) and subject to release pursuant to Section 11.3(b) and
Section 11.4, and as otherwise permitted or required by the Security
Documents, the Trustee shall apply Trust Moneys from time to time to
the payment of the principal of and interest on any Notes, on any
Maturity Date or to the redemption thereof or the purchase thereof
upon tender or in the open market or at private sale or upon any
exchange or in any one or more of such ways, including, without
limitation, pursuant to a Change of Control Offer under Section 4.14
or an Asset Sale Offer pursuant to Section 4.16, as the Company shall
request in writing, upon receipt by the Trustee of the following:
(i) a Board Resolution of the Company directing the
application pursuant to this Section 11.3 of a specified
amount of Trust Moneys and, if any such moneys are to be
applied to payment, designating the Notes so to be paid and,
in case any such moneys are to be applied to the purchase of
Notes, prescribing the method of purchase, the price or
prices to be paid and the maximum principal amount of Notes
to be purchased and any other provisions of this Indenture
governing such purchase;
(ii) cash in the maximum amount of the accrued
interest, if any, required to be paid in connection with any
such purchase, which cash shall be held by the Trustee, in
trust for such purpose;
(iii) an Officers' Certificate, dated not more than
5 Business Days prior to the date of the relevant
application, stating (A) that no Default or Event of Default
exists unless such Default or Event of Default would be
cured thereby, and (B) that all conditions precedent and
covenants herein provided for relating to such application
of Trust Moneys have been complied with; and
(iv) an Opinion of Counsel stating that the documents
and the cash or Cash Equivalents, if any, which have been or
are therewith delivered to and deposited with the Trustee
conform to the requirements of this Indenture and that all
conditions precedent herein provided for relating to such
application of Trust Moneys have been complied with.
Upon compliance with the foregoing provisions of this Section 11.3(a), the
Trustee shall apply Trust Moneys as directed and specified by such Board
Resolution, up to, but not exceeding, the principal amount of the Notes so
paid or purchased, using the cash deposited pursuant to paragraph (ii) of
this Section 11.3(a), to the extent necessary, to pay any accrued interest
required in connection with such purchase.
(b) To the extent that any Trust Moneys consist of Trust Moneys received
by the Trustee pursuant to the provisions of Section 4.16 and the Company
has made an Asset Sale Offer which is not fully subscribed to by the
Holders, the Trust Moneys remaining after completion of the Asset Sale
Offer may be withdrawn by the Company and shall be paid by the Trustee to
the Company (or as otherwise directed by the Company) upon a Company Order
to the Trustee and upon receipt by the Trustee of the following:
(i) A notice which shall (A) refer to this Section 11.3(b) and (B)
describe with particularity the Asset Sale from which such Trust
Moneys were held as Collateral, the amount of Trust Moneys applied to
the purchase of Notes pursuant to the Asset Sale Offer and the
remaining amount of Trust Moneys to be released to the Company;
(ii) An Officer's Certificate certifying that (A) the release of the
Trust Moneys complies with the terms and conditions of Section 4.16,
(B) there is no Default or Event of Default in effect or continuing on
the date thereof, (C) the release of the Trust Moneys will not result
in a Default or Event of Default hereunder, and (D) all conditions
precedent and covenants herein provided relating to such release have
been complied with;
(iii) All documentation required under TIA s. 314(d); and
(iv) An Opinion of Counsel stating that the documents that have been
or are therewith delivered to the Collateral Agent and the Trustee
conform to the requirements of this Indenture and that all conditions
precedent herein provided for relating to such application of Trust
Moneys have been complied with.
SECTION 11.4. WITHDRAWAL OF TRUST MONEYS FOR REINVESTMENT.
To the extent that any Trust Moneys consist of Net Proceeds received by the
Trustee pursuant to the provisions of Section 4.16, and the Company intends to
reinvest such Net Proceeds in a Related Business Investment (the "Released Trust
Moneys"), such Trust Moneys may be withdrawn by the Company and shall be paid by
the Trustee to the Company (or as otherwise directed by the Company) upon a
Company Order to the Trustee and upon receipt by the Trustee of the following:
(a) A notice which shall (i) refer to this Section 11.4, (ii) contain all
documents referred to below, (iii) describe with particularity the Released
Trust Moneys and the Asset Sale from which such Released Trust Moneys were
held as Collateral, (iv) describe with particularity the Related Business
Investment to be made with respect to the Released Trust Moneys and (v) be
accompanied by a counterpart of the instruments proposed to give effect to
the release fully executed and acknowledged (if applicable) by all parties
thereto other than the Trustee;
(b) An Officer's Certificate certifying that (i) the release of the
Released Trust Moneys complies with the terms and conditions of Section
4.16, (ii) there is no Default or Event of Default in effect or continuing
on the date thereof, (iii) the release of the Released Trust Moneys will
not result in a Default or Event of Default hereunder and (iv) all
conditions precedent and covenants herein provided for relating to such
release and application of the Released Trust Moneys have been complied
with;
(c) If the Related Business Investment to be made is an investment in Real
Property:
(i) an instrument or instruments in recordable form sufficient for
the Lien of any Mortgage to cover such Real Property which, if the
Real Property is a leasehold or easement interest, shall include
normal and customary provisions with respect thereto and evidence of
the filing of all such financing statements and other instruments as
may be necessary to perfect such Liens;
(ii) a policy of title insurance (or a commitment to issue title
insurance) insuring that the Lien of this Indenture and any Mortgage
constitutes a direct and valid and perfected mortgage Lien of the
priority contemplated in Section 10.1(a) on such Real Property in an
aggregate amount equal to the fair value of the Real Property,
together with an Officers' Certificate stating that any specific
exceptions to such title insurance are Permitted Liens, together with
such endorsements and other opinions as are contemplated by Section
11.2(c);
(iii) in the event such Real Property has a fair value in excess of
$250,000, a Survey with respect thereto; and
(iv) evidence of payment or a closing statement indicating payments
to be made by the Company of all title premiums, recording charges,
transfer taxes and other costs and expenses, including reasonable
legal fees and disbursements of one counsel for the Trustee (and any
local counsel), that may be incurred to subject validly and
effectively the Real Property to the Lien of any applicable Security
Document to perfect such Lien; and
(d) If the Related Business Investment is a personal property
interest:
(i) an instrument in recordable form, if necessary, sufficient for
the Lien of any applicable Security Document to cover such personal
property interest; and
(ii) evidence of payment or a closing statement indicating payments
to be made by the Company of all filing fees, recording charges,
transfer taxes and other costs and expenses, including reasonable
legal fees and disbursements of one counsel for the Trustee (and any
local counsel), that may be incurred to subject validly and
effectively the Related Business Investment to the Lien of any
Security Document.
(e) All documentation required under TIA ss. 314(d); and
(f) An Opinion of Counsel stating that the documents that have been or are
therewith delivered to the Collateral Agent and the Trustee conform to the
requirements of this Indenture and that all conditions precedent herein
provided for relating to such application of Trust Moneys have been
complied with.
Upon compliance with the foregoing provisions of this Section, the Trustee
shall apply the Released Trust Moneys as directed and specified by the
Company.
SECTION 11.5. POWERS EXERCISABLE NOTWITHSTANDING DEFAULT OR EVENT OF
DEFAULT.
In case a Default or an Event of Default shall have occurred and shall be
continuing, the Company, while in possession of the Collateral (other than cash,
Cash Equivalents, securities and other personal property held by, or required to
be deposited or pledged with, the Trustee hereunder or under the Security
Documents), may do any of the things enumerated in Sections 11.2, 11.3 and 11.4
if the Holders of a majority in aggregate principal amount of the Notes
outstanding, by appropriate action of such Holders, shall consent to such
action, in which event any certificate filed under any of such Sections shall
omit the statement to the effect that no Default or Event of Default has
occurred and is continuing. This Section 11.5 shall not apply, however, during
the continuance of an Event of Default of the type specified in Section 6.1(a)
or (b).
SECTION 11.6. POWERS EXERCISABLE BY TRUSTEE OR RECEIVER.
In case the Collateral (other than any cash, Cash Equivalents, securities and
other personal property held by, or required to be deposited or pledged with,
the Trustee hereunder or under the Security Documents) shall be in the
possession of a receiver or trustee lawfully appointed, the powers hereinbefore
in this Article XI conferred upon the Company with respect to the withdrawal or
application of Trust Moneys may be exercised by such receiver or trustee, in
which case a certificate signed by such receiver or trustee shall be deemed the
equivalent of any Officers' Certificate required by this Article XI. If the
Trustee shall be in possession of any of the Collateral hereunder or under any
of the Security Documents, such powers may be exercised by the Trustee, in its
discretion.
SECTION 11.7. INVESTMENT OF TRUST MONEYS.
All or any part of any Trust Moneys held by the Trustee shall from time to time
be invested or reinvested by the Trustee in any Cash Equivalents pursuant to the
written direction of the Company, which shall specify the Cash Equivalents in
which such Trust Moneys shall be invested and the maturity date of such
investment. Unless an Event of Default occurs and is continuing, any interest
on such Cash Equivalents (in excess of any accrued interest paid at the time of
purchase) that may be received by the Trustee shall be forthwith paid to the
Company. Such Cash Equivalents shall be held by the Trustee as a part of the
Collateral, subject to the same provisions hereof as the cash used by it to
purchase such Cash Equivalents.
The Trustee shall not be liable or responsible for any loss resulting from such
investments or sales except only for its own grossly negligent action, its own
grossly negligent failure to act or its own willful misconduct in complying with
this Section 11.7.
ARTICLE XII.
MISCELLANEOUS
SECTION 12.1. TRUST INDENTURE ACT CONTROLS.
If any provision hereof limits, qualifies or conflicts with a provision of the
TIA or another provision that would be required or deemed under such Act to be
part of and govern this Indenture if this Indenture were subject thereto, the
latter provision shall control. If any provision of this Indenture modifies or
excludes any provision of the TIA 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 12.2. NOTICES.
Any notice or communication by the Company or the Trustee to others is duly
given if in writing and delivered in Person or mailed by first class mail
(registered or certified, return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the others' address:
If to the Company:
Keystone Consolidated Industries, Inc.
Three Lincoln Centre
5430 LBJ Freeway
Suite 1740
Dallas, Texas 75240-2697
Attention: Chief Financial Officer
Fax: (972) 458-8108
With a copy to:
Rogers & Hardin
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Alan C. Leet, Esq.
Fax: (404) 525-2224
If to the Trustee:
The Bank of New York
101 Barclay Street
Floor 21 West
New York, New York 10286
Attention: Corporate Trust Administration
Fax: (212) 815-5915
The Company or the Trustee by notice to the others may designate additional or
different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders) shall be
deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when receipt acknowledged,
if telecopied; and the next Business Day after timely delivery to the courier,
if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder, including any notice delivered in
connection with TIA ss. 310(b), 3.13(c), 3.14(a) and 3.15(b), shall be mailed by
first class mail or by overnight air courier guaranteeing next day delivery to
its address shown on the register kept by the Registrar. Any notice or
communication shall also be so mailed to any Person described in TIA s. 313(c),
to the extent required by the TIA. Failure to mail a notice or communication to
a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
If a notice or communication is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Holders, it shall mail a copy
to the Trustee and each Agent at the same time.
SECTION 12.3. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF
NOTES.
Holders may communicate pursuant to TIA s. 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA s.
312(c).
SECTION 12.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate of the Company in form and
substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 12.5 hereof) stating that, in the
opinion of the signers, all conditions precedent and covenants, if
any, provided for in this Indenture relating to the proposed action
have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 12.5 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been
satisfied.
SECTION 12.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA s. 314(a)(4)) shall comply with the provisions of TIA s. 314(e)
and shall include:
(a) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
SECTION 12.6. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of Holders.
The Registrar or Paying Agent may make reasonable rules and set reasonable
requirements for its functions.
SECTION 12.7. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company, as such, shall have any liability for any
obligations of the Company under the Notes or this Indenture, or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder of Notes by accepting a Note waives and releases all such liability.
The waiver and release are part of the consideration for issuance of the Notes.
SECTION 12.8. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY
TRIAL.
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICT
OF LAW RULES. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
INDENTURE AND THE NOTES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER OF THE NOTES
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
SECTION 12.9. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture, loan or debt
agreement of the Company or its Subsidiaries or of any other Person. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall bind their
successors. All agreements of the Trustee in this Indenture shall bind its
successors.
SECTION 12.11. SEVERABILITY.
In case any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 12.12. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same agreement.
SECTION 12.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the Articles and
Sections of this Indenture, which have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
SECTION 12.14. QUALIFICATION OF INDENTURE.
The Company shall qualify this Indenture under the TIA in accordance with the
terms and conditions of the Registration Rights Agreement and shall pay all
reasonable costs and expenses (including attorneys' fees for the Company, the
Trustee and the Holders of the Notes) incurred in connection therewith,
including, but not limited to, costs and expenses of qualification of the
Indenture and the Notes and printing this Indenture and the Notes. The Trustee
shall be entitled to receive from the Company any such Officers' Certificates of
the Company, Opinions of Counsel or other documentation as it may reasonably
request in connection with any such qualification of this Indenture under the
TIA.
SECTION 12.15. ADDITIONAL RIGHTS OF HOLDERS OF REGISTRABLE NOTES.
In addition to the rights provided to Holders of Notes under this Indenture,
Holders of Registrable Notes shall have all the rights set forth in the
Registration Rights Agreement.
[Signatures on following page]
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, by one of their duly authorized officers, all as of the date first
above written.
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
By:/s/ RALPH P. END
Name: Ralph P. End
Title: Vice President and General Counsel
THE BANK OF NEW YORK, AS TRUSTEE
By:/s/ THOMAS B. ZAKRZEWSKI
Name: Thomas B. Zakrzewski
Title: Assistant Vice President
Execution Copy
REGISTRATION RIGHTS AGREEMENT
Dated as of August 7, 1997
Among
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
as Issuer
and
WASSERSTEIN PERELLA SECURITIES, INC.
and
PAINEWEBBER INCORPORATED
as Initial Purchasers
TABLE OF CONTENTS
Page
1. Definitions................................................1
2. Exchange Offer.............................................7
3. Shelf Registration.........................................13
4. Liquidated Damages.........................................15
5. Registration Procedures....................................18
6. Registration Expenses......................................31
7. Indemnification............................................32
8. Rules 144 and 144A.........................................38
9. Underwritten Registrations.................................39
10. Miscellaneous.............................................39
(a) No Inconsistent Agreements..........................39
(b) Adjustments Affecting Registrable Notes.............40
(c) Amendments and Waivers..............................40
(d) Notices.............................................41
(e) Successors and Assigns..............................43
(f) Counterparts........................................43
(g) Headings............................................43
(h) Governing Law.......................................43
(i) Severability........................................44
(j) Third Party Beneficiaries...........................44
(k) Entire Agreement....................................44
(l) Underwriting Agreement..............................45
(m) Termination.........................................45
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
August 7, 1997 among Keystone Consolidated Industries, a Delaware corporation
(the "Company"), Wasserstein Perella Securities, Inc. and PaineWebber
Incorporated (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated August 4, 1997, between the Company and the Initial Purchasers
(the "Purchase Agreement") which provides for the sale by the Company to the
Initial Purchasers of $100,000,000 aggregate principal amount of the Company's 9
5/8% Senior Secured Notes Due 2007 (the "Notes"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement for the benefit
of the Initial Purchasers and their respective direct and indirect transferees
and assigns. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Company: See the introductory paragraphs hereto.
Effectiveness Date: The 120th day after the Issue Date.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: The 45th day after the Issue Date.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of August 7, 1997 between the
Company and The Bank of New York, as Trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: See the introductory paragraphs hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: The date on which the Notes were originally issued under
the Indenture.
Liquidated Damages: See Section 4(a) hereof.
NASD: See Section 5(t) hereof.
New Notes: See Section 2(a) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2(b) hereof.
Person: An individual, trustee, corporation, partnership, joint stock
company, trust, unincorporated association, union, business association, firm or
other legal entity.
Private Exchange: See Section 2(b) hereof.
Private New Notes: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note upon original issuance of the Notes and
at all times subsequent thereto, each New Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private New Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, New Note or Private New
Note, as the case may be, the earliest to occur of (i) a Registration Statement
(other than, with respect to any New Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note, New
Note or such Private New Note having been declared effective by the SEC and such
Note or such Private New Note, as the case may be, having been disposed of in
accordance with such effective Registration Statement, (ii) such Note, New Note
or Private New Note, as the case may be, being eligible for sale to the public
pursuant to Rule 144, (iii) such Note having been exchanged for an New Note
pursuant to an Exchange Offer which may be resold without restriction under
state and federal securities laws, or (iv) such Note, New Note or Private New
Note, as the case may be, ceasing to be outstanding for purposes of the
Indenture.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Offer Registration Statement, filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
Subsequent Shelf Registration Statement: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any subsequent indenture governing the New Notes and Private New
Notes (if any).
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) The Company shall file with the SEC no later than the Filing
Date, a registration statement under the Securities Act with respect to a
registered offer to exchange (the "Exchange Offer") any and all of the
Registrable Notes (other than Private New Notes, if any) for a like aggregate
principal amount of debt securities of the Company which are substantially
similar in all material respects to the Notes (the "New Notes"), except that the
New Notes shall have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no restrictive legend
thereon, and which are entitled to the benefits of the Indenture or a trust
indenture which is identical in all material respects to the Indenture (other
than such changes to the Indenture or any such identical trust indenture as are
necessary to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA. The Exchange Offer shall be registered under the
Securities Act on an appropriate form (the "Exchange Offer Registration
Statement") and shall comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company shall use best efforts to cause
the Exchange Offer Registration Statement to be declared effective under the
Securities Act on or before the Effectiveness Date. Upon the Exchange Offer
Registration Statement being declared effective, the Company will offer the New
Notes in exchange for surrender of the Notes. The Company will keep the
Exchange Offer open for at least 30 days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders. For
purposes of this Section 2(a) only, if after such Exchange Offer Registration
Statement is initially declared effective by the SEC, the Exchange Offer or the
issuance of the New Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Exchange Offer Registration Statement shall be deemed not
to have become effective for purposes of this Agreement. Each Holder who
participates in the Exchange Offer will be required to represent that any New
Notes received by it will be acquired in the ordinary course of its business,
that at the time of the consummation of the Exchange Offer such Holder will have
no arrangement or understanding with any Person to participate in the
distribution of the New Notes in violation of the provisions of the Securities
Act, and that such Holder is not an affiliate of the Company within the meaning
of the Securities Act. Upon consummation of the Exchange Offer in accordance
with this Section 2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Notes that are Private New
Notes and New Notes held by Participating Broker-Dealers, and the Company shall
have no further obligation to register Registrable Notes pursuant to Section 3
hereof (other than Private New Notes and other than in respect of any New Notes
as to which clause 2(c)(iv) hereof applies). No securities other than the New
Notes shall be included in the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement certain information necessary to allow a
broker-dealer who holds Notes that were acquired for its own account as a result
of market-making activities or other ordinary course trading activities (other
than Notes acquired directly from the Company or one of the Company's
affiliates) to exchange such Notes pursuant to the Exchange Offer and to satisfy
the prospectus delivery requirements in connection with resales of New Notes
received by such broker-dealer in the Exchange Offer, including a section
entitled "Plan of Distribution," reasonably acceptable to the Initial
Purchasers, which shall contain a summary statement of the positions taken or
policies made by the Staff of the Division of Corporation Finance of the SEC
(the "Staff") with respect to the potential "underwriter" status of any broker-
dealer that is the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of New Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the Staff or such positions or policies, in the
judgment of the Initial Purchasers, represent the prevailing views of the Staff.
Such "Plan of Distribution" section shall also expressly permit the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the New Notes. Each broker-dealer that receives New Notes for its own account
in exchange for Notes where such Notes were acquired by such broker-dealer as a
result of market-making activities must acknowledge that it will comply with any
prospectus delivery requirements under the Securities Act in connection with any
resale of New Notes.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the New Notes; provided, however, that such period
shall not exceed 120 days after the Exchange Offer Registration Statement is
declared effective (or such longer period if extended pursuant to the last
paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, or any other Holder is not entitled to participate in the
Exchange Offer, the Company upon the request of the Initial Purchasers or any
such Holder shall simultaneously with the delivery of the New Notes in the
Exchange Offer, issue and deliver to the Initial Purchasers and any such Holder,
in exchange (the "Private Exchange") for such Notes held by the Initial
Purchasers and any such Holder, a like principal amount of debt securities of
the Company that are substantially similar in all material respects to the New
Notes except for any such restrictions on transfer that, in the opinion of
counsel for the Company, are required under the Securities Act (the "Private New
Notes") (and which are issued pursuant to the same indenture as the New Notes);
provided, however, the Company shall not be required to effect such exchange if,
in the written opinion of counsel for the Company (a copy of which shall be
delivered to the Initial Purchasers and any Holder affected thereby), such
exchange cannot be effected without registration under the Securities Act. The
Private New Notes shall bear the same CUSIP number as the New Notes.
Interest on the New Notes and the Private New Notes will accrue from
(A) the later of (i) the last interest payment date as of which interest was
paid on the Notes surrendered in exchange therefor or (ii) if the Notes are
surrendered for exchange on a date in a period which includes the record date
for an interest payment date to occur on or after the date of such exchange and
as to which interest will be paid, the date of such interest payment date or (B)
if no interest has been paid on the Notes, from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, the City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last business day on which the
Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, New Notes or Private New Notes, as the case may be, equal
in principal amount to the Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or the Private Exchange,
as the case may be, does not violate applicable law or any applicable
interpretation of the Staff, (ii) no action or proceeding is instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Company to proceed with the Exchange Offer or the
Private Exchange and no material adverse development has occurred in any
existing action or proceeding with respect to the Company and (iii) all
governmental approvals have been obtained, which approvals the Company deems
necessary for the consummation of the Exchange Offer or Private Exchange.
The New Notes and the Private New Notes may be issued under (i) the
Indenture or (ii) an indenture identical in all material respects to the
Indenture, which in either event shall provide that the New Notes shall not be
subject to the transfer restrictions set forth in the Indenture. The Indenture
or such indenture shall provide that the New Notes, the Private New Notes and
the Notes shall vote and consent together on all matters as one class and that
neither the New Notes, the Private New Notes or the Notes will have the right to
vote or consent as a separate class on any matter.
(c) If (i) the Company determines in reasonably good faith based upon
advice of counsel reasonably acceptable to the Initial Purchasers that (x) any
changes in law or in the applicable interpretations of the Staff of the SEC do
not permit the Company to effect an Exchange Offer prior to the Effectiveness
Date, or (y) that the New Notes would not be tradeable upon receipt by the
Holders that participate in the Exchange Offer without restriction under
applicable state and federal securities laws (other than due solely to the
status of a Holder as an affiliate of the Company within the meaning of the
Securities Act), (ii) the Exchange Offer is not consummated within 150 days of
the Issue Date, (iii) any holder of Private New Notes so requests within 120
days after the consummation of the Private Exchange, or (iv) in the case of any
Holder that participates in the Exchange Offer, such Holder does not receive New
Notes on the date of the exchange that may be sold without restriction under
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company within the meaning of the Securities Act)
and so notifies the Company within 60 days after such Holder first becomes aware
of any such restriction and provides the Company with a reasonable basis for its
conclusion, in the case of each of clauses (i), (ii), (iii) and (iv) of this
sentence, then the Company shall promptly deliver to the Holders of Registrable
Notes and the Trustee written notice thereof (the "Shelf Notice") and shall file
a Shelf Registration pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf Registration. The Company shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes (the "Shelf Registration
Statement"). If the Company shall not have filed an Exchange Offer Registration
Statement, the Company shall use its best efforts to file with the SEC the Shelf
Registration Statement as promptly as practicable, but no later than 30 days
from the delivery of the Shelf Notice. The Shelf Registration Statement shall
be on Form S-1 or another appropriate form permitting registration of such
Registrable Notes for resale by Holders in the manner or manners designated by
them (including, without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the Registrable Notes to be
included in the Shelf Registration Statement or any Subsequent Shelf
Registration Statement.
The Company shall use its best efforts to cause the initial Shelf
Registration Statement to be declared effective under the Securities Act by the
60th day after delivery of the Shelf Notice and to keep the Shelf Registration
Statement continuously effective under the Securities Act until the date which
is 24 months from its effective date, subject to extension pursuant to the last
paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when (i) all Registrable Notes covered by the Shelf Registration
Statement have been sold in the manner set forth and as contemplated in the
initial Shelf Registration Statement or (ii) a Subsequent Shelf Registration
Statement covering all of the Registrable Notes has been declared effective
under the Securities Act.
(b) Subsequent Shelf Registrations. If the initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), the
Company shall use all reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 45
days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant to Rule
415 covering all of the Registrable Notes (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is filed, the Company
shall use its best efforts to cause the Subsequent Shelf Registration to be
declared effective under the Securities Act as soon as practicable after such
filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Shelf Registration Statement or any
Subsequent Shelf Registration was previously effective. As used herein the term
"Shelf Registration Statement" means the Shelf Registration Statement and any
Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend the Shelf Registration Statement if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration Statement, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
4. Liquidated Damages
(a) The Company and the Initial Purchasers agree that the Holders of
Notes will suffer damages if the Company fails to fulfill its obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Company agrees to pay,
liquidated damages to each Holder of Notes, with respect to the first 90-day
period immediately following the occurrence of a Registration Default (as
defined below) in an amount equal to $.05 per week per $1,000 principal amount
of Notes held by such Holder ("Liquidated Damages"). For any portion of a week
that the Registration Default continues, such Liquidated Damages shall be
calculated on a pro-rata basis. The amount of Liquidated Damages will increase
by an additional $.05 per week per $1,000 principal amount of Notes with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Liquidated Damages of $.25 per week per $1,000
principal amount of Notes. Each event referred to in clauses (i) through (iii)
below will constitute a "Registration Default" and each such event shall be
given independent effect:
(i) if the Exchange Offer Registration Statement has not been
filed on or prior to the 45th calendar day following the Issue Date,
then commencing on the 46th day after the Issue Date, the Company
shall pay Liquidated Damages over and above the accrued interest on
the Notes;
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 120th calendar day following
the Issue Date, then commencing on the 121st day after the Issue Date,
the Company shall pay Liquidated Damages on the Notes included or
which should have been included in such Exchange Offer Registration
Statement over and above the accrued interest on the Notes; and
(iii) if (A) the Exchange Offer is not consummated on or
prior to the 150th calendar day following the Issue Date and a Shelf
Notice has not been delivered with respect to all Notes eligible for
exchange in the Exchange Offer on or prior to such 150th calendar day,
(B) if a Shelf Notice is delivered and the Shelf Registration
Statement is not filed within 30 days or the Shelf Registration
Statement is not declared effective on or prior to the 60th calendar
day following the delivery of the Shelf Notice or (C) if applicable,
the Shelf Registration Statement has been declared effective and
ceases to be effective (except as specifically permitted therein)
without being succeeded within 45 days by an additional registration
statement filed and declared effective, then commencing on the day
immediately following the date of such Registration Default, the
Company shall pay Liquidated Damages over and above the accrued
interest on the Notes;
provided, however, that (1) upon the filing of the Exchange Offer Registration
Statement (in the case of clause (i) of this Section 4(a)), (2) upon the
effectiveness of the Exchange Offer Registration Statement (in the case of
clause (ii) of this Section 4(a)), or (3) upon the consummation of the Exchange
Offer (in the case of clause (iii)(A) of this Section 4(a)), or upon the filing
of or the effectiveness of the Shelf Registration Statement (in the case of
clause (iii)(B) of this Section 4(a)), or upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective (except as
specifically permitted therein) without being succeeded immediately by an
additional registration statement filed and declared effective (in the case of
clause (iii)(C) of this Section 4(a)), Liquidated Damages on the Notes as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue; and provided further, that no Liquidated Damages shall be
paid with respect to any Note (i) subsequent to the time of the consummation of
the Exchange Offer with respect to such Note, or (ii) at any time that a Shelf
Registration Statement is available with respect to such Note. Notwithstanding
the foregoing, the Company shall not be required to pay Liquidated Damages with
respect to the Notes of a Holder if the applicable Registration Default arises
from the Company's failure to file, or cause to become effective, a Shelf
Registration Statement within the time periods specified in this Section 4 by
reason of the failure of such Holder to provide such information as (i) the
Company may reasonable request, with reasonable prior written notice, for use in
the Shelf Registration Statement or any Prospectus included therein to the
extent the Company reasonably determines that such information is required to be
included therein by applicable law, (ii) the NASD or the SEC may request in
connection with such Shelf Registration Statement or (iii) is required to comply
with the agreements of such Holder as contained in the penultimate paragraph of
Section 5 to the extent compliance thereof is necessary for the Shelf
Registration Statement to be declared effective.
(b) The Company shall notify the Trustee within one business day
after each Registration Default (an "Event Date"). Any amounts of Liquidated
Damages due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash semi-annually on each August 1 and February 1 (to the holders of
record on the August 1 and February 1 immediately preceding such dates),
commencing with the first such date occurring after any such Liquidated Damages
commences to accrue. Any such Liquidated Damages will be paid by the Company to
the Holder of Global Notes (as defined in the Indenture) by wire transfer of
same day funds and to Holders of Certificated Notes (as defined in the
Indenture) by wire transfer to the accounts specified by them or by mailing
checks to their registered addresses if no such accounts have been specified.
Following the cure of all Registration Defaults, the accrual of Liquidated
Damages will cease.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Company hereunder the Company
shall:
(a) Prepare and file with the SEC on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Sections 2 or
3 hereof, and use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided, however,
that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant to Section
2 hereof is required to be delivered under the Securities Act by any Par-
ticipating Broker-Dealer who seeks to sell New Notes during the Applicable
Period, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, one counsel selected by the
Holders of a majority in aggregate principal amount of the Registrable Notes
(the "Holders' Counsel"), counsel for such Participating Broker-Dealer and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
at least five business days prior to such filing, or such later date as is
reasonable under the circumstances). The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto if
the Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement and the Holders' Counsel, or any such
Participating Broker-Dealer and its counsel, as the case may be, or the managing
underwriters, if any, shall reasonably object. A Holder or its counsel or any
such Participating Broker-Dealer and its counsel shall be deemed to have
reasonably objected to such filing if such amendment or supplement, as proposed
to be filed, contains a material misstatement or omission.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented by
any Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Company shall be deemed not to have used
its best efforts to keep a Registration Statement effective during the
Applicable Period if it voluntarily takes any action that would result in
selling Holders of the Registrable Notes covered thereby or Participating
Broker-Dealers seeking to sell New Notes not being able to sell such Registrable
Notes or such New Notes during that period unless (i) such action is required by
applicable law or (ii) such action is taken by the Company in good faith and for
valid business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, notify the selling Holders of
Registrable Notes and Holders' Counsel, or each such Participating Broker-Dealer
and their counsel, as the case may be, and the managing underwriters, if any,
promptly (but in any event within two business days), (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole expense
of the Company, one conformed copy of such Registration Statement or post-
effective amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits), (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Notes or resales of New
Notes by Participating Broker-Dealers the representations and warranties of the
Company contained in any agreement (including any underwriting agreement),
contemplated by Section 5(n) hereof, to the knowledge of the Company, cease to
be true and correct in all material respects, (iv) of the receipt by the Company
of any notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the New Notes to be sold by any Participating Broker-Dealer
for offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event, or any
information becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Company's determination that a post-
effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, use its best efforts to prevent
the issuance of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any of the
Registrable Notes or the New Notes to be sold by any Participating Broker-
Dealer, for sale in any jurisdiction, and, if any such order is issued, to use
its best efforts to obtain the withdrawal of any such order at the earliest
possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
and if requested by the managing underwriter or underwriters (if any), the
Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering or any Participating
Broker-Dealer shall (i) promptly incorporate in a prospectus supplement or post-
effective amendment such information as the managing underwriter or underwriters
(if any), their counsel, such Holders, Holders' Counsel, any Participating
Broker-Dealer or their counsel reasonably determine is necessary to be included
therein, (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to such
Registration Statement.
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, furnish to each selling Holder
of Registrable Notes, Holders' Counsel and to each such Participating Broker-
Dealer who so requests and its counsel and each managing underwriter, if any, at
the sole expense of the Company, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, deliver to each selling Holder
of Registrable Notes and Holders' Counsel, or each such Participating Broker-
Dealer and its counsel, as the case may be, and the underwriters, if any, at the
sole expense of the Company, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Registrable Notes covered by, or the sale by Participating Broker-Dealers
of the New Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement by any
Participating Broker-Dealer who seeks to sell New Notes during the Applicable
Period, use its best efforts to cooperate with the selling Holders of
Registrable Notes and Holders' Counsel or each such Participating Broker-Dealer
and its counsel, as the case may be, the managing underwriter or underwriters,
if any, and their counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such Registrable Notes
for offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating Broker-Dealer, or
the managing underwriter or underwriters reasonably request; provided, however,
that where New Notes held by Participating Broker-Dealers or Registrable Notes
are offered other than through an underwritten offering, the Company agrees to
cause the Company's counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); keep each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the New Notes held
by Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that the Company shall not
be required (A) to qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) to take any action that would subject it to
general service of process in any such jurisdiction where it is not then so
subject or (C) to subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may request.
(j) Use its best efforts to cause the Registrable Notes covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Notes, except as may be required
solely as a consequence of the nature of such selling Holder's business, in
which case the Company will cooperate in all reasonable respects with the filing
of such registration statement and the granting of such approvals; provided,
however, that the Company shall not be required (A) to qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) to subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction where it
is not then so subject.
(k) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section 5(a) hereof) file with the SEC, at the sole
expense of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the New
Notes to whom such Prospectus will be delivered by a Participating Broker-
Dealer, any such Prospectus will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(l) Use its best efforts to cause the Registrable Notes covered by a
Registration Statement or the New Notes, as the case may be, to be rated with
the appropriate rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Registrable Notes covered by such Registration
Statement or the New Notes, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates for
the Registrable Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Registrable Notes.
(n) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration Statement, enter into an underwriting agreement
as is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriter or underwriters in order to expedite or facilitate the
registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each case, as
are customarily made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, and confirm the same in writing at the
closing under such underwriting agreement; (ii) use best efforts to obtain the
written opinions of counsel to the Company and written updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by the managing underwriter or underwriters;
(iii) use best efforts to obtain "cold comfort" letters and updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the Company
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by the
managing underwriter or underwriters as permitted by the Statement on Auditing
Standards No. 72; and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at each closing
under such underwriting agreement, or as and to the extent required thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell New Notes during the Applicable Period, make available for inspection by
any selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter participating
in any such disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate documents
and instruments of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise any
applicable due diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement; provided, however, that all information shall be kept confidential by
each such Inspector, except to the extent that (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction, (iii)
disclosure of such information is, in the opinion of counsel for any Inspector,
necessary or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement, or any
transactions contemplated hereby or arising hereunder; provided, however, that
prior notice be provided as soon as practicable to the Company of the potential
disclosure of any information by such Inspector pursuant to clause (ii) or this
clause (iii) to permit the Company to obtain a protective order (or waive the
provisions of this paragraph (o)) and that such Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of such
information to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the Holders or any
Inspector, or (iv) the information in such Records has been made generally
available to the public by the Company. Each selling Holder of such Registrable
Notes and each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be deemed
confidential, shall be used only for due diligence purposes pursuant to this
Section 5(p) and shall not be used by it as the basis for any market
transactions in the securities of the Issuer unless and until such information
is generally available to the public. Each selling Holder of such Registrable
Notes and each such Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give notice to the Company and allow the
Company to undertake appropriate action to prevent disclosure of the Records
deemed confidential at the Company's sole expense.
(p) Provide an indenture trustee for the Registrable Notes or the New
Notes, as the case may be, and cause the Indenture or the trust indenture
provided for in Section 2(a) hereof, as the case may be, to be qualified under
the TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the Holders
of the Registrable Notes, to effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its best efforts to cause such trustee to execute,
all documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the New Notes or Private New Notes, as the
case may be, and the related indenture constitute legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, subject to customary exceptions and qualifications.
(s) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to such
other Person as directed by the Company) in exchange for the New Notes or the
Private New Notes, as the case may be, the Company shall mark, or cause to be
marked, on such Registrable Notes that such Registrable Notes are being
cancelled in exchange for the New Notes or the Private New Notes, as the case
may be; in no event shall such Registrable Notes be marked as paid or otherwise
satisfied.
(t) Cooperate with each seller of Registrable Notes covered by any
Registration Statement, Holders' Counsel and each underwriter, if any,
participating in the disposition of such Registrable Notes and its counsel in
connection with any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD") .
(u) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the New Notes and/or Registrable Notes
covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Company such information
regarding such seller and the distribution of such Registrable Notes as the
Company may, from time to time, reasonably request. The Company may exclude
from such registration the Registrable Notes of any seller who fails to furnish
such information within a reasonable time after receiving such request. Each
seller as to which any registration pursuant to a Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or New Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon actual receipt of
any notice from the Company of the happening of any event of the kind described
in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or New Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto and, if so directed by the Company, such Holder or
Participating Broker-Dealer, as the case may be, will deliver to the Company all
copies, other than permanent file copies, then in such Holder's or Participating
Broker-Dealer's possession, of the Prospectus covering such Registrable Notes
current at the time of receipt of such notice. In the event the Company shall
give any such notice, each of the Effectiveness Period and the Applicable Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when each seller
of Registrable Notes covered by such Registration Statement or New Notes to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer or a Shelf Registration Statement is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or New Notes
and determination of the eligibility of the Registrable Notes or New Notes for
investment under the laws of such jurisdictions (x) where the holders of
Registrable Notes are located, in the case of the New Notes, or (y) as provided
in Section 5(h) hereof, in the case of Registrable Notes or New Notes to be sold
by a Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Notes or New Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Registrable Notes
or New Notes to be sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Company and reasonable fees and
disbursements of Holders' Counsel (subject to the provisions of Section 6(b)
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees,
(vii) Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Company, (ix)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (xii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) The Company shall reimburse the Holders of the Registrable Notes
being registered in a Shelf Registration Statement for the reasonable fees and
disbursements of Holders' Counsel (in addition to appropriate local counsel) and
other out-of-pocket expenses of such Holders of Registrable Notes incurred in
connection with the registration and sale of the Registrable Notes.
7. Indemnification
(a) In the event of a Shelf Registration Statement or in connection
with any delivery by any Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, the Company agrees to indemnify and
hold harmless each Holder of Registrable Notes and each Participating Broker-
Dealer selling New Notes during the Applicable Period, each Person, if any, who
controls any such Person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, together with each of their
respective directors, partners, officers, employees, representatives and agents
(each, a "Participant"), from and against any and all losses, claims, damages
and liabilities (including, without limitation, and subject to Section 7(c)
below, the reasonable legal fees and other expenses actually incurred in
connection with any suit, action or proceeding or any claim asserted) caused by,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary Prospectus,
or caused by, arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in the case of the Prospectus, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to any Participant furnished to the Company
in writing by such Participant expressly for use therein; provided, however,
that the Company shall not be required to indemnify any such Person if such
untrue statement or omission or alleged untrue statement or omission was
contained or made in any preliminary prospectus and corrected in the Prospectus
or any amendment or supplement thereto and the Prospectus does not contain any
other untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and any such
loss, liability, claim, damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any Person who purchased
Registrable Notes or New Notes which are the subject thereof from such
Participant and it is established in the related proceeding that such
Participant failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Registrable Notes or New Notes sold to such Person if required by
applicable law, unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company and each Person who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, together with each of their respective directors, partners, officers,
employees, representatives and agents, to the same extent as the foregoing
indemnity from the Company to each Participant, but only with reference to
information relating to such Participant furnished to the Company in writing by
such Participant expressly for use in any Registration Statement or Prospectus,
any amendment or supplement thereto, or any preliminary prospectus. The
liability of any Participant under this paragraph shall in no event exceed the
proceeds received by such Participant from sales of Registrable Notes or New
Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Company and the Company was not otherwise aware of such action or claim).
In any such proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and the
Indemnified Person shall have mutually agreed in writing to the contrary, (ii)
the Indemnifying Person shall have failed within a reasonable period of time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person or any affiliate and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that,
unless there exists a conflict among Indemnified Persons, the Indemnifying
Person shall not, in connection with any one such proceeding or separate but
substantially similar related proceeding in the same jurisdiction arising out of
the same general allegations, be liable for the fees and expenses of more than
one separate firm (in addition to any appropriate local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be reimbursed
promptly after receipt of the invoice therefor as they are incurred. Any such
separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Notes and New Notes sold by all such Participants and any such
separate firm for the Company, its directors, its officers and such control
Persons of the Company shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there be a final
judgment for the plaintiff for which the Indemnified Person is entitled to
indemnification pursuant to this Agreement, the Indemnifying Person agrees to
indemnify and hold harmless each Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for reasonable fees and
expenses actually incurred by counsel as contemplated by the second sentence of
this paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its prior written consent if (i)
such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying Person
shall not have reimbursed the Indemnified Person in accordance with such request
prior to the date of such settlement; provided, however, that the Indemnifying
Person shall not be liable for any settlement effected without its consent
pursuant to this sentence if the Indemnifying Person is contesting, in good
faith, the request for reimbursement. No Indemnifying Person shall, without the
prior written consent of the Indemnified Persons (which consent shall not be
unreasonably withheld), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement or compromise (A) includes an
unconditional written release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to (other than by
reason of exceptions provided therein), or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Notes or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Participants on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of discounts and
commissions but before deducting expenses) of the Notes received by the Company
bears to the total proceeds received by such Participant from the sale of
Registrable Notes or New Notes, as the case may be. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or such Participant or such other Indemnified Person, as the
case may be, on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
New Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the indemnified Persons referred to above.
8. Rules 144 and 144A
The Company covenants to file with the Trustee, within 15 days after the
Company is required to file the same with the SEC, copies of the annual reports
and of the information, documents and other reports which the Company may be
required to file with the SEC pursuant to Section 13 or Section 15(d) of the
Exchange Act. If, during any period in which Registrable Notes with an
aggregate principal amount equal to or greater than ten percent of the aggregate
principal amount of Registrable Notes originally issued under the Indenture are
outstanding, the Company is not obligated to file annual reports, documents or
other reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act,
the Company will furnish to the Trustee the same such annual reports documents
or other reports as if the Company were so subject. The Company further
covenants, for so long as any Registrable Notes remain outstanding, to make
available to any Holder or beneficial owner of Registrable Notes in connection
with any sale thereof and any prospective purchaser of such Registrable Notes
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A, unless the Company is then subject to
Section 13 or 15(d) of the Exchange Act and reports filed thereunder satisfy the
information requirements of Rule 144A(d)(4) as then in effect.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements{tc "(a) No Inconsistent Agreements"
\f C \l 2}. The Company has not, as of the date hereof, and the Company shall
not after the date of this Agreement, enter into any agreement with respect to
any of its securities that is inconsistent with the rights granted to the
Holders of Registrable Notes in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the rights granted to the
holders of the Company's other issued and outstanding securities under any such
agreements. The Company has not entered and will not enter into any agreement
with respect to any of its securities which will grant to any Person piggy-back
registration rights with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Notes{tc "(b) Adjustments
Affecting Registrable Notes" \f C \l 2}. The Company shall not, directly or
indirectly, take any action with respect to the Registrable Notes as a class
that would adversely affect the ability of the Holders of Registrable Notes to
include such Registrable Notes in a registration undertaken pursuant to this
Agreement.
(c) Amendments and Waivers{tc "(c) Amendments and Waivers" \f C \l
2}. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of (A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the New Notes
held by all Participating Broker-Dealers; provided, however, that Section 7 and
this Section 10(c) may not be amended, modified or supplemented without the
prior written consent of each Holder and each Participating Broker-Dealer
(including any person who was a Holder or Participating Broker-Dealer of
Registrable Notes or New Notes, as the case may be, disposed of pursuant to any
Registration Statement). Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold by such Holders pursuant to
such Registration Statement.
(d) Notices{tc "(d) Notices" \f C \l 2}. Any notice, consent,
request, instruction, approval and other communication provided for herein shall
be in writing, shall be delivered or sent by mail or facsimile transmission and
shall be deemed validly given, made or served (i) on the date on which it is
delivered personally with receipt acknowledged, (ii) five business days after it
is sent by registered or certified mail (receipt requested and postage prepaid),
(iii) one business day after it is sent by overnight courier (charges prepaid)
or (iv) on the same business day when sent before 5:00 p.m., recipient's time
(and on the next business day when set after 5:00 p.m., recipient's time) by
telecopier, transmission confirmed and charges prepaid. Such notices shall be
in writing and:
(1) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, such notice shall be addressed to the most current address
of such Holder or Participating Broker-Dealer, as the case may be, set
forth on the records of the registrar under the Indenture, with a copy in
like manner to the Initial Purchasers as follows:
Wasserstein Perella Securities, Inc.
31 West 52nd Street
New York, New York 10019
Attention: General Counsel
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Attention: General Counsel
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022
Facsimile No: (212) 821-8111
Attention: William J. Grant, Jr., Esq.
(2) if to the Initial Purchasers, such notice shall be addressed as
specified in Section 10(d)(1);
(3) if to the Company, such notice shall be addressed as follows:
Keystone Consolidated Industries, Inc.
Three Lincoln Centre
5430 LBJ Freeway, Suite 1740
Dallas, Texas 75240
Facsimile No: (972) 458-8108
Attention: Ralph P. End, Esq.
General Counsel
with a copy to:
Rogers & Hardin
2700 International Tower
229 Peachtree Street, N.E.
Atlanta, Georgia 30303
Facsimile No: (404) 525-2224
Attention: Alan C. Leet, Esq.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof.
(e) Successors and Assigns{tc "(e) Successors and Assigns" \f C \l
2}. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto, the Holders and the
Participating Broker-Dealers; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless such successor or assign holds Registrable Notes.
(f) Counterparts{tc "(f) Counterparts" \f C \l 2}. This Agreement
may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
(g) Headings{tc "(g) Headings" \f C \l 2}. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(h) Governing Law{tc "(h) Governing Law" \f C \l 2}. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability{tc "(i) Severability" \f C \l 2}. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, and the parties hereto shall use their best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid, illegal,
void or unenforceable.
(j) Third Party Beneficiaries{tc "(j) Third Party Beneficiaries" \f
C \l 2}. Holders of Registrable Notes and Participating Broker-Dealers are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(k) Entire Agreement{tc "(k) Entire Agreement" \f C \l 2}. This
Agreement, together with the Purchase Agreement and the Indenture, is intended
by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein and any and all prior oral or written agreements,
representations, or warranties, contracts, understandings, correspondence,
conversations and memoranda between the Initial Purchasers on the one hand and
the Company on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
(l) Underwriting Agreement{tc "(l) Underwriting Agreement" \f C \l
2}. Notwithstanding the provisions of Sections 3(d), 5, 6 and 7, in the event
of a Shelf Registration pursuant to Section 3 hereof, to the extent that the
Holders of Registrable Notes shall enter into an underwriting or similar
agreement, which agreement contains provisions covering one or more issues
addressed in such Sections with substantially similar effect, the provisions
contained in such Sections addressing such issue or issues shall be of no force
or effect with respect to the registration of securities being effected in
connection with such underwriting or similar agreement.
(m) Termination{tc "(m) Termination" \f C \l 2}. This Agreement
shall terminate and be of no further force or effect when there shall not be any
Registrable Notes, except that the provisions of Section 4, 6, 7 and Sections
10(h) and (j) shall survive any such termination.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
KEYSTONE CONSOLIDATED INDUSTRIES, INC.
By:/s/ RALPH P. END
Name: Ralph P. End
Title: Vice President and General Counsel
WASSERSTEIN PERELLA SECURITIES, INC.
By:/S/ JAMES C. KINGSBERY
Name: James C. Kingsbery
Title: Treasurer
PAINEWEBBER INCORPORATED
By: /S/ JAMES C. MURPHY
Name: James C. Murphy
Title: Vice President
FOR FURTHER INFORMATION:
AT KEYSTONE: AT THE FINANCIAL RELATIONS BOARD:
Robert W. Singer General Analyst Media
President and Inquiries: Inquiries: Inquiries:
CEO Marilyn Windsor Bill Schmidle Laura Kuhlmann
(972) 458-0028 (312) 640-6692 (312) 640-6753 (312) 640-6727
FOR IMMEDIATE RELEASE
THURSDAY, AUGUST 7, 1997
KEYSTONE COMPLETES PRIVATE PLACEMENT OF $100 MILLION OF
SENIOR SECURED NOTES
DALLAS, AUGUST 7, 1997 - KEYSTONE CONSOLIDATED INDUSTRIES, INC. (NYSE: KES), an
integrated wire producer, today announced it has completed a private placement
of $100 million principal amount of 9-5/8 percent senior secured notes maturing
in August 2007.
The senior secured notes were issued and sold in a Rule 144A private placement
to institutional investors. Wasserstein Perella Securities, Inc. and
PaineWebber Incorporated were the initial purchasers of the senior secured
notes. Keystone intends to use a portion of the net proceeds from the
transaction to repay approximately %53 million of outstanding indebtedness.
"This offering substantially increases our capital and flexibility," said
Keystone's president and chief executive officer, Robert W. Singer. "We plan to
use the balance of the net proceeds for general corporate purposes, primarily
financing capital expenditures."
The senior secured notes have not been registered under the Securities Act of
1933, as amended, or under the securities law of any state and may not be
offered or sold in the United States or in any such state absent an applicable
exemption from registration under the Securities Act and any such law.
Keystone Consolidated Industries, is headquartered in Dallas, Texas. The
company is a leading manufacturer and distributor of fencing and wire products,
carbon steel rod, industrial wire, nails and construction products for the
agricultural, industrial, construction, original equipment markets and the
retail consumer. Through its DeSoto subsidiary, it engages in the production
and packaging of household cleaning products. Keystone is traded on the New
York Stock Exchange under the symbol of KES.
FOR ADDITIONAL INFORMATION REGARDING KEYSTONE FREE OF CHARGE VIA FAX, DIAL
1-800-PRO-INFO AND USE THE COMPANY'S STOCK SYMBOL, "KES."
