FORM 8-A/A
AMENDMENT NO. 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE PENN TRAFFIC COMPANY
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(Exact name of registrant as specified in its charter)
Delaware 25-0716800
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
1200 State Fair Boulevard
Syracuse, New York 13221
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act: None
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Common stock, par
value $.01 per share
Page 1
This document consists of 5 pages.
The exhibit index is contained on page 5 of this document.
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Item 1. Description of Registrant's Securities to be Registered.
In connection with the effectiveness of The Joint Plan of
Reorganization of The Penn TrafficCompany (the "Company") and certain of its
subsidiaries (the "Plan"), the Company will be issuing shares of new common
stock, par value $.01 per share ("New Common") in exchange for its existing
common stock, par value $1.25 per share ("Old Common"), and its five tranches of
existing senior notes. Under the Plan, the Company will amend and restate on the
effective date of the Plan (the "Effective Date") its certificate of
incorporation to provide for the authority to issue on the Effective Date
30,000,000 shares of New Common. Dividends may be paid with respect to the New
Common when and if declared by the Company's Board of Directors out of funds
properly available therefor, subject to restrictions upon the payment of
dividends to be contained in the Company's bank debt agreement and in the
indenture (the "Indenture") relating to the Company's 11% Senior Notes due 2009
(the "Senior Notes"), each of which will be executed on the Effective Date. See
"Certain Restrictions" below. Holders of shares of New Common do not have
preemptive or other subscription rights, or redemption or conversion rights;
however, such holders would participate ratably in any distribution of assets to
holders thereof in a liquidation after payment in respect of any preferred
shares then outstanding. Each share of Common Stock is entitled to one vote on
all matters on which shareholders are entitled or permitted to vote, including
the election of directors, for which there are no cumulative voting rights. The
New Common will be freely tradeable by the holders thereof except for certain
persons who receive New Common as part of the Plan and are deemed to be
affiliates of the Company. A copy of the Amended and Restated Certificate of
Incorporation of the Company, which sets forth the rights and privileges of the
New Common is attached to this filing as Exhibit 1.
The transfer agent and registrar for the New Common is Harris
Trust Company of New York, 88 Pine Street, New York, New York 10005.
The shares of New Common have been listed on the OTC Bulletin
Board. The Company presently intends to withdraw the New Common from this
listing subsequent to the time as the New Common is admitted to trading on The
Nasdaq National Market or another national securities exchange.
Preferred Stock
The Company is also authorized to issue 1,000,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock"). No shares of
Preferred Stock will initially be outstanding upon consummation of the Plan. The
Board of Directors of the Comany has the authority by resolution to issue shares
of Preferred Stock in one or more series, and to fix the number of shares
constituting any such series, the voting powers, designations, preferences and
relative participating, optional or other special rights and qualifications,
limitations or restrictions thereof, including the dividend rights, dividend
rate, ranking, terms
Page 2
<PAGE>
of redemption (including sinking fund provisions), redemption price or prices,
conversion rights and liquidation preferences of the share constituting any
series, without any further vote or action by the shareholders of the Company.
Certain Restrictions
The Indenture will contain certain covenants restricting the
payment of dividends or other distributions on the Company's capital stock. In
addition, the Company's bank debt agreement will contain covenants restricting
the payment of dividends and will require that the Company meet certain
financial tests including minimum net worth, minimum interests coverage and
maximum capital expenditures.
With certain exceptions, the Indenture will limit the payment
of dividends and other distributions on, and the purchase of, capital stock
(other than dividends or distributions in capital stock of the Company) to 50%
of Consolidated Net Income (or minus 100% in the event of a deficit) plus the
aggegate net procees from sales of capital stock; provided that no such payment
or distribution may be made unless the Company could incur at least $1.00 of
indebtedness under a covenant which limits the Company's and certain
subsidiaries' ability to incur indebtedness (generally based on a pro forma
fixed charge coverage ratio test). For purposes of this test, Consolidated Net
Income is defined generally as cumulative consolidated net income of the Company
and of such subsidiaries of the Company as are not designated "Unrestricted
Subsidiaries" by the Board of Directors of the Company.
Page 3
<PAGE>
Item 2. Exhibits.
The following exhibits are filed as part of this Registration Statement
on Form 8-A:
1. Amended and Restated Certificate of Incorporation of the
Company
2. Amended and Restated Bylaws of the Company
3. Senior Note Indenture, dated June 29, 1999, between the
Company and IBJ Whitehall Bank and Trust Company, as trustee.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this amended registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
THE PENN TRAFFIC COMPANY
By /s/ Martin A. Fox
----------------------------
Date: June 29, 1999 Martin A. Fox
Vice Chairman, Financial
Page 4
<PAGE>
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Exhibit Page
- ------ ------- ----
1 Amended and Restated Certificate of
Incorporation of the Company
2 Amended and Restated Bylaws of the Company
3 Senior Note Indenture, dated June 29, 1999,
between the Company and IBJ Whitehall Bank and
Trust Company, as trustee
Page 5
Exhibit 1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
THE PENN TRAFFIC COMPANY
This Amended and Restated Certificate of Incorporation amends and restates the
Certificate of Incorporation of the Corporation originally filed April 22, 1992,
as amended, pursuant to Section 245 of the General Corporation Law of Delaware.
1. Name. The name of the corporation is The Penn Traffic Company (the
"Corporation").
2. Address; Registered Office and Agent. The address of the Corporation's
registered office is 1209 Orange Street, City of Wilmington 19801, County of New
Castle; and its registered agent at such address is Corporation Trust Company.
3. Purpose. The purpose of the Corporation is to engage in, carry on and conduct
any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law (as amended from time to time, the "DGCL").
4. Number of Shares. The total number of shares of stock that the Corporation
shall have authority to issue is One Million (1,000,000) shares of Preferred
Stock of $.01 par value per share (the "Preferred Stock") and Thirty Million
(30,000,000) shares of Common Stock of $.01 par value per share (the "Common
Stock"). Each share of Common Stock, $1.25 par value, per share, issued and
outstanding or held in treasury immediately prior to the effectiveness of this
Amended and Restated Certificate is automatically and without any further action
by the Corporation or the holders thereof converted to 0.01 shares of Common
Stock upon the filing of this Amended and Restated Certificate.
To the extent required by section 1123(a)(6) of the U.S. Bankruptcy Code (11
U.S.C. ss. 1123(a)(6)), no nonvoting equity securities of the Corporation shall
be issued. This provision shall have no further force and effect beyond that
required by section 1123(a)(6) and is applicable only for so long as such
section is in effect and applicable to the Corporation.
5. Preferred Stock. The Board of Directors is expressly authorized, by
resolution or resolutions, to provide for the issue of all or any shares of the
Preferred Stock, in one or more series, and to fix for each such series such
voting powers, full or limited or no voting powers, and such designations,
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereon, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a "Preferred Stock Designation") and as
may be permitted by the DGCL. The number of authorized shares of Preferred Stock
may be increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of a majority of the holders of the voting
power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors (the "Voting
Stock") voting together as a single class, without a separate vote of the
holders of the Preferred Stock, or any series thereof, unless a vote of any such
holders is required pursuant to any Preferred Stock Designation.
6. Common Stock. Except as otherwise provided by law or as otherwise provided
in any Preferred Stock Designation, the holders of the Common Stock shall
exclusively possess all voting power and each share of Common Stock shall have
one vote.
7. Provisions Relating to Limitation on Stockholder Rights Plan. Notwithstanding
any other powers set forth in this Amended and Restated Certificate of
Incorporation, the Board of Directors shall not adopt a stockholders "rights
plan" (which for this purpose shall mean any arrangement pursuant to which,
directly or indirectly, Common Stock purchase rights may be distributed to
stockholders that provide all stockholders, other than persons who meet certain
criteria specified in the arrangement, the right to purchase the Common Stock at
less than the prevailing market price of the Common Stock), unless (i) such
rights plan is adopted by the affirmative vote of no less than eighty percent
(80%) of the members of the Board of Directors voting on such Rights Plan at a
properly called regular or special meeting; and (ii) by its terms, such rights
plan (and the rights issuable pursuant thereto) expires within one hundred
twenty (120) days from the date of its adoption by the Board of Directors,
unless extended by the affirmative vote of a majority of the votes cast
<PAGE>
of the capital stock of the Corporation then outstanding and entitled to vote at
an election of directors and present in person or represented by proxy at the
next meeting (annual or special) of stockholders, in which case such rights plan
(and the rights issuable pursuant thereto) may be extended for a period of no
more than ninety (90) days from the expiration of the one hundred twenty (120)
day period; prior to the expiration of the first ninety (90) day extension
period or any subsequent ninety (90) day extension period, such rights plan (and
the rights issuable pursuant thereto) may be extended for an additional period
of ninety (90) days upon the affirmative vote of a majority of the votes cast of
the capital stock of the Corporation then outstanding and entitled to vote at an
election of directors and present in person or represented by proxy at the next
meeting (annual or special) of stockholders.
8. Section 203. Pursuant to section 203(b)(1) of the DGCL, the Corporation
hereby expressly opts not to be governed by section 203 of the DGCL.
9. Indemnification.
9.1 To the extent not prohibited by law, the Corporation shall indemnify any
person who is or was made, or threatened to be made, a party to any threatened,
pending or completed action, suit or proceeding (a "Proceeding"), whether civil,
criminal, administrative or investigative, including, without limitation, an
action by or in the right of the Corporation to procure a judgment in its favor,
by reason of the fact that such person, or a person of whom such person is the
legal representative, is or was a director or officer of the Corporation, or is
or was serving as a director, officer, manager, member, employee or agent or in
any other capacity at the request of the Corporation, for any other corporation,
company, partnership, joint venture, trust, employee benefit plan or other
enterprise (an "Other Entity") while serving as a director or officer of the
Corporation, against judgments, fines, penalties, excise taxes, amounts paid in
settlement and costs, charges and expenses (including attorneys' fees and
disbursements) actually and reasonably incurred by such person in connection
with such Proceeding, if such person acted in good faith and in a manner such
person believed to be in or not opposed to the best interests of the Corporation
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful. To the extent specified by the Board
of Directors of the Corporation at any time and to the extent not prohibited by
law, the Corporation may indemnify any person who is or was made, or threatened
to be made, a party to any threatened, pending or completed Proceeding, whether
civil, criminal, administrative or investigative, including, without limitation,
an action by or in the right of the Corporation to procure a judgment in its
favor, by reason of the fact that such person is or was an employee or agent of
the Corporation, or is or was serving as a director, officer, manager, member,
employee or agent or in any other capacity at the request of the Corporation,
for any Other Entity, against judgment, fines, penalties, excise taxes, amounts
paid in settlement and costs, charges and expenses (including attorneys' fees
and disbursements) actually and reasonably incurred by such person in connection
with such Proceeding, if such person acted in good faith and in a manner such
person believed to be in or not opposed to the best interests of the Corporation
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful.
<PAGE>
9.2 The Corporation shall, from time to time, reimburse or advance to any
director or officer or other person entitled to indemnification hereunder the
funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any Proceeding, in advance of the
final disposition of such Proceeding; provided, however, that, if required by
the DGCL, such expenses incurred by or on behalf of any director or officer or
other person may be paid in advance of the final disposition of a Proceeding
only upon receipt by the Corporation of an undertaking, by or on behalf of such
director or officer (or other person indemnified hereunder), to repay any such
amount so advanced if it shall ultimately be determined by final judicial
decision from which there is no further right of appeal that such director,
officer or other person is not entitled to be indemnified for such expenses.
9.3 The rights to indemnification and reimbursement or advancement of expenses
provided by, or granted pursuant to, this Section 9 shall not be deemed
exclusive of any other rights to which a person seeking indemnification or
reimbursement or advancement of expenses may have or hereafter be entitled under
any statute, this Amended and Restated Certificate of Incorporation, the Amended
and Restated By-laws of the Corporation (the "By-laws"), any agreement
(including any policy of insurance purchased or provided by the Corporation
under which directors, officers, employees and other agents of the Corporation
are covered), any vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
9.4 The rights to indemnification and reimbursement or advancement of expenses
provided by, or granted pursuant to, this Section 9 shall continue as to a
person who has ceased to be a director or officer (or other person indemnified
hereunder) and shall inure to the benefit of the executors, administrators,
legatees and distributees of such person.
9.5 The Corporation shall have the power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, member, manager, employee or agent of an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether or
not the Corporation would have the power to indemnify such person against such
liability under the provisions of this Section 9, the By-laws or under section
145 of the DGCL or any other provision of law.
9.6 The provisions of this Section 9 shall be a contract between the
Corporation, on the one hand, and each director and officer who serves in such
capacity at any time while this Section 9 is in effect and any other person
indemnified hereunder, on the other hand, pursuant to which the Corporation and
each such director, officer, or other person intend to be legally bound. No
repeal or modification of this Section 9 shall affect any rights or obligations
with respect to any state of facts then or theretofore existing or thereafter
arising or any proceeding theretofore or thereafter brought or threatened based
in whole or in part upon any such state of facts.
<PAGE>
9.7 The rights to indemnification and reimbursement or advancement of expenses
provided by, or granted pursuant to, this Section 9 shall be enforceable by any
person entitled to such indemnification or reimbursement or advancement of
expenses in any court of competent jurisdiction. Neither the failure of the
Corporation (including its Board of Directors, its independent legal counsel and
its stockholders) to have made a determination prior to the commencement of such
action that such indemnification or reimbursement or advancement of expenses is
proper in the circumstances nor an actual determination by the Corporation
(including its Board of Directors, its independent legal counsel and its
stockholders) that such person is not entitled to such indemnification or
reimbursement or advancement of expenses shall constitute a defense to the
action or create a presumption that such person is not so entitled. Such a
person shall also be indemnified for any expenses incurred in connection with
successfully establishing his or her right to such indemnification or
reimbursement or advancement of expenses, in whole or in part, in any such
proceeding.
9.8 Any director or officer of the Corporation serving in any capacity in (i)
another corporation of which a majority of the shares entitled to vote in the
election of its directors is held, directly or indirectly, by the Corporation or
(ii) any employee benefit plan of the Corporation or any corporation referred to
in clause (i) shall be deemed to be doing so at the request of the Corporation.
9.9 Any person entitled to be indemnified or to reimbursement or advancement of
expenses as a matter of right pursuant to this Section 9 may elect to have the
right to indemnification or reimbursement or advancement of expenses interpreted
on the basis of the applicable law in effect at the time of the occurrence of
the event or events giving rise to the applicable Proceeding, to the extent
permitted by law, or on the basis of the applicable law in effect at the time
such indemnification or reimbursement or advancement of expenses is sought. Such
election shall be made, by a notice in writing to the Corporation, at the time
indemnification or reimbursement or advancement of expenses is sought; provided,
however, that if no such notice is given, the right to indemnification or
reimbursement or advancement of expenses shall be determined by the law in
effect at the time indemnification or reimbursement or advancement of expenses
is sought.
10. Compromise, Arrangement or Reorganization. Whenever a compromise or
arrangement is proposed between this Corporation and its creditors or any class
of them and/or between this Corporation and its stockholders, any court of
equitable jurisdiction within the State of Delaware may, on the application in a
summary way of this Corporation or of any creditor or stockholder thereof or on
the application of any receiver or receivers appointed for this Corporation
under the provisions of section 291 of the DGCL or on the application of
trustees in dissolution or of any receiver or receivers appointed for this
Corporation under the provisions of section 279 of the DGCL, order a meeting of
the creditors or class of creditors, and/or of the stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders of this Corporation,
as the case may be, agrees to any compromise or arrangement and to any
reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class of creditors, and/or on all
stockholders of this Corporation, as the case may be, and also on this
Corporation.
11. Limitation of Liability. No director of the Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, including breaches resulting from such director's
grossly negligent behavior, except for liability (a) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (b) for acts
or omissions not in good faith
<PAGE>
or which involve intentional misconduct or a knowing violation of law, (c) under
section 174 of the DGCL or (d) for any transaction from which the director
derived any improper personal benefits. If the DGCL is hereafter amended to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the
Corporation shall not adversely affect any right or protection of a director of
the Corporation existing at the time of such repeal or modification.
12. By-Laws. The power to make, alter or repeal the By-laws, and to adopt any
new By-law, shall be vested solely in the stockholders. The power to make, alter
or repeal the By-laws, and to adopt any new By-law, shall not be vested in the
Board of Directors.
13. Stockholder Meetings. Any action required or permitted to be taken by the
stockholders of the Corporation may be effected at a duly called annual or
special meeting of such holders and may also be effected by any consent in
writing of such holders in lieu of a meeting. At any annual meeting or special
meeting of stockholders of the Corporation, only such business shall be
conducted as shall have been brought before such meeting in the manner provided
by the By-laws of the Corporation.
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation, which restates and amends the Corporation's
Certificate of Incorporation, after having been duly adopted, recommended and
approved by the Board of Directors and adopted by the affirmative vote of a
majority of the outstanding shares of Common Stock in accordance with Sections
242 and 245 of the DGCL, to be signed by its duly authorized officer this
_____day of _________, 1999.
----------------------------------------
Name:
Title:
Exhibit 2
AMENDED AND RESTATED BY-LAWS
of
THE PENN TRAFFIC COMPANY
(A Delaware Corporation)
ARTICLE 1
DEFINITIONS
As used in these By-laws, unless the context otherwise requires, the term:
1.1 "Assistant Secretary" means an Assistant Secretary of the Corporation.
1.2 "Assistant Treasurer" means an Assistant Treasurer of the Corporation.
1.3 "Audit Committee" means the Audit Committee of the Board.
1.4 "Board" means the Board of Directors of the Corporation.
1.5 "Business Day" means any day which is not a Saturday, a Sunday or a day on
which banks are authorized to close in the City of New York.
1.6 "By-laws" means the amended and restated by-laws of the Corporation, as
amended from time to time.
1.7 "Certificate of Incorporation" means the amended and restated certificate
of incorporation of the Corporation, as amended, supplemented or restated
from time to time.
1.8 "Chairman of the Board" means the Chairman of the Board of Directors of
the Corporation.
1.9 "Chairman of the Executive Committee" means the Chairman of the Executive
Committee of the Board of Directors of the Corporation.
1.10 "Chief Financial Officer" means the Chief Financial Officer of the
Corporation.
1.11 "Compensation and Stock Option Committee" means the Compensation and Stock
Option Committee of the Board.
1.12 "Corporation" means The Penn Traffic Company.
1.13 "Directors" means directors of the Corporation.
1.14 "Entire Board" means all directors of the Corporation in office, whether
or not present at a meeting of the Board, but disregarding vacancies.
1.15 "Executive Committee" means the Executive Committee of the Board.
1.16 "General Corporation Law" means the General Corporation Law of the State
of Delaware, as amended from time to time.
1.17 "Office of the Corporation" means the executive office of the Corporation,
anything in Section 131 of the General Corporation Law to the contrary
notwithstanding.
1.18 "President" means the President of the Corporation.
1.19 "Secretary" means the Secretary of the Corporation.
1.20 "Stockholders" means stockholders of the Corporation.
1.21 "Treasurer" means the Treasurer of the Corporation.
1.22 "Vice Chairman of the Board" means the Vice Chairman of the Board of
Directors of the Corporation.
1.23 "Vice Chairman of the Executive Committee" means the Vice Chairman of the
Executive Committee of the Board of Directors of the Corporation.
1.24 "Vice President" means a Vice President of the Corporation.
ARTICLE 2
STOCKHOLDERS
2.1 Place of Meetings. Every meeting of Stockholders shall be held at the office
of the Corporation or at such other place within or without the State of
Delaware as shall be specified or fixed in the notice of such meeting or in the
waiver of notice thereof.
2.2 Annual Meeting. A meeting of Stockholders shall be held annually for the
election of Directors and the transaction of other business at such hour and on
such business day in each year as may be determined by resolution adopted by
affirmative vote of a majority vote of the Entire Board and designated in the
notice of meeting, provided, however, that each successive annual meeting shall
be held on a date within thirteen months after the date of the preceding annual
meeting.
<PAGE>
2.3 Deferred Meeting for Election of Directors, Etc. If the annual meeting of
Stockholders for the election of Directors and the transaction of other business
is not held on the date designated therefor or at any adjournment of a meeting
convened on such date, the Board by resolution adopted by affirmative vote of a
majority vote of the Entire Board, shall call a meeting of Stockholders for the
election of Directors and the transaction of other business as soon thereafter
as convenient.
2.4 Special Meetings. A special meeting of Stockholders, unless otherwise
prescribed by statute, may be called at any time by the Board, the Chairman of
the Board or by the President, and shall be called by the President or Secretary
at the request, in writing, of any two or more Directors then serving or of the
Stockholders owning a majority of the shares of capital stock of the Corporation
issued and outstanding and entitled to vote. Any such request shall state the
purpose of the proposed meeting. At any special meeting of Stockholders, no
business may be transacted other than (i) such business stated in the notice
thereof given pursuant to Section 2.6 hereof or in any waiver of notice thereof
given pursuant to Section 2.7 hereof (in a form prepared by the Secretary) or
(ii) such business as is related to the purpose or purposes of such meeting and
which is properly brought before the meeting by or at the direction of the
Board.
2.5 Fixing Record Date. For the purpose of (a) determining the Stockholders
entitled (i) to notice of or to vote at any meeting of Stockholders or any
adjournment thereof or (ii) to receive payment of any dividend or other
distribution or allotment of any rights, or to exercise any rights in respect of
any change, conversion or exchange of stock; or (b) any other lawful action, the
Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date was adopted by the Board and which
record date shall not be (x) in the case of clause (a)(i) above, more than sixty
nor less than ten days before the date of such meeting and (y) in the case of
clause (a)(ii) or (b) above, more than sixty days prior to such action. If no
such record date is fixed:
2.5.1 the record date for determining Stockholders entitled to notice of or to
vote at a meeting of Stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held; and
2.5.2 the record date for determining Stockholders for any purpose other than
those specified in Section 2.5.1 shall be at the close of business on the day on
which the Board adopts the resolution relating thereto.
When a determination of Stockholders entitled to notice of or to vote at
any meeting of Stockholders has been made as provided in this Section 2.5, such
determination shall apply to any adjournment thereof unless the Board fixes a
new record date for the adjourned meeting.
<PAGE>
2.6 Notice of Meetings of Stockholders. Except as otherwise provided in Section
2.7 hereof, whenever under the provisions of any statute, the Certificate of
Incorporation or these By-laws, Stockholders are required or permitted to take
any action at a meeting, written notice shall be given stating the place, date
and hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called. Unless otherwise provided by any
statute, the Certificate of Incorporation or these By-laws, a copy of the notice
of any meeting shall be given, personally or by mail, not less than ten nor more
than sixty days before the date of the meeting, to each Stockholder entitled to
notice of or to vote at such meeting. If mailed, such notice shall be deemed to
be given when deposited in the United States mail, with postage prepaid,
directed to the Stockholder at his or her address as it appears on the records
of the Corporation. An affidavit of the Secretary or an Assistant Secretary or
of the transfer agent of the Corporation that the notice required by this
Section 2.6 has been given shall, in the absence of fraud, be prima facie
evidence of the facts stated therein. When a meeting is adjourned to another
time or place, notice need not be given of the adjourned meeting if the time and
place thereof are announced at the meeting at which the adjournment is taken,
and at the adjourned meeting any business may be transacted that might have been
transacted at the meeting as originally called. If, however, the adjournment is
for more than thirty days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting shall be
given to each Stockholder of record entitled to vote at the meeting.
2.7 Waivers of Notice. Whenever the giving of any notice is required by statute,
the Certificate of Incorporation or these By-laws, a waiver thereof, in writing,
signed by the Stockholder or Stockholders entitled to said notice, whether
before or after the event as to which such notice is required, shall be deemed
equivalent to notice. Attendance by a Stockholder at a meeting shall constitute
a waiver of notice of such meeting except when the Stockholder attends a meeting
for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business on the ground that the meeting has not been lawfully
called or convened.
2.8 List of Stockholders. The Secretary shall prepare and make, or cause to be
prepared and made, at least ten days before every meeting of Stockholders, a
complete list of the Stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each Stockholder and the number
of shares registered in the name of each Stockholder. Such list shall be open to
the examination of any Stockholder, the Stockholder's agent or attorney, at the
Stockholder's expense, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall also be produced and kept at the
time and place of the meeting during the whole time thereof, and may be
inspected by any Stockholder who is present. The Corporation shall maintain the
list of Stockholders in written form or in another form capable of conversion
into written form within a reasonable time. The stock ledger shall be the only
evidence as to who are the Stockholders entitled to examine the stock ledger,
the list of Stockholders or the books of the Corporation, or to vote in person
or by proxy at any meeting of Stockholders.
2.9 Quorum of Stockholders; Adjournment. Except as otherwise provided by any
statute, the Certificate of Incorporation or these By-laws, the holders of a
majority of all outstanding shares of stock entitled to vote at any meeting of
Stockholders, present in person or represented by proxy, shall constitute a
quorum for the transaction of any business at such meeting. When a quorum is
once present to organize a meeting of Stockholders, it is not broken by the
subsequent withdrawal of any Stockholders. The holders of a majority of the
shares of stock present in person or represented by proxy at any meeting of
Stockholders, including an adjourned meeting, whether or not a quorum is
present, may adjourn such meeting to another time and place. Shares of its own
stock belonging to the Corporation or to another corporation, if a majority of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation to vote stock,
including but not limited to its own stock, held by it in a fiduciary capacity.
<PAGE>
2.10 Voting; Proxies. Unless otherwise provided in the Certificate of
Incorporation, every Stockholder of record shall be entitled at every meeting of
Stockholders to one vote for each share of capital stock standing in his or her
name on the record of Stockholders determined in accordance with Section 2.5
hereof. If the Certificate of Incorporation provides for more or less than one
vote for any share on any matter, each reference in the By-laws or the General
Corporation Law to a majority or other proportion of stock shall refer to such
majority or other proportion of the votes of such stock. The provisions of
Sections 212 and 217 of the General Corporation Law shall apply in determining
whether any shares of capital stock may be voted and the persons, if any,
entitled to vote such shares; but the Corporation shall be protected in assuming
that the persons in whose names shares of capital stock stand on the stock
ledger of the Corporation are entitled to vote such shares. Holders of
redeemable shares of stock are not entitled to vote after the notice of
redemption is mailed to such holders and a sum sufficient to redeem the stocks
has been deposited with a bank, trust company, or other financial institution
under an irrevocable obligation to pay the holders the redemption price on
surrender of the shares of stock. At any meeting of Stockholders (at which a
quorum was present to organize the meeting), all matters which may be properly
considered at such meeting, except as otherwise provided by statute or by the
Certificate of Incorporation or by these By-laws, shall be decided by a majority
of the votes cast at such meeting by the holders of shares present in person or
represented by proxy and entitled to vote thereon, whether or not a quorum is
present when the vote is taken. Directors may be elected either by written
ballot or by voice vote. In voting on any other question on which a vote by
ballot is required by law or is demanded by any Stockholder entitled to vote,
the voting shall be by ballot. Each ballot shall be signed by the Stockholder
voting or the Stockholder's proxy and shall state the number of shares voted. On
all other questions, the voting may be by voice vote. Each Stockholder entitled
to vote at a meeting of Stockholders may authorize another person or persons to
act for such Stockholder by proxy. The validity and enforceability of any proxy
shall be determined in accordance with Section 212 of the General Corporation
Law. A Stockholder may revoke any proxy that is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the
proxy or by delivering a proxy in accordance with applicable law bearing a later
date to the Secretary.
2.11 Voting Procedures and Inspectors of Election at Meetings of Stockholders.
The Board, in advance of any meeting of Stockholders, shall appoint one or more
inspectors to act at the meeting and make a written report thereof. The Board
may designate one or more persons as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate is able to act at a
meeting, the person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath faithfully to
execute the duties of inspector with strict impartiality and according to the
best of his or her ability. The inspectors shall (a) ascertain the number of
shares outstanding and the voting power of each, (b) determine the shares
represented at the meeting and the validity of proxies and ballots, (c) count
all votes and ballots, (d) determine and retain for a reasonable period a record
of the disposition of any challenges made to any determination by the
inspectors, and (e) certify their determination of the number of shares
represented at the meeting and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of their duties. The date and time of the opening
and the closing of the polls for each matter upon which the Stockholders will
vote at a meeting shall be determined by the person presiding at the meeting and
shall be announced at the meeting. No ballot, proxies or votes, or any
revocation thereof or change thereto, shall be accepted by the inspectors after
the closing of the polls unless the Court of Chancery of the State of Delaware
upon application by a Stockholder shall determine otherwise.
<PAGE>
2.12 Conduct of Meetings. (a) At each meeting of Stockholders, the Chairman of
the Board, or if there is no Chairman of the Board or if there be one and the
Chairman of the Board is absent, the Vice Chairman of the Board, or if there is
no Vice Chairman of the Board or if there be one and the Vice Chairman of the
Board is absent, the Chairman of the Executive Committee, or if there is no
Chairman of the Executive Committee or if there be one and the Chairman of the
Executive Committee is absent, the Vice Chairman of the Executive Committee, or
if there is no Vice Chairman of the Executive Committee or if there be one and
the Vice Chairman of the Executive Committee is absent, the President, or if
there is no President or if there be one and the President is absent, a Vice
President, and in case more than one Vice President shall be present, that Vice
President designated by the Board (or in the absence of any such designation,
the most senior Vice President, based on time served in such office, present),
shall act as chairman of the meeting. The Secretary, or in his or her absence
one of the Assistant Secretaries, shall act as secretary of the meeting. In case
none of the officers above designated to act as chairman or secretary of the
meeting, respectively, shall be present, a chairman or a secretary of the
meeting, as the case may be, shall be chosen by a majority of the votes cast at
such meeting by the holders of shares of capital stock present in person or
represented by proxy and entitled to vote at the meeting.
(b) Only persons who are nominated in accordance with the following procedures
shall be eligible for election as Directors. Nominations of persons for election
to the Board may be made (i) by or at the direction of the Board, (ii) by any
nominating committee or person appointed by the Board or (iii) by any
Stockholder of the Corporation entitled to vote for the election of Directors at
the meeting who complies with the provisions of the following paragraph (persons
nominated in accordance with (iii) above are referred to herein as "Stockholder
nominees").
In addition to any other applicable requirements, all nominations of
Stockholder nominees must be made by written notice given by or on behalf of a
Stockholder of record of the Corporation (the "Notice of Nomination"). The
Notice of Nomination must be delivered personally to, or mailed to, and received
at the principal executive offices of the Corporation, addressed to the
attention of the Secretary. To be timely, Notice of Nomination must have been
received by the Secretary of the Corporation (a) in the case of an annual
meeting, not less than 60 nor more than 90 days in advance of the first
anniversary of the previous year's annual meeting; provided, however, that in
the event that the date of the annual meeting is changed by more than 30 days
from such anniversary date, the Notice of Nomination to be timely must have been
received by the Secretary of the Corporation no later than the close of business
on the 10th day following the day on which public announcement of the date of
such meeting is first made; and (b) in the case of a special meeting at which
directors are to be elected, not later than the close of business on the fifth
day following such public announcement. Each such notice shall set forth: (i)
the name and address, as they appear on the Corporation's books, of the
Stockholder who intends to make the nomination and the name(s) and address(es)
of the person or persons to be nominated; (ii) a representation that the
Stockholder is a holder of record of shares of the Corporation and the number
and class so held and will be entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting and nominate the person or persons
specified in the notice; (iii) the class and number of shares of the Corporation
that are beneficially owned by the Stockholder; (iv) a description of all
arrangements or understandings between the Stockholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the Stockholder; (v) such other
information regarding each nominee proposed by such Stockholder as would be
required to be included in a definitive proxy statement filed pursuant to the
proxy rules of the Securities and
<PAGE>
Exchange Commission had the nominee been nominated, or intended to be nominated,
by the Board of Directors; and (vi) the consent of each nominee to serve as a
director of the Corporation, if so elected. In addition, the Stockholder making
such nomination shall promptly provide any other information reasonably
requested by the Corporation. Notwithstanding anything in these By-laws to the
contrary, no person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 2.12(b). Notwithstanding the foregoing provisions of this By-law, a
Stockholder shall also comply with all applicable requirements of the Exchange
Act (as hereinafter defined) and the rules and regulations thereunder with
respect to the matters set forth in this By-law. Nothing in this By-law shall be
deemed to affect any rights of the holders of any series of Preferred Stock to
elect directors under specified circumstances. Except as otherwise required by
law, the chairman of any meeting of Stockholders shall have the power and duty
(i) to determine whether a nomination was made in accordance with the
requirements set forth in this By-law and (ii) if any proposed nomination was
not made in compliance with this By-law, to declare that such defective
nomination shall be disregarded.
(c) At any meeting of Stockholders, only such business shall be conducted as
shall have been properly brought before the meeting. To be properly brought
before a meeting of Stockholders, (i) business must be specified in the notice
of meeting (or any supplement thereto) given by or at the direction of the
Board, (ii) otherwise properly brought before the meeting by or at the direction
of the Board or (iii) otherwise properly brought before the meeting by a
Stockholder in accordance with the terms of the following paragraph (business
brought before the meeting in accordance with (iii) above is referred to as
"Stockholder business").
In addition to any other applicable requirements, all proposals of
Stockholder business must be made by written notice given by or on behalf of a
Stockholder of record of the Corporation (the "Notice of Business"). To be
timely, a Stockholder's notice must have been received by the Secretary of the
Corporation not less than 60 nor more than 90 days in advance of the first
anniversary of the previous year's annual meeting; provided, however, that in
the event that the date of the annual meeting is changed by more than 30 days
from such anniversary date, notice by the stockholder to be timely must have
been received no later than the close of business on the 10th day following the
day on which public announcement of the date of such meeting is first made. Such
Notice of Business shall set forth (i) the name and record address of the
Stockholder proposing such Stockholder business; (ii) a representation that the
Stockholder is a holder of record of shares of the Corporation and the number
and class so held and will be entitled to vote at such meeting and intends to
appear in person or by proxy at the meeting; (iii) the class and number of
shares of the Corporation that are beneficially owned by the Stockholder; (iv) a
brief description of the Stockholder business desired to be brought before the
annual meeting and the reasons for conducting such Stockholder business at the
annual meeting, and; (v) any material interest of the Stockholder in such
Stockholder business. Notwithstanding anything in these By-laws to the contrary,
no business shall be conducted at the annual meeting of Stockholders except in
accordance with the procedures set forth in this Section 2.12(c), provided,
however, that nothing in this Section 2.12(c) shall be deemed to preclude
discussion by any Stockholder of any business properly brought before the annual
meeting in accordance with said procedure. In addition, the Stockholder making
such proposal shall promptly provide any other information reasonably requested
by the Corporation. Only such business shall be conducted at any annual meeting
of Stockholders as shall have been brought before such meeting in accordance
with the requirements set forth in this By-law. Notwithstanding the foregoing
provisions of this By-law, a Stockholder shall also comply with all applicable
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations thereunder with respect to the matters set
forth in this By-law. Nothing in this By-law shall be deemed to affect any
rights of any Stockholder to request inclusion of a proposal in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
Except as otherwise required by law, the chairman of any annual meeting of
Stockholders shall have power and duty (i) to determine whether any business
proposed to be brought before the meeting was brought in accordance with the
requirements set forth in this By-law and (ii) if any proposed business was not
brought in compliance with this By-law to declare that such defective proposal
shall be disregarded. For purposes of this By-law and the next preceding By-law,
"public announcement" shall mean disclosure in a press release reported by the
Dow Jones News Service, the Associated Press or any comparable national news
service or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
2.13 Order of Business. The order of business at all meetings of Stockholders
shall be as determined by the chairman of the meeting, but the order of business
to be followed at any meeting at which a quorum is present may
<PAGE>
be changed by a majority of the votes cast at such meeting by the holders of
shares of capital stock present in person or represented by proxy and entitled
to vote at the meeting.
2.14 Action by Stockholders. Any action required or permitted by the General
Corporation Law to be taken at any annual or special meeting of Stockholders of
the Corporation may be taken without a meeting if Stockholders holding a
majority of the voting shares consent thereto in writing, and the writing or
writings are filed with the minutes of meetings of Stockholders.
ARTICLE 3
DIRECTORS
3.1 General Powers. Except as otherwise provided in the Certificate of
Incorporation or these By-laws, the business and affairs of the Corporation
shall be managed by or under the direction of the Board. The Board may adopt
such rules and regulations, not inconsistent with the Certificate of
Incorporation or these By-laws or applicable laws, as it may deem proper for the
conduct of its meetings and the management of the Corporation. In addition to
the powers expressly conferred by these By-laws, the Board may exercise all
powers and perform all acts that are not required, by these By-laws or the
Certificate of Incorporation or by statute, to be exercised and performed by the
Stockholders.
3.2 Number; Qualification; Term of Office. The Board shall consist of not less
than 2 or more than 10 members. Until another number is fixed by Board or
stockholders in accordance with the next following sentence, the Board shall
consist of 10 members. The exact number of Directors within the minimum and
maximum limitations specified in the preceding sentence shall be fixed from time
to time by resolution adopted at any meeting of the stockholders or by a
majority of the entire Board then in office, whether on not present at a
meeting. The term of office of each director shall expire at the first annual
meeting of Stockholders of the Corporation next following the director's
election. The Board shall elect a Chairman of the Board who will serve as a
non-executive Chairman of the Board.
3.3 Election. Directors shall, except as otherwise required by statute or by the
Certificate of Incorporation, be elected by a plurality of the votes cast at a
meeting of Stockholders by the holders of shares present in person or
represented by proxy at the meeting and entitled to vote in the election.
3.4 Newly Created Directorships and Vacancies. Unless otherwise provided in the
Certificate of Incorporation, newly created Directorships resulting from any
increase in the authorized number of Directors and vacancies occurring in the
Board for any other reason, may be filled by a resolution adopted at any meeting
of the stockholders or by the affirmative votes of a majority of the entire
Board, although less than a quorum, or by a sole remaining Director, and
Directors so chosen shall hold office for a term expiring at the next following
annual meeting of Stockholders, or, in each case until their respective
successors are duly elected and qualified, or until the respective Directors'
earlier death, resignation or removal.
3.5 Resignation. Any Director may resign at any time by written notice to the
Corporation. Such resignation shall take effect at the time therein specified,
and, unless otherwise specified in such resignation, the acceptance of such
resignation shall not be necessary to make it effective.
3.6 Removal. Any one or more or all of the Directors may be removed, at any
time, with or without cause by the Stockholders having at least a majority in
voting power of the then issued and outstanding shares of capital stock of the
Corporation.
3.7 Compensation. Each Director, in consideration of his or her service as such,
shall be entitled to receive from the Corporation such amount per annum or such
fees for attendance at Directors' meetings, or both, as the Board may from time
to time determine, together with reimbursement for the reasonable out-of-pocket
expenses, if any incurred by such Director in connection with the performance of
his or her duties. Each Director who shall serve as a member of any committee of
Directors in consideration of serving as such shall be entitled to such
additional amount per annum or such fees for attendance at committee meetings,
or both, as the Board may from time to time determine, together with
reimbursement for the reasonable out-of-pocket expenses, if any, incurred by
<PAGE>
such Director in the performance of his or her duties. Nothing contained in this
Section 3.7 shall preclude any Director from serving the Corporation or its
subsidiaries in any other capacity and receiving proper compensation therefor.
3.8 Times and Places of Meetings. The Board may hold meetings, both regular and
special, either within or without the State of Delaware. The times and places
for holding meetings of the Board may be fixed from time to time by resolution
of the Board or (unless contrary to a resolution of the Board) in the notice of
the meeting.
3.9 Annual Meetings. On the day when and at the place where the annual meeting
of Stockholders for the election of Directors is held, and as soon as
practicable thereafter, the Board may hold its annual meeting, without notice of
such meeting, for the purposes of organization, the election of officers and the
transaction of other business. The annual meeting of the Board may be held at
any other time and place specified in a notice given as provided in Section 3.11
hereof for special meetings of the Board or in a waiver of notice thereof.
3.10 Regular Meetings. Regular meetings of the Board may be held without notice
at such times and at such places as shall from time to time be determined by the
Board.
3.11 Special Meetings. Special meetings of the Board may be called by the
Chairman of the Board, the Vice Chairman of the Board, the Chairman of the
Executive Committee, the Vice Chairman of the Executive Committee, the President
or the Secretary or by any two or more Directors then serving on at least one
day's notice to each Director given by one of the means specified in Section
3.14 hereof other than by mail, or on at least three business days' notice if
given by mail. Special meetings shall be called by the Chairman of the Board,
President or Secretary in like manner and on like notice on the written request
of any two or more of the Directors then serving.
3.12 Telephone Meetings. Directors or members of any committee designated by the
Board may participate in a meeting of the Board or of such committee by means of
conference telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and participation in a
meeting pursuant to this Section 3.12 shall constitute presence in person at
such meeting.
3.13 Adjourned Meetings. A majority of the Directors present at any meeting of
the Board, including an adjourned meeting, whether or not a quorum is present,
may adjourn such meeting to another time and place. At least one day's notice of
any adjourned meeting of the Board shall be given to each Director whether or
not present at the time of the adjournment, if such notice shall be given by one
of the means specified in Section 3.14 hereof other than by mail, or at least
three days' notice if by mail. Any business may be transacted at an adjourned
meeting that might have been transacted at the meeting as originally called.
3.14 Notice Procedure. Subject to Sections 3.11 and 3.15 hereof, whenever, under
the provisions of any statute, the Certificate of Incorporation or these
By-laws, notice is required to be given to any Director, such notice shall be
deemed given effectively if given in person or by telephone, by mail addressed
to such Director at such Director's address as it appears on the records of the
Corporation, with postage thereon prepaid, or by telegram, telex, telecopy or
similar means addressed as aforesaid.
3.15 Waiver of Notice. Whenever the giving of any notice is required by statute,
the Certificate of Incorporation or these By-laws, a waiver thereof, in writing,
signed by the person or persons entitled to said notice, whether before or after
the event as to which such notice is required, shall be deemed equivalent to
notice. Attendance by a person at a meeting shall constitute a waiver of notice
of such meeting except when the person attends a meeting for the express purpose
of objecting, at the beginning of the meeting, to the transaction of any
business on the ground that the meeting has not been lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Directors or a committee of Directors need be
specified in any written waiver of notice unless so required by statute, the
Certificate of Incorporation or these By-laws.
3.16 Organization. At each meeting of the Board, the Chairman of the Board, or
in the absence of the Chairman of the Board, the Chairman of the Executive
Committee, or in the absence of the Chairman of the Board the President, or in
the absence of the President a chairman chosen by a majority of the Directors
present, shall preside.
<PAGE>
The Secretary shall act as secretary at each meeting of the Board. In case the
Secretary shall be absent from any meeting of the Board, an Assistant Secretary
shall perform the duties of secretary at such meeting; and in the absence from
any such meeting of the Secretary and all Assistant Secretaries, the person
presiding at the meeting may appoint any person to act as secretary of the
meeting.
3.17 Quorum of Directors. The presence in person of a majority of the entire
Board shall be necessary and sufficient to constitute a quorum for the
transaction of business at any meeting of the Board, but a majority of a smaller
number may adjourn any such meeting to a later date.
3.18 Action by Majority Vote. Except as otherwise expressly required by statute,
the Certificate of Incorporation or these By-laws, the act of a majority of the
Directors present at a meeting at which a quorum is present shall be the act of
the Board.
3.19 Action Without Meeting. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken without a meeting
if all Directors or members of such committee, as the case may be, consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board or committee.
3.20 The power to make, alter or repeal these By-laws, and to adopt any new
By-law, shall be vested solely in the stockholders. The power to make, alter or
repeal these By-laws, and to adopt any new By-law, shall not be vested in the
Board of Directors.
ARTICLE 4
COMMITTEES OF THE BOARD
4.1 Committees. The Board may, by resolution passed by a vote of the entire
Board, designate one or more committees of the Board, each committee to consist
of one or more of the Directors of the Corporation and shall designate the
following committees of the Board, each committee to consist of one or more of
the Directors of the Corporation:
(a) Executive Committee. An Executive Committee of the Board to
manage the business of the Company and such Executive Committee shall have all
of the authority customarily delegated to the senior executive officers of a
corporation, subject to oversight of the entire Board. The positions of Chairman
of the Executive Committee and Vice-Chairman of the Executive Committee will be
senior executive officer positions of the Corporation. The Corporation's Chief
Executive Officer will report to the Chairman of the Executive Committee on all
matters under the authority of the Executive Committee. During the term of the
Management Agreement dated as of the date hereof, among the Corporation, Hirsch
& Fox, L.L.C., Gary D. Hirsch and Martin A. Fox, as from time to time
supplemented, amended or modified, the members of the Executive Committee shall
consist of Gary D. Hirsch (Chairman of the Executive Committee), Martin A. Fox
(Vice Chairman of the Executive Committee) and the President of the Corporation.
(b) Audit Committee. An Audit committee to be composed solely of
independent Directors responsible for reviewing the Company's financial
statements and the selection of the Corporation's independent auditors.
(c) Compensation and Stock Option Committee. A Compensation and
Stock Option Committee to be composed solely of independent Directors that will
approve all officer compensation arrangements and grants of stock options under
the Company's equity incentive program, taking into account, in each case, the
recommendations of the Executive Committee.
4.2 Alternate Committee Members. The Board may designate one or more Directors
as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. If a member of a committee
shall be absent from any meeting, or disqualified from voting thereat, the
remaining member or
<PAGE>
members present and not disqualified from voting, whether or not such member or
members constitute a quorum, may, by a unanimous vote, appoint another member of
the Board to act at the meeting in the place of any such absent or disqualified
member. Any such committee, to the extent provided in the resolution of the
Board passed as aforesaid, shall have and may exercise all the powers and
authority of the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be impressed on
all papers that may require it, but no such committee shall have the power or
authority of the Board in reference to amending the Certificate of
Incorporation, adopting an agreement of merger or consolidation under section
251 or section 252 of the General Corporation Law, recommending to the
Stockholders (a) the sale, lease or exchange of all or substantially all of the
Corporation's property and assets, or (b) a dissolution of the Corporation or a
revocation of a dissolution, or amending the By-laws of the Corporation; and,
unless the resolution designating it expressly so provides, no such committee
shall have the power and authority to declare a dividend, to authorize the
issuance of stock or to adopt a certificate of ownership and merger pursuant to
Section 253 of the General Corporation Law. Unless otherwise specified in the
resolution of the Board designating a committee, at all meetings of such
committee a majority of the total number of members of the committee shall
constitute a quorum for the transaction of business, and the vote of a majority
of the members of the committee present at any meeting at which there is a
quorum shall be the act of the committee. Each committee shall keep regular
minutes of its meetings. Unless the Board otherwise provides, each committee
designated by the Board may make, alter and repeal rules for the conduct of its
business. In the absence of such rules each committee shall conduct its business
in the same manner as the Board conducts its business pursuant to Article 3 of
these By-laws.
4.3 Committee Minutes. The committees shall keep regular minutes of their
proceedings and report the same to the Board.
ARTICLE 5
OFFICERS
5.1 Positions. The officers of the Corporation shall be a President, a
Secretary, a Treasurer or a Chief Financial Officer and such other officers as
the Board may appoint, including a Chairman of the Board, Vice Chairman of the
Board, a Chairman of the Executive Committee, a Vice Chairman of the Executive
Committee, one or more Vice Presidents and one or more Assistant Secretaries and
Assistant Treasurers, who shall exercise such powers and perform such duties as
shall be determined from time to time by the Board. The Board may designate one
or more Vice Presidents as Executive Vice Presidents and may use descriptive
words or phrases to designate the standing, seniority or areas of special
competence of the Vice Presidents elected or appointed by it. Any number of
offices may be held by the same person unless the Certificate of Incorporation
or these By-laws otherwise provide.
5.2 Appointment. The officers of the Corporation shall be chosen by the Board at
its annual meeting or at such other time or times as the Board shall determine.
5.3 Compensation. The compensation of all officers of the Corporation shall be
fixed by the Board. No officer shall be prevented from receiving a salary or
other compensation by reason of the fact that the officer is also a Director.
5.4 Term of Office. Each officer of the Corporation shall hold office for the
term for which he or she is elected and until such officer's successor is chosen
and qualifies or until such officer's earlier death, resignation or removal. Any
officer may resign at any time upon written notice to the Corporation. Such
resignation shall take effect at the date of receipt of such notice or at such
later time as is therein specified, and, unless otherwise specified, the
acceptance of such resignation shall not be necessary to make it effective. The
resignation of an officer shall be without prejudice to the contract rights of
the Corporation, if any. Any officer elected or appointed by the Board may be
removed at any time, with or without cause, by vote of a majority of the entire
Board. Any vacancy occurring in any office of the Corporation shall be filled by
the Board. The removal of an officer without cause shall be without prejudice to
the officer's contract rights, if any. The election or appointment of an officer
shall not of itself create contract rights.
5.5 Fidelity Bonds. The Corporation may secure the fidelity of any or all of its
officers or agents by bond or otherwise.
<PAGE>
5.6 Chairman of the Board. The Chairman of the Board, if one shall have been
appointed, shall preside at all meetings of the Board and shall exercise such
powers and perform such other duties as shall be determined from time to time by
the Board. The Chairman of the Board shall not be an executive officer of the
Corporation.
5.7 Vice Chairman of the Board. The Vice Chairman of the Board, if one shall
have been appointed, shall, in the absence of the Chairman of the Board, preside
at all meetings of the Board and shall exercise such powers and perform such
other duties as shall be determined from time to time by the Board.
5.8 Chairman of the Executive Committee. The Chairman of the Executive Committee
shall be the most senior executive officer of the Corporation and shall,
together with the other members of the Executive Committee, have general
supervision over the business of the Corporation, subject to the oversight of
the Board only. The Chairman of the Executive Committee shall preside at all
meetings of the Executive Committee. The Chairman of the Executive Committee may
sign and execute in the name of the Corporation deeds, mortgages, bonds,
contracts, and other instruments except in cases in which the signing and
execution thereof shall be expressly delegated by the Board or these By-laws to
some other officer or agent of the Corporation or shall be required by statute
or otherwise to be signed or executed and, in general, the Chairman of the
Executive Committee shall perform all duties that are customarily delegated to
senior executive officers of a corporation and such other duties as may from
time to time be assigned to the Chairman of the Executive Committee by the Board
that are consistent with his position.
5.9 Vice Chairman of the Executive Committee. The Vice Chairman of the Executive
Committee shall be a member of the Executive Committee and shall, together with
the other members of the Executive Committee have general supervision over the
business of the Corporation, subject to the oversight of the Chairman of the
Executive Committee and the Board. The Vice Chairman of the Executive Committee
shall preside at all meetings of the Executive Committee at all meetings of the
Executive Committee at which the Chairman of the Executive Committee (if there
is one) is not present. The Vice Chairman of the Executive Committee may sign
and execute in the name of the Corporation deeds, mortgages, bonds, contracts
and other instruments except in cases in which the signing and execution thereof
shall be expressly delegated by the Board, the Executive Committee or these
By-laws to some other officer or agent of the Corporation or shall be required
by statute or otherwise to be signed or executed and, in general, the Vice
Chairman of the Executive Committee shall perform all duties that are
customarily delegated to senior executive officers of a corporation and such
other duties as may from time to time be assigned to the Vice Chairman of the
Executive Committee Chairman by the Executive Committee that are consistent with
his position.
5.10 President. The President shall be the Chief Executive Officer of the
Corporation and shall have general supervision over the business of the
Corporation, subject, however, to the control of the Board and the Executive
Committee. The President may sign and execute in the name of the Corporation
deeds, mortgages, bonds, contracts and other instruments except in cases in
which the signing and execution thereof shall be expressly delegated by the
Board or by these By-laws to some other officer or agent of the Corporation or
shall be required by statute otherwise to be signed or executed and, in general,
the President shall perform all duties incident to the office of President of a
corporation and such other duties as may from time to time be assigned to the
President by the Board and the Executive Committee.
5.11 Vice Presidents. At the request of the President, or, in the President's
absence, at the request of the Board, the Vice Presidents shall (in such order
as may be designated by the Board or, in the absence of any such designation, in
order of seniority based on age) perform all of the duties of the President and,
in so performing, shall have all the powers of, and be subject to all
restrictions upon, the President. Any Vice President may sign and execute in the
name of the Corporation deeds, mortgages, bonds, contracts or other instruments,
except in cases in which the signing and execution thereof shall be expressly
delegated by the Board or by these By-laws to some other officer or agent of the
Corporation, or shall be required by, statute otherwise to be signed or
executed, and each Vice President shall perform such other duties as from time
to time may be assigned to such Vice President by the Board or by the President.
<PAGE>
5.12 Secretary. The Secretary shall attend all meetings of the Board and of the
Stockholders and shall record all the proceedings of the meetings of the Board
and of the Stockholders in a book to be kept for that purpose, and shall perform
like duties for committees of the Board, when required. The Secretary shall
give, or cause to be given, notice of all special meetings of the Board and of
the Stockholders and shall perform such other duties as may be prescribed by the
Board or by the President, under whose supervision the Secretary shall be. The
Secretary shall have custody of the corporate seal of the Corporation, and the
Secretary, or an Assistant Secretary, shall have authority to impress the same
on any instrument requiring it, and when so impressed the seal may be attested
by the signature of the Secretary or by the signature of such Assistant
Secretary. The Board may give general authority to any other officer to impress
the seal of the Corporation and to attest the same by such officer's signature.
The Secretary or an Assistant Secretary may also attest all instruments signed
by the President or any Vice President. The Secretary shall have charge of all
the books, records and papers of the Corporation relating to its organization
and management, shall see that the reports, statements and other documents
required by statute are properly kept and filed and, in general, shall perform
all duties incident to the office of Secretary of a corporation and such other
duties as may from time to time be assigned to the Secretary by the Board or by
the President.
5.13 Treasurer or Chief Financial Officer. The Treasurer or Chief Financial
Officer shall have charge and custody of, and be responsible for, all funds,
securities and notes of the Corporation; receive and give receipts for moneys
due and payable to the Corporation from any sources whatsoever; deposit all such
moneys and valuable effects in the name and to the credit of the Corporation in
such depositories as may be designated by the Board; against proper vouchers,
cause such funds to be disbursed by checks or drafts on the authorized
depositories of the Corporation signed in such manner as shall be determined by
the Board and be responsible for the accuracy of the amounts of all moneys so
disbursed; regularly enter or cause to be entered in books or other records
maintained for the purpose full and adequate account of all moneys received or
paid for the account of the Corporation; have the right to require from time to
time reports or statements giving such information as the Treasurer or Chief
Financial Officer may desire with respect to any and all financial transactions
of the Corporation from the officers or agents transacting the same; render to
the President or the Board, whenever the President or the Board shall require
the Treasurer or Chief Financial Officer so to do, an account of the financial
condition of the Corporation and of all financial transactions of the
Corporation; exhibit at all reasonable times the records and books of account to
any of the Directors upon application at the office of the Corporation where
such records and books are kept; disburse the funds of the Corporation as
ordered by the Board; and, in general, perform all duties incident to the office
of Treasurer or Chief Financial Officer of a corporation and such other duties
as may from time to time be assigned to the Treasurer or Chief Financial Officer
by the Board or the President.
5.14 Assistant Secretaries and Assistant Treasurers. Assistant Secretaries and
Assistant Treasurers shall perform such duties as shall be assigned to them by
the Secretary or by the Treasurer or Chief Financial Officer, respectively, or
by the Board or by the President.
ARTICLE 6
CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.
6.1 Execution of Contracts. The Board, except as otherwise provided in these
By-laws, may prospectively or retroactively authorize any officer or officers,
employee or employees or agent or agents, in the name and on behalf of the
Corporation, to enter into any contract or execute and deliver any instrument,
and any such authority may be general or confined to specific instances, or
otherwise limited.
6.2 Loans. The Board may prospectively or retroactively authorize the President
or any other officer, employee or agent of the Corporation to effect loans and
advances at any time for the Corporation from any bank, trust company or other
institution, or from any firm, corporation or individual, and for such loans and
advances the person so authorized may make, execute and deliver promissory
notes, bonds or other certificates or evidences of indebtedness of the
Corporation, and, when authorized by the Board so to do, may pledge and
hypothecate or transfer any securities or other property of the Corporation as
security for any such loans or advances. Such authority conferred by the Board
may be general or confined to specific instances, or otherwise limited.
<PAGE>
6.3 Checks, Drafts, Etc. All checks, drafts and other orders for the payment of
money out of the funds of the Corporation and all evidences of indebtedness of
the Corporation shall be signed on behalf of the Corporation in such manner as
shall from time to time be determined by resolution of the Board.
6.4 Deposits. The funds of the Corporation not otherwise employed shall be
deposited from time to time to the order of the Corporation with such banks,
trust companies, investment banking firms, financial institutions or other
depositories as the Board may select or as may be selected by an officer,
employee or agent of the Corporation to whom such power to select may from time
to time be delegated by the Board.
ARTICLE 7
STOCK AND DIVIDENDS
7.1 Certificates Representing Shares. The shares of capital stock of the
Corporation shall be represented by certificates in such form (consistent with
the provisions of Section 158 of the General Corporation Law) as shall be
approved by the Board. Such certificates shall be signed by the Chairman of the
Board, the President or a Vice President and by the Secretary or an Assistant
Secretary or the Treasurer or Chief Financial Officer or an Assistant Treasurer,
and may be impressed with the seal of the Corporation or a facsimile thereof.
The signatures of the officers upon a certificate may be facsimiles, if the
certificate is countersigned by a transfer agent or registrar other than the
Corporation itself or its employee. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon any
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such certificate may, unless otherwise
ordered by the Board, be issued by the Corporation with the same effect as if
such person were such officer, transfer agent or registrar at the date of issue.
7.2 Transfer of Shares. Transfers of shares of capital stock of the Corporation
shall be made only on the books of the Corporation by the holder thereof or by
the holder's duly authorized attorney appointed by a power of attorney duly
executed and filed with the Secretary or a transfer agent of the Corporation,
and on surrender of the certificate or certificates representing such shares of
capital stock properly endorsed for transfer and upon payment of all necessary
transfer taxes. Every certificate exchanged, returned or surrendered to the
Corporation shall be marked "Cancelled," with the date of cancellation, by the
Secretary or an Assistant Secretary or the transfer agent of the Corporation. A
person in whose name shares of capital stock shall stand on the books of the
Corporation shall be deemed the owner thereof to receive dividends, to vote as
such owner and for all other purposes as respects the Corporation. No transfer
of shares of capital stock shall be valid as against the Corporation, its
Stockholders and creditors for any purpose, except to render the transferee
liable for the debts of the Corporation to the extent provided by law, until
such transfer shall have been entered on the books of the Corporation by an
entry showing from and to whom transferred.
7.3 Transfer and Registry Agents. The Corporation may from time to time maintain
one or more transfer offices or agents and registry offices or agents at such
place or places as may be determined from time to time by the Board.
7.4 Lost, Destroyed Stolen and Mutilated Certificates. The holder of any shares
of capital stock of the Corporation shall immediately notify the Corporation of
any loss, destruction, theft or mutilation of the certificate representing such
shares, and the Corporation may issue a new certificate to replace the
certificate alleged to have been lost, destroyed, stolen or mutilated. The Board
may, in its discretion, as a condition to the issue of any such new certificate,
require the owner of the lost, destroyed, stolen or mutilated certificate, or
his or her legal representatives, to make proof satisfactory to the Board of
such loss, destruction, theft or mutilation and to advertise such fact in such
manner as the Board may require, and to give the Corporation and its transfer
agents and registrars, or such of them as the Board may require, a bond in such
form, in such sums and with such surety or sureties as the Board may direct, to
indemnify the Corporation and its transfer agents and registrars against any
claim that may be made against any of them on account of the continued existence
of any such certificate so alleged to have been lost, destroyed, stolen or
mutilated and against any expense in connection with such claim.
7.5 Rules and Regulations. The Board may make such rules and regulations as it
may deem expedient, not
<PAGE>
inconsistent with these By-laws or with the Certificate of Incorporation,
concerning the issue, transfer and registration of certificates representing
shares of its capital stock.
7.6 Restriction on Transfer of Stock. A written restriction on the transfer or
registration of transfer of capital stock of the Corporation, if permitted by
Section 202 of the General Corporation Law and noted conspicuously on the
certificate representing such capital stock, may be enforced against the holder
of the restricted capital stock or any successor or transferee of the holder,
including an executor, administrator, trustee, guardian or other fiduciary
entrusted with like responsibility for the person or estate of the holder.
Unless noted conspicuously on the certificate representing such capital stock, a
restriction, even though permitted by Section 202 of the General Corporation
Law, shall be ineffective except against a person with actual knowledge of the
restriction. A restriction on the transfer or registration of transfer of
capital stock of the Corporation may be imposed either by the Certificate of
Incorporation or by an agreement among any number of Stockholders or among such
Stockholders and the Corporation. No restriction so imposed shall be binding
with respect to capital stock issued prior to the adoption of the restriction
unless the holders of such capital stock are parties to an agreement or voted in
favor of the restriction.
7.7 Dividends, Surplus, Etc. Subject to the provisions of the Certificate of
Incorporation and of law, the Board:
7.7.1 may declare and pay dividends or make other distributions on the
outstanding shares of capital stock in such amounts and at such time or times as
it, in its discretion, shall deem advisable giving due consideration to the
condition of the affairs of the Corporation;
7.7.2 may use and apply, in its discretion, any of the surplus of the
Corporation in purchasing or acquiring any shares of capital stock of the
Corporation, or purchase warrants therefor, in accordance with law, or any of
its bonds, debentures, notes, scrip or other securities or evidences of
indebtedness; and
7.7.3 may set aside from time to time out of such surplus or net profits such
sum or sums as, in its discretion, it may think proper, as a reserve fund to
meet contingencies, or for equalizing dividends or for the purpose of
maintaining or increasing the property or business of the Corporation, or for
any purpose it may think conducive to the best interests of the Corporation.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnity Undertaking. To the extent not prohibited by law, the Corporation
shall indemnify any person who is or was made, or threatened to be made, a party
to any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or a
person of whom such person is the legal representative, is or was a Director or
officer of the Corporation, or is or was serving as a director, officer,
employee or agent or in any other capacity at the request of the Corporation for
any other corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise (an "Other Entity") while serving as a Director or officer
of the Corporation, against judgments, fines, penalties, excise taxes, amounts
paid in settlement and costs, charges and expenses (including attorneys' fees
and disbursements) actually and reasonably incurred by such person in connection
with such Proceeding if such person acted in good faith and in a manner such
person believed to be in or not opposed to the best interests of the Corporation
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his or her conduct was unlawful. To the extent specified by the Board
at any time and to the extent not prohibited by law, the Corporation may
indemnify any person who is or was made, or threatened to be made, a party to
any threatened, pending or completed Proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, an action by or
in the right of the Corporation to procure a judgment in its favor, by reason of
the fact that such person is or was an employee or agent of the Corporation, or
is or was serving as a director, officer, employee or agent or in any other
capacity at the request of the Corporation for any Other Entity, against
judgments, fines, penalties, excise taxes, amounts paid in settlement and costs,
charges and expenses (including attorneys' fees and disbursements) actually and
reasonably incurred by such person in connection with such Proceeding if such
person acted in good faith and in a manner such person believed to be in or not
opposed to the best interests of the
<PAGE>
Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
8.2 Advancement of Expenses. The Corporation shall, from time to time, reimburse
or advance to any Director or officer or other person entitled to
indemnification hereunder the funds necessary for payment of expenses, including
attorneys' fees and disbursements, incurred in connection with any Proceeding,
in advance of the final disposition of such Proceeding; provided, however, that,
if required by the General Corporation Law, such expenses incurred by or on
behalf of any Director or officer or other person may be paid in advance of the
final disposition of a Proceeding only upon receipt by the Corporation of an
undertaking, by or on behalf of such Director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such Director, officer or other person is not
entitled to be indemnified for such expenses.
8.3 Rights Not Exclusive. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article 8
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, the Certificate of Incorporation, these
By-laws, any agreement (including any policy of insurance purchased or provided
by the Corporation under which directors, officers, employees and other agents
of the Corporation are covered), any vote of Stockholders or disinterested
Directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office.
8.4 Continuation of Benefits. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article 8
shall continue as to a person who has ceased to be a Director or officer (or
other person indemnified hereunder) and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
8.5 Insurance. The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of an Other Entity, against any
liability asserted against such person and incurred by such person in any such
capacity, or arising out of such person's status as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of this Article 8, the Certificate of Incorporation or
under section 145 of the General Corporation Law or any other provision of law.
8.6 Binding Effect. The provisions of this Article 8 shall be a contract between
the Corporation, on the one hand, and each Director and officer who serves in
such capacity at any time while this Article 8 is in effect and any other person
entitled to indemnification hereunder, on the other hand, pursuant to which the
Corporation and each such Director, officer or other person intend to be, and
shall be legally bound. No repeal or modification of this Article 8 shall affect
any rights or obligations with respect to any state of facts then or theretofore
existing or thereafter arising or any proceeding theretofore or thereafter
brought or threatened based in whole or in part upon any such state of facts.
8.7 Procedural Rights. The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Article 8
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent jurisdiction.
Neither the failure of the Corporation (including its Board, its independent
legal counsel and its Stockholders) to have made a determination prior to the
commencement of such action that such indemnification or reimbursement or
advancement of expenses is proper in the circumstances nor an actual
determination by the Corporation (including its Board, its independent legal
counsel and its Stockholders) that such person is not entitled to such
indemnification or reimbursement or advancement of expenses shall constitute a
defense to the action or create a presumption that such person is not so
entitled. Such a person shall also be indemnified for any expenses incurred in
connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
<PAGE>
8.8 Service Deemed at Corporation's Request. Any Director or officer of the
Corporation serving in any capacity in (a) another corporation of which a
majority of the shares entitled to vote in the election of its directors is
held, directly or indirectly, by the Corporation or (b) any employee benefit
plan of the Corporation or any corporation referred to in clause (a) shall be
deemed to be doing so at the request of the Corporation.
8.9 Election of Applicable Law. Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to this
Article 8 may elect to have the right to indemnification or reimbursement or
advancement of expenses interpreted on the basis of the applicable law in effect
at the time of the occurrence of the event or events giving rise to the
applicable Proceeding, to the extent permitted by law, or on the basis of the
applicable law in effect at the time such indemnification or reimbursement or
advancement of expenses is sought. Such election shall be made, by a notice in
writing to the Corporation, at the time indemnification or reimbursement or
advancement of expenses is sought; provided, however, that if no such notice is
given, the right to indemnification or reimbursement or advancement of expenses
shall be determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.
ARTICLE 9
BOOKS AND RECORDS
9.1 Books and Records. There shall be kept at the principal office of the
Corporation correct and complete records and books of account recording the
financial transactions of the Corporation and minutes of the proceedings of the
Stockholders, the Board and any committee of the Board. The Corporation shall
keep at its principal office, or at the office of the transfer agent or
registrar of the Corporation, a record containing the names and addresses of all
Stockholders, the number and class of shares held by each and the dates when
they respectively became the owners of record thereof.
9.2 Form of Records. Any records maintained by the Corporation in the regular
course of its business, including its stock ledger, books of account, and minute
books, may be kept on, or be in the form of, punch cards, magnetic tape,
photographs, microphotographs, or any other information storage device, provided
that the records so kept can be converted into clearly legible written form
within a reasonable time. The Corporation shall so convert any records so kept
upon the request of any person entitled to inspect the same.
9.3 Inspection of Books and Records. Except as otherwise provided by law, the
Board shall determine from time to time whether, and, if allowed, when and under
what conditions and regulations, the accounts, books, minutes and other records
of the Corporation, or any of them, shall be open to the Stockholders for
inspection.
ARTICLE 10
SEAL
The corporate seal shall have inscribed thereon the name of the Corporation, the
year of its organization and the words "Corporate Seal, Delaware." The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or
otherwise reproduced.
ARTICLE 11
FISCAL YEAR
The fiscal year of the Corporation shall end on the Saturday closest to January
31 of each year, and may be changed by resolution of the Board.
ARTICLE 12
PROXIES AND CONSENTS
<PAGE>
Unless otherwise directed by the Board, the Chairman of the Board, the
President, any Vice President, the Secretary or the Treasurer or Chief Financial
Officer, or any one of them, may execute and deliver on behalf of the
Corporation proxies respecting any and all shares or other ownership interests
of any Other Entity owned by the Corporation. Any such officer may appoint such
person or persons as the officer shall deem proper to (a) represent and vote the
shares or other ownership interests so owned by the Corporation at any and all
meetings of holders of shares or other ownership interests of such Other Entity,
whether general or special, and (b) execute and deliver consents respecting such
shares or other ownership interests. Any such officer may also attend any
meeting of the holders of shares or other ownership interests of such Other
Entity and thereat vote or exercise any or all other powers of the Corporation
as the holder of such shares or other ownership interests.
ARTICLE 13
EMERGENCY BY-LAWS
Unless the Certificate of Incorporation provides otherwise, the following
provisions of this Article 13 shall be effective during an emergency, which is
defined as when a quorum of the Corporation's Directors cannot be readily
assembled because of some catastrophic event. During such emergency:
13.1 Notice to Board Members. Any one member of the Board or any one of the
following officers: Chairman of the Board, President, any Vice President,
Secretary, or Treasurer or Chief Financial Officer, may call a meeting of the
Board. Notice of such meeting need be given only to those Directors whom it is
practicable to reach, and may be given in any practical manner, including by
publication and radio. Such notice shall be given at least six hours prior to
commencement of the meeting.
13.2 Temporary Directors and Quorum. One or more officers of the Corporation
present at the emergency Board meeting, as is necessary to achieve a quorum,
shall be considered to be Directors for the meeting, and shall so serve in order
of rank, and within the same rank, in order of seniority. In the event that less
than a quorum of the Directors are present (including any officers who are to
serve as Directors for the meeting), those Directors present (including the
officers serving as Directors) shall constitute a quorum.
13.3 Actions Permitted To Be Taken. The Board as constituted in Section 13.2,
and after notice as set forth in Section 13.1 may:
13.3.1 prescribe emergency powers to any officer of the Corporation;
13.3.2 delegate to any officer or Director, any of the powers of the Board;
13.3.3 designate lines of succession of officers and agents, in the event that
any of them are unable to discharge their duties;
13.3.4 relocate the principal place of business, or designate successive or
simultaneous principal places of business; and
13.3.5 take any other convenient, helpful or necessary action to carry on the
business of the Corporation.
ARTICLE 14
AMENDMENTS
Any By-laws may be adopted, amended or repealed by a vote of the Stockholders
having at least a majority in voting power of the then issued and outstanding
shares of capital stock of the Corporation.
Amended and Restated as of _________ __, 1999.
Exhibit 3
================================================================================
THE PENN TRAFFIC COMPANY
SENIOR DEBT SECURITIES
INDENTURE
Dated as of June 29, 1999
IBJ WHITEHALL BANK & TRUST COMPANY
Trustee
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION .................................
Section 1.01. Definitions.
Section 1.02. Other Definitions.
Section 1.03. Incorporation by Reference of Trust Indenture
Act.
Section 1.04. Rules of Construction.
ARTICLE 2 FORM OF THE SECURITIES ........................................
Section 2.01. Form.
Section 2.02. Form of Legend for Global Securities.
Section 2.03. Form of Trustee's Certificate of
Authentication.
ARTICLE 3 THE SECURITIES .................................................
Section 3.01. Amount Unlimited; Issuable in Series.
Section 3.02. Denominations.
Section 3.03. Execution, Authentication, Delivery and Dating.
Section 3.04. Registrar and Paying Agent.
Section 3.05. Paying Agent to Hold Money in Trust.
Section 3.06. Holder Lists.
Section 3.07. Transfer and Exchange.
Section 3.08. Replacement Securities.
Section 3.09. Temporary Securities.
Section 3.10. Cancellation.
Section 3.11. Defaulted Interest.
2
<PAGE>
Section 3.12. Persons Deemed Owners.
Section 3.13. Computation of Interest.
ARTICLE 4 COVENANTS.......................................................
Section 4.01. Payment of Securities.
Section 4.02. Limitation on Restricted Payments.
Section 4.03. Limitation on Indebtedness.
Section 4.04. Limitation on Liens.
Section 4.05. Limitation on Sale and Leaseback Transactions.
Section 4.06. Limitation on Asset Sales.
Section 4.07. Limitation on Investments.
Section 4.08. SEC Reports.
Section 4.09. Limitation on Payment Restrictions
Section 4.10. Limitation on Issuance of Indebtedness and
Preferred Stock by Subsidiaries.
Section 4.11. Transactions with Affiliates.
Section 4.12. Restrictions on Becoming an Investment
Section 4.13. Continued Existence and Rights.
Section 4.14. Maintenance of Properties and Other Matters.
Section 4.15. Taxes and Claims.
Section 4.16. Usury Laws.
Section 4.17. Money for Security Payments to be Held in
Trust.
3
<PAGE>
Section 4.18. Compliance Certificate.
ARTICLE 5 SUCCESSORS; CHANGE OF CONTROL; OPTIONAL PREPAYMENT..............
Section 5.01. When Company May Merge, etc.; Change of
Control; Holders' Right of Optional Prepayment.
ARTICLE 6 DEFAULTS AND REMEDIES...........................................
Section 6.01. Events of Default.
Section 6.02. Acceleration.
Section 6.03. Other Remedies.
Section 6.04. Waiver of Defaults.
Section 6.05. Control by Majority.
Section 6.06. Limitation on Suits.
Section 6.07. Rights of Holders to Receive Payment.
Section 6.08. Collection Suit by Trustee.
Section 6.09. Trustee May File Proofs of Claim.
Section 6.10. Priorities.
Section 6.11. Undertaking for Costs.
ARTICLE 7 TRUSTEE.........................................................
Section 7.01. Duties of Trustee.
Section 7.02. Rights of Trustee.
Section 7.03. Individual Rights of Trustee.
Section 7.04. Trustee's Disclaimer.
Section 7.05. Notice of Defaults.
4
<PAGE>
Section 7.06. Reports by Trustee to Holders.
Section 7.07. Compensation and Indemnity.
Section 7.08. Replacement of Trustee.
Section 7.09. Successor Trustee by Merger, etc.
Section 7.10. Eligibility; Disqualification.
Section 7.11. Preferential Collection of Claims Against
Company.
Section 7.12. Authenticating Agent.
ARTICLE 8 DISCHARGE OF INDENTURE..........................................
Section 8.01. Termination of Company's Obligations.
Section 8.02. Application of Trust Money.
Section 8.03. Repayment to Company.
Section 8.04. Reinstatement.
ARTICLE 9 AMENDMENTS......................................................
Section 9.01. Without Consent of Holders.
Section 9.02. With Consent of Holders.
Section 9.03. Compliance with Trust Indenture Act.
Section 9.04. Revocation and Effect of Consents.
Section 9.05. Notation on or Exchange of Securities.
Section 9.06. Trustee Protected.
ARTICLE 10 REDEMPTIONS....................................................
Section 10.01. Election to Redeem; Notice to Trustee.
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Section 10.02. Selection of the Securities to be Redeemed.
Section 10.03. Notice of Redemption.
Section 10.04. Effect of Notice of Redemption.
Section 10.05. Deposit of Redemption Price on Optional
Redemption.
Section 10.06. Securities Redeemed in Part.
ARTICLE 11 MISCELLANEOUS..................................................
Section 11.01. Trust Indenture Act Controls.
Section 11.02. Notices.
Section 11.03. Communication by Holders with Other Holders.
Section 11.04. Certificate and Opinion as to Conditions
Precedent.
Section 11.05. Statements Required in Certificate or Opinion.
Section 11.06. Rules by Trustee and Agents.
Section 11.07. Legal Holidays.
Section 11.08. No Recourse Against Others.
Section 11.09. Duplicate Originals.
Section 11.10. Governing Law.
Section 11.11. No Adverse Interpretation of Other Agreements.
Section 11.12. Successors.
Section 11.13. Severability.
Section 11.14. Table of Contents, Headings, etc.
Section 11.15. Benefits of Indenture.
6
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7
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CROSS REFERENCE TABLE 1/ 1_
Trust Indenture Reference
__Act Section__ __Section__
310(a)(l) 7.10
(a)(2) 7.10
(a)(3) N.A.
(a)(4) N.A.
(a)(5) 7.10
(b) 7.10
(c) N.A.
311(a) 7.11
(b) 7.11
(c) N.A.
312(a) 3.06
- -------------------------
1/ 1_ This Cross-Reference Table is not part of the Indenture. N.A.
means not applicable.
8
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(b) 11.03
(c) 11.03
313(a) 7.06
(b)(1) N.A.
(b)(2) 7.06
(c) 7.06, 11.02
(d) 7.06
314(a) 4.08, 4.18
(b) N.A.
(c)(1) 11.04
(c)(2) 11.04
(c)(3) 11.04
(d) N.A.
(e) 11.05
315(a) 7.01(b)
(b) 7.05, 11.02
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(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
316(a) N.A.
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(a)(2) N.A.
(b) 6.07
(c) 9.04(b)
317(a)(1) 6.08
(a)(2) 6.09
(b) 3.05
318(a) 11.01
10
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INDENTURE dated as of June 29, 1999 between THE PENN TRAFFIC COMPANY,
a Delaware corporation (the "Company"), and IBJ WHITEHALL BANK & TRUST COMPANY,
a New York banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
a. Definitions.
"Additional Assets" means any Property or assets substantially related
to the Company's primary business and, in the case of proceeds received by the
Company from the sale of the Capital Stock of an Unrestricted Subsidiary, shall
also mean Investments in another Unrestricted Subsidiary.
"Affiliate" means, with respect to any referenced Person, a Person (i)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such referenced Person, (ii)
which directly or indirectly through one or more intermediaries beneficially
owns or holds 5% or more of the combined voting power of the total Voting Stock
of such referenced Person or (iii) of which 5% or more of the combined voting
power of the total Voting Stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) directly or indirectly through
one or more intermediaries is beneficially owned or held by such referenced
Person, or a Subsidiary or an Unrestricted Subsidiary of such referenced Person.
When used herein without reference to
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any Person, Affiliate means an Affiliate of the Company.
"Agent" means any Registrar, Paying Agent or coRegistrar.
"Asset Sale" means the sale or other disposition, in a transaction
which is not a Sale and Leaseback Transaction, by the Company or one of its
Subsidiaries to any Person other than the Company or one of its Subsidiaries of
(i) any of the Capital Stock of any of the Subsidiaries or Unrestricted
Subsidiaries of the Company or (ii) any other assets of the Company or any other
assets of its Subsidiaries outside the ordinary course of business of the
Company or such Subsidiary.
"Average Life" means, as of the date of determination, with respect to
any debt security, the quotient obtained by dividing (i) the sum of the products
of the numbers of years from the date of determination to the dates of each
successive scheduled principal payment of such debt security multiplied by the
amount of such principal payment by (ii) the sum of all such principal payments.
"Board of Directors" means the board of directors of the Company or any
authorized committee of such Board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day which is not a Legal Holiday.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Capitalized Lease Obligation" means, as to any Person, the obligation
of such Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real or personal Property which obligation is
required to be classified and accounted for as a capital lease obligation on a
balance sheet of such Person under generally accepted accounting principles and,
for purposes of this Indenture, the amount of such obligation at any date shall
be the outstanding amount thereof at such date, determined in accordance with
generally accepted accounting principles.
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"Change of Control" means, with respect to the Company, an event or
series of events by which (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rules 13d3 and 13d5 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all shares that any such
person has the right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of 50% or more of
the outstanding shares of common stock of the Company or securities representing
50% or more of the combined voting power of the Company's Voting Stock, (ii) the
Company consolidates with or merges into another Person or conveys, transfers,
sells or leases all or substantially all of its assets to any Person, or any
Person consolidates with or merges into the Company, in either event pursuant to
a transaction in which the outstanding Voting Stock of the Company is changed
into or exchanged for cash, securities or other Property, other than any such
transaction between the Company and its Wholly Owned Subsidiaries (which Wholly
Owned Subsidiaries are United States corporations), with the effect that any
"person" becomes the "beneficial owner," directly or indirectly, of 50% or more
of the outstanding shares of common stock of the Company or securities
representing 50% or more of the combined voting power of the Company's Voting
Stock or (iii) during any consecutive twoyear period from and after the date of
this Indenture, individuals who at the beginning of such period constituted the
Company's Board of Directors (together with any new directors whose election by
the Company's Board of Directors, or whose nomination for election by the
Company's shareholders, was approved by a vote of at least a majority of the
directors then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the directors then in
office.
"Company" means the Person designated as the "Company" in the first
paragraph of this instrument until any successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean any such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its Chairman of the Executive Committee, its Vice
Chairman of the Executive Committee, its President or a Vice President, and by
its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
"Consolidated Interest Coverage Ratio" means, with respect to the
Company for any period, the ratio of (i) the aggregate amount of Consolidated
Operating Income of the Company for the four consecutive fiscal quarters for
which financial information in respect thereof is available immediately prior to
the Transaction Date to (ii) the aggregate amount of
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<PAGE>
Consolidated Interest Expense of the Company for the four consecutive fiscal
quarters for which financial information in respect thereof is available
immediately prior to the Transaction Date; provided that for purposes of
calculating the Consolidated Interest Coverage Ratio of the Company, (a)
Consolidated Operating Income shall be calculated on the basis of firstin,
firstout method of inventory valuation, as determined in accordance with
generally accepted accounting principles, (b) the Consolidated Operating Income
and Consolidated Interest Expense of the Company shall include the Consolidated
Operating Income and Consolidated Interest Expense of any Person to be acquired
by the Company or any of its Subsidiaries in connection with the transaction
giving rise to the need to calculate the Consolidated Interest Coverage Ratio,
on a pro forma basis for the four consecutive fiscal quarters for which
financial information in respect thereof is available immediately prior to the
Transaction Date, and shall also include the Consolidated Operating Income and
Consolidated Interest Expense of any other Person which has been acquired by the
Company or any of its Subsidiaries during such four consecutive fiscal quarters
on a pro forma basis for such four consecutive fiscal quarters, the Consolidated
Operating Income and Consolidated Interest Expense of any such Person or Persons
to be determined on the same basis as determining such items for the Company and
(c) Consolidated Interest Expense and Redeemable Dividends shall be calculated
as if (i) any Indebtedness incurred or issued since the beginning of the four
consecutive fiscal quarters for which financial information in respect thereof
is available immediately prior to the Transaction Date, or to be incurred or
issued at or prior to the time the transaction giving rise to the need to
calculate the Consolidated Interest Coverage Ratio is effected (the "Transaction
Time"), had been incurred or issued as of the beginning of such four quarter
period and (ii) any Indebtedness repaid since the beginning of such four quarter
period, or to be repaid with the proceeds of Indebtedness or equity incurred or
issued or to be incurred or issued at or prior to the Transaction Time, had been
repaid as of the beginning of such four quarter period. For purposes of
determining the Consolidated Interest Coverage Ratio of the Company for any
period, (i) any Indebtedness incurred or proposed to be incurred or Redeemable
Stock issued or proposed to be issued which for purposes of clause (c) above is
deemed to have been incurred or issued as of the beginning of the four quarter
period described in clause (c) which bears interest at a fluctuating rate will
be deemed to have borne interest during such four quarter period at the rate in
effect on the Transaction Date and (ii) "Subsidiary" shall mean any Subsidiary
of the Company other than any Subsidiary (and Subsidiaries of such Subsidiary)
of which the Company does not own or control, directly or indirectly, a
sufficient amount of Voting Stock in order to cause a merger of such Subsidiary
into the Company or another Subsidiary without the approval of any other holder
of Voting Stock of such Subsidiary.
"Consolidated Interest Expense" means, for any period, without
duplication (A) the sum of (i) the aggregate amount of interest recognized by
the Company and its
14
<PAGE>
Subsidiaries during such period in respect of Indebtedness of the Company
and its Subsidiaries (including, without limitation, all interest capitalized by
the Company or any of its Subsidiaries during such period and all commissions,
discounts and other fees and charges owed by the Company and its Subsidiaries
with respect to letters of credit and bankers' acceptance financing and the net
costs associated with Interest Swap Obligations of the Company and its
Subsidiaries), (ii) the aggregate amount of the interest component of rentals in
respect of Capitalized Lease Obligations recognized by the Company and its
Subsidiaries during such period, (iii) to the extent any Indebtedness of any
Person is Guaranteed by the Company or any of its Subsidiaries (other than
Guarantees relating to obligations of customers of the franchise or wholesale
business of the Company or any of its Subsidiaries which Guarantees are in the
ordinary course of business and consistent with past practices of the Company or
its Subsidiaries), the aggregate amount of interest paid or accrued by such
Person during such period attributable to any such Indebtedness, and (iv) the
aggregate amount of Redeemable Dividends accrued during such period with respect
to Redeemable Stock of the Company or any of its Subsidiaries, whether or not
declared during such period, less (B) amortization or writeoff of deferred
financing costs of the Company and its Subsidiaries during such period and, to
the extent included in (A) above, any charge related to any premium or penalty
paid in connection with redeeming or retiring any Indebtedness prior to its
stated maturity, in the case of both (A) and (B) above, after elimination of
intercompany accounts among the Company and its Subsidiaries and as determined
in accordance with generally accepted accounting principles.
"Consolidated Net Income" means, for any period, the aggregate net
income of the Company and its Subsidiaries for such period on a consolidated
basis, determined in accordance with generally accepted accounting principles,
provided that there shall be excluded therefrom after giving effect to any
related tax effect (i) gains and losses from Asset Sales or reserves relating
thereto (except gains on Asset Sales relating to an Unrestricted Subsidiary,
including the sale or other disposition of all or a portion of the Capital Stock
of an Unrestricted Subsidiary, to the extent of the amount of cash dividends or
other cash distributions in respect of its Capital Stock relating to the sale of
the Property or Capital Stock of such Unrestricted Subsidiary that are actually
paid to, and received by, the Company during such period out of funds legally
available therefor), (ii) items classified as extraordinary or nonrecurring,
(iii) the income (or loss) of any Unrestricted Subsidiary and any Joint Venture,
except to the extent of the amount of cash dividends or other distributions in
respect of its Capital Stock or interest in the Joint Venture actually paid to,
and received by, the Company or any of its Subsidiaries during such period by
such Unrestricted Subsidiary or Joint Venture out of funds legally available
therefor, (iv) except to the extent includable pursuant to clause (iii), the
income (or loss) of any Person accrued or attributable to any period prior to
the date
15
<PAGE>
it becomes a Subsidiary of the Company or is merged into or consolidated with
the Company or any of its Subsidiaries or that Person's assets (or a portion
thereof) are acquired by the Company or any of its Subsidiaries, (v) the
cumulative effect of changes in accounting principles in the year of adoption of
such change, and (vi) the effect of the amortization of excess reorganization
value.
"Consolidated Operating Income" means, with respect to the Company for
any period, the Consolidated Net Income of the Company and its Subsidiaries for
such period (A) increased by the sum of (i) Consolidated Interest Expense of the
Company for such period, (ii) income tax expense of the Company and its
Subsidiaries, on a consolidated basis, for such period (after giving effect to
any income tax expense adjustments made in arriving at Consolidated Net Income),
(iii) depreciation expense of the Company and its Subsidiaries, on a
consolidated basis, for such period, (iv) amortization expense of the Company
and its Subsidiaries, on a consolidated basis, for such period, (v) amortization
or writeoff of deferred financing costs of the Company and its Subsidiaries, on
a consolidated basis, for such period and (vi) other noncash items, but only to
the extent the items referred to in subclauses (i) through (vi) of this clause
(A) reduced such Consolidated Net Income, and (B) decreased by the sum of (i)
noncash items increasing such Consolidated Net Income and (ii) any revenues
received or accrued by the Company or any of its Subsidiaries from any Person
(other than the Company or any of its Subsidiaries) in respect of any Investment
for such period (other than revenue from any Qualified Investment), but only to
the extent the items referred to in subclauses (i) and (ii) of this clause (B)
increased such Consolidated Net Income, all as determined in accordance with
generally accepted accounting principles.
"Consolidated Revenue" means, with respect to the Company and its
Subsidiaries, for any period the total revenues of the Company and its
Subsidiaries as determined in accordance with generally accepted accounting
principles for such period on a consolidated basis.
"Control Affiliate" means, with respect to the Company, any Affiliate
that directly or indirectly through one or more intermediaries (i) controls the
Company or (ii) beneficially owns, holds or controls 10% or more of the combined
voting power of the total Voting Stock of the Company.
"Default" means an event or condition the occurrence of which would,
with the lapse of time or the giving of notice or both, become an Event of
Default as defined in Section 6.01.
"Depositary" means, with respect to Securities of any series issuable
in whole
16
<PAGE>
or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 3.01.
"Fair Market Value" means, with respect to an Asset Sale involving any
Property or any noncash consideration received by or transferred to any Person,
the fair market value of such Property or such noncash consideration as
determined in good faith (i) in the case of any Asset Sale involving any
Property or any such noncash consideration with a fair market value of less than
$5 million, by the Company as evidenced by an Officers' Certificate and (ii) in
the case of any Asset Sale involving any Property or any such noncash
consideration with a fair market value of more than $5 million, by the Board of
Directors of the Company.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.02 (or such
legend as may be specified as contemplated by Section 3.01 for such Securities).
"Guarantee" means any direct or indirect obligation, contingent or
otherwise, of a Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person in any manner.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness," as applied to any Person, means, without duplication,
(i) any obligation, contingent or otherwise, for borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof), (ii) any obligation owed for all or any part of the
purchase price of Property or other assets or for the cost of Property or other
assets constructed or of improvements thereto (including any obligation under or
in connection with any letter of credit related thereto), other than accounts
payable included in current liabilities incurred in respect of Property and
services purchased in the ordinary course of business, (iii) except to the
extent supporting other Indebtedness of a Person, any obligation of such Person
under or in connection with any letter of credit issued for the account of such
Person, and, without duplication, all drafts drawn, or demands for payment
honored, thereunder, (iv) any obligation, contingent or otherwise, as set forth
in subclauses (i) and (ii) of this definition, secured by any Lien in respect of
Property even though the Person owning the Property has not assumed or become
liable for payment of such obligation, (v) any Capitalized Lease Obligation,
(vi) any note payable or draft accepted representing an extension of credit
(other than extensions of credit for Property and services purchased in the
ordinary course of business), whether or not representing an obligation for
17
<PAGE>
borrowed money, (vii) the maximum fixed repurchase price of any Redeemable
Stock, (viii) obligations in respect of Interest Swap Obligations and (ix) any
obligation which is in economic effect a Guarantee, regardless of its
characterization, with respect to Indebtedness (of a kind otherwise described in
this definition) of another Person. For purposes of the preceding sentence, the
maximum fixed repurchase price of any Redeemable Stock which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Stock as if such Redeemable Stock were repurchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture. The amount of Indebtedness of any Person at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability of any such contingent obligations at such date.
"Indenture" means this Indenture, as amended, modified or supplemented
from time to time, together with any exhibits, schedules or other attachments
hereto. The term "Indenture" shall also include the terms of particular series
of Securities established as contemplated by Section 3.01.
"Interest Swap Obligations" means the obligations of any Person
pursuant to any interest rate swap agreement, interest rate cap, collar or floor
agreement or other similar agreement or arrangement.
"Investment" means, with respect to any Person (such Person being
referred to in this definition as the "Investor"), (i) any amount paid by the
Investor, directly or indirectly, or any transfer of Property by the Investor,
directly or indirectly (such amount to be the Fair Market Value of such Property
at the time of transfer by the Investor), to any other Person for Capital Stock
of, or as a capital contribution to, any other Person and (ii) any direct or
indirect loan or advance by the Investor to any other Person (other than
accounts receivable of such Investor arising in the ordinary course of
business).
"Joint Venture" means any Person (other than a Subsidiary of the
Company) in which any Person other than the Company or any of its Subsidiaries
has a joint or shared equity interest with the Company or any of its
Subsidiaries.
"Lien" means any mortgage, lien (statutory or other), charge, pledge,
hypothecation, conditional sales agreement, adverse claim, title retention
agreement or other security interest, encumbrance or title defect in or on, or
any interest or title of any vendor, lessor, lender or other secured party to or
of such Person under any conditional sale, trust receipt or other title
retention agreement with respect to, any Property or asset of such Person.
18
<PAGE>
"Management Agreement" means, the Management Agreement dated as of the
date hereof, among the Company, Hirsch & Fox, L.L.C., Gary D. Hirsch and Martin
A. Fox, as the same may be modified, amended or supplemented from time to time.
"Material Acquisition" means any merger, consolidation, acquisition or
lease of assets, acquisition of securities or other business combination or
acquisition, or any two or more such transactions if part of a common plan to
acquire a business or group of businesses, if the assets thus acquired in the
aggregate would have constituted a Material Subsidiary if they had been acquired
by a Subsidiary, based upon the consolidated financial statements of the Company
and its Subsidiaries for the most recent fiscal year for which financial
statements are available.
"Material Subsidiary" means, with respect to the Company at any time,
each existing Subsidiary and each Subsidiary hereafter acquired or formed which
(i) for the most recent fiscal year of the Company for which financial
statements are available accounted for more than 10% of the consolidated
revenues of the Company and its Subsidiaries or (ii) as at the end of such
fiscal year, was the owner (beneficial or otherwise) of more than 10% of the
consolidated assets of the Company and its Subsidiaries, all as shown on the
consolidated financial statements of the Company and its Subsidiaries for such
fiscal year.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Net Proceeds" means, with respect to an Asset Sale by the Company or
any of its Subsidiaries, (i) the gross proceeds received by the Company or its
Subsidiary in connection with such Asset Sale (the amount of any noncash
consideration received as proceeds to be the Fair Market Value of such
consideration, provided that liabilities assumed by the buyer shall not be
deemed proceeds received by the Company or its Subsidiary), less (ii) the sum of
(a) reasonable fees and expenses incurred by the Company or such Subsidiary in
connection with such Asset Sale, (b) taxes payable by the Company or such
Subsidiary as a result of and in connection with such Asset Sale, including any
tax on income resulting from the gain realized from such Asset Sale, (c)
payments made with respect to liabilities associated with the assets which are
the subject of the Asset Sale, including, without limitation, trade payables and
other accrued liabilities, and payments made to retire Indebtedness where the
assets disposed of in such Asset Sale constituted security for or had been
pledged to secure such Indebtedness and payment of such Indebtedness is required
in connection with such Asset Sale and (d) appropriate amounts to be provided by
the Company or any Subsidiary thereof, as the case may be, as a reserve, in
accordance with generally accepted accounting principles, against any
liabilities associated with such assets and retained by the Company or any
Subsidiary thereof, as the case may be, after such Asset Sale, including,
without limitation, liabilities under any indemnification obligations and
severance and other employee termination costs associated with such Asset Sale.
19
<PAGE>
"Officer" means the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, Chairman of the Executive Committee of the
Board of Directors, Vice Chairman of the Executive Committee of the Board of
Directors,, the President, any Vice President, the Treasurer, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers of
the Company, one of whom must be the Chairman of the Board of Directors, the
Vice Chairman of the Board of Directors, Chairman of the Executive Committee of
the Board of Directors, Vice Chairman of the Executive Committee of the Board of
Directors, the President, any Vice President or the Treasurer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Other Senior Indebtedness" means, at any date, outstanding
Indebtedness of the Company, other than the Securities, that is pari passu in
any respect in right of payment with the Securities, including, without
limitation, Indebtedness outstanding under the Secured Credit Facility.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which the Company's obligations have been
discharged as provided in Article 8 hereof; and
20
<PAGE>
(4) Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there
shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of
the requisite principal amount of the Outstanding Securities have
given, made or taken any request, demand, authorization, direction,
notice, consent, waiver or other action hereunder as of any date,
Securities owned by the Company or any Affiliate shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any
Affiliate of the Company.
"Person" means any individual, partnership, corporation, venture, joint
venture, unincorporated organization, or a government or agency or political
subdivision thereof.
"Principal" or "principal" of a debt security means the principal
amount of a debt security plus the premium, if any, on such debt security.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Qualified Equity Offering" means an issuance and offering for cash by
the Company of shares of its Capital Stock, other than Redeemable Stock.
"Qualified Investment" means the following kinds of instruments if, on
the date of purchase or other acquisition of any such instrument by the Company
or any Subsidiary the remaining term to maturity thereof is not more than one
year: (i) obligations issued or unconditionally guaranteed as to principal and
interest by the United States of America or by any agency or authority
controlled or supervised by and acting as an instrumentality of the United
States of America; (ii) obligations (including, but not limited to, demand or
time
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deposits, bankers' acceptances and certificates of deposit) issued by (a) a
depository institution or trust company incorporated under the laws of the
United States of America, any state thereof or the District of Columbia, (b) a
United States branch office or agency of any foreign depository institution or
(c) wholly owned Subsidiaries of any U.S. depository institution guaranteed by
such U.S. bank or depository, provided that such U.S. bank, trust company or
United States branch office or agency has, at the time of the Company's or any
Subsidiary's investment therein or contractual commitment providing for such
investment, capital, surplus or undivided profits (as of the date of such
institution's most recently published financial statements) in excess of $100
million and the longterm unsecured debt obligations (other than such obligations
rated on the basis of the credit of a person or entity other than such
institution) of such institution, at the time of the Company's or any
Subsidiary's investment therein or contractual commitment providing for such
investment, is rated at least A by Standard & Poor's Ratings Service or A3 by
Moody's Investors Service, Inc.; and (iii) debt obligations (including, but not
limited to, commercial paper and medium term notes) issued or unconditionally
guaranteed as to principal and interest by any corporation, state or municipal
government or agency or instrumentality thereof, or foreign sovereignty if the
commercial paper of such corporation, state or municipal government or foreign
sovereignty has, at the time of the Company's or any Subsidiary's investment
therein or contractual commitment providing for such investment, credit ratings
of A1 by Standard & Poor's Ratings Service or P1 by Moody's Investors Service,
Inc., or the debt obligations of such corporation, state or municipal government
or foreign sovereignty, at the time of the Company's or any Subsidiary's
investment therein or contractual commitment providing for such investment, have
credit ratings of at least A by Standard & Poor's Ratings Service or A3 by
Moody's Investors Service, Inc.
"Redeemable Dividend" means, for any dividend payable with regard to
Redeemable Stock, the quotient of the dividend divided by the difference between
one and the maximum statutory federal income tax rate (expressed as a decimal
number between 1 and 0) then applicable to the issuer of such Redeemable Stock.
"Redeemable Stock" means, with respect to any Person, any equity
security that by its terms or otherwise is required to be redeemed or is
redeemable at the option of the holder at any time prior to the maturity of the
Securities.
"Redemption Date" means, when used with respect to any Security to be
redeemed, the date fixed for such redemption pursuant to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
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redeemed, the price fixed for such redemption pursuant to this Indenture and the
Securities as set forth in Article 10 of this Indenture.
"Representative" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Debt.
"Restricted Payment" means (i) a dividend or other distribution
declared and paid on the Capital Stock of the Company or any of its
Subsidiaries, other than dividends or distributions consisting of shares of the
Capital Stock of such entity (or rights or warrants to subscribe for or purchase
shares of such Capital Stock) and other than dividends or distributions declared
and paid by any Subsidiary to the Company or to any other direct or indirect
Wholly Owned Subsidiary of the Company, (ii) a payment made by the Company, any
Subsidiary or any Unrestricted Subsidiary (other than to the Company or any
Subsidiary) to purchase, redeem, acquire or retire any Capital Stock of the
Company (or rights or warrants to subscribe for or purchase shares of such
Capital Stock) or (iii) a payment made by the Company, any Subsidiary or any
Unrestricted Subsidiary (other than to the Company or any Subsidiary) to
acquire, retire or redeem any debt of or equity interest in or otherwise to make
any Investment in any Control Affiliate of the Company (other than a Subsidiary
of the Company).
"Sale and Leaseback Transaction" means any direct or indirect
arrangement with any Person or to which such Person is a party, providing for
the leasing to the Company or a Subsidiary of any Property, whether owned at the
date of issuance of a particular series of Securities pursuant to this Indenture
or thereafter acquired, which has been or is to be sold or transferred by the
Company or such Subsidiary to such Person, or to any other Person to whom funds
have been or are to be advanced by such Person, on the security of such
Property.
"SEC" means the Securities and Exchange Commission.
"Secured Credit Amount" means as of any date an amount equal to the
greater of (i) $350.0 million or (ii) 15% of the Company's Consolidated Revenue
for the four quarters ended as of the last fiscal quarter immediately preceding
such date for which financial results are available.
"Secured Credit Facility" means (i) the Loan and Security Agreement
dated June_28, 1999 between the Company, its Subsidiaries and the lenders named
therein, and Fleet Capital Corporation, as agent, as the same may be amended,
modified, renewed,
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refunded, replaced or refinanced from time to time with the same or different
lenders or Subsidiaries, including, without limitation, any security agreements,
pledge agreements, notes, letters of credit, guarantees, collateral documents,
instruments and agreements executed in connection therewith, in each case as
such agreements may be amended, restated, replaced, renewed, refunded,
refinanced, supplemented or otherwise modified from time to time; and (ii) any
senior secured or unsecured notes issued by the Company to refund, replace or
refinance all or a portion of the foregoing or any Indebtedness that refinances,
refunds, replaces or renews any such refinancing Indebtedness.
"Securities" has the meaning set forth in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Senior Indebtedness" means, at any date, any outstanding Indebtedness
of the Company that is pari passu in any respect in right of payment with the
Securities.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subordinated Debt" means, at any date, any Indebtedness of the Company
that is subordinated in any respect in right of payment to the Securities or any
Other Senior Indebtedness including, without limitation, principal, premium,
interest, fees, indemnities and amounts in respect of claims and rights of
rescission.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which securities representing more than
50% of the combined voting power of the total Voting Stock (or, in the case of
an association or other business entity which is not a corporation, more than
50% of the equity interest) is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, provided that an Unrestricted Subsidiary shall
not be deemed to be a Subsidiary for purposes of this Indenture. When used
herein without reference to any Person, Subsidiary means a Subsidiary of the
Company.
"Surviving Corporation" means the corporation formed by or surviving
any consolidation or merger involving the Company or to which a transfer, sale
or lease of all or substantially all of the Company's Property is made.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss.77aaa77bbbb), as amended by the Trust Indenture Reform Act of 1990, as in
effect on the date of execution of this Indenture, except as provided in Section
9.03.
"Transaction Date" means the date of the transaction giving rise to the
need to calculate the Consolidated Interest Coverage Ratio, provided that if
such transaction is related to or in connection with any acquisition of any
Person, the Transaction Date shall be the earlier of (i) the date on which the
Company or any of its Subsidiaries enters into an agreement with such Person to
effect such acquisition, (ii) the date on which the Company or any of its
Subsidiaries first makes a public announcement of such acquisition or any offer
or proposal to effect such acquisition, (iii) the date on which the Company or
any of its Subsidiaries first makes a filing with the SEC or the Federal Trade
Commission in connection with any proposed acquisition and (iv) the date such
acquisition is consummated, provided, however, that if subsequent to the
occurrence of an event described in clause (i), (ii) or (iii) above or clause
(A), (B) or (C) below the Company or any of its Subsidiaries shall amend the
terms of such acquisition with respect to the consideration payable by the
Company or any of its Subsidiaries in connection with such acquisition, the
Transaction Date shall be the earlier of (A) the date on which the Company or
any of its Subsidiaries enters into a binding written agreement with such Person
to effect such acquisition on such amended terms, (B) the date on which the
Company or any of its Subsidiaries makes a public announcement of any offer or
proposal to effect such acquisition on such amended terms and (C) the date on
which the Company or any of its Subsidiaries first makes a filing disclosing
such amended terms with the SEC or the Federal Trade Commission in connection
with any proposed acquisition. The second proviso above shall not be applicable
if, as of the initial Transaction Date with respect to any acquisition, the
Company could incur at least $1.00 of additional Indebtedness under Section
4.03(a) hereof when the Consolidated Interest Coverage Ratio of the Company is
calculated on the basis of the amended terms of such acquisition and the
Indebtedness to be incurred by the Company and its Subsidiaries in connection
therewith.
"Trustee" means the party named as such in the first paragraph of this
instrument above unless and until a successor replaces it in accordance with the
terms of this Indenture and thereafter, "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Department (or any successor group) of the
Trustee, including
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without limitation any Vice President, Assistant Vice President, any Assistant
Secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the abovedesignated officers and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom corporate trust matters are referred because of his
knowledge of and familiarity with the particular subject.
"Unrestricted Subsidiary" means (i) any corporation, association or
other business entity which would be a Subsidiary but for its designation as an
Unrestricted Subsidiary by the Board of Directors of the Company at or before
the time of determination as provided below, and (ii) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors may designate any Subsidiary
(including any newly acquired or newly formed Subsidiary) to be an Unrestricted
Subsidiary unless such Subsidiary owns any Capital Stock of or owns or holds any
Lien on any Property of the Company or any other Subsidiary of the Company which
is not a Subsidiary of the Subsidiary to be so designated, provided that either
(x) the Subsidiary to be so designated has total assets of $1,000 or less or (y)
immediately after giving pro forma effect to such designation (1) the
Consolidated Interest Coverage Ratio would be greater than 2.0 to 1 and (2)
there would not exist any Default under this Indenture. The Board of Directors
of the Company may designate any Unrestricted Subsidiary to be a Subsidiary,
provided that, immediately after giving pro forma effect to such designation,
(1) the Consolidated Interest Coverage Ratio would be greater than 2.0 to 1 and
(2) there would not exist any Default under this Indenture.
"Voting Stock" means any class of Capital Stock of any Person then
outstanding normally entitled to vote in elections of directors, managers or
trustees of any such Person (irrespective of whether or not at the time stock of
any class or classes will have or might have voting power by reason of the
happening of any contingency).
"Wholly Owned Subsidiary" means any Subsidiary of which 100% of the
total Voting Stock is at the time owned by the Company or by a Wholly Owned
Subsidiary of the Company.
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b. Other Definitions.
Term Defined in Section
"Authenticating Agent" 7.12
"Bankruptcy Law" 6.01
"Change of Control Date" 5.01
"Custodian" 6.01
"Discharged" 8.01
"Event of Default" 6.01
"Exchange Act" 4.08
"Legal Holiday" 11.07
"Paying Agent" 3.04
"Registrar" 3.04
"U.S. Government Obligations" 8.01
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c. 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 Securities;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
"obligor" on the Securities means the Company.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings assigned to them thereby.
d. 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
generally accepted accounting principles in
effect on the date of the construction of such
term;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and in
the plural include the singular; and
(e) provisions apply to successive events and
transactions.
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2.
FORM OF THE SECURITIES
a. Form.
The Securities of each series shall be substantially in the form of
Exhibit A, which is part of this Indenture or in such other form as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or Depositary therefor or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof. If determined to be necessary by the
Company or its counsel, the Company may require that a legend be placed on the
Securities of any series relating to original issue discount or other applicable
tax matters. The Company shall furnish any such legends or endorsements to the
Trustee in writing. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities.
b. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITOR OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES. EVERY SECURITY DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR, OR IN LIEU OF THIS GLOBAL SECURITY SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED ABOVE.
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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 TO BE 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.
c. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the withinmentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY, As Trustee
By:__________________________________
"Authorized Signatory"
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3.
THE SECURITIES
a. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.03,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(a) the title of the Securities of the series (which
shall distinguish the Securities of the series
from Securities of any other series);
(b) any limit upon the aggregate principal amount of
the Securities of the series which may be
authenticated and delivered under this Indenture
(except for Securities authenticated and
delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of
the series pursuant to Section 3.07, 3.08 or 3.09
and except for any Securities which, pursuant to
Section 3.03, are deemed never to have been
authenticated and delivered hereunder);
(c) the Person to whom any interest on a Security of
the series shall be payable, if other than the
Person in whose name that Security (or one or
more predecessor Securities) is registered at the
close of business on the regular record date for
such interest;
(d) the date or dates on which the principal of any
Securities of the series is payable;
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(e) the rate or rates (which may be fixed or
variable) per annum, or the method for
determining such rate or rates, at which any
Securities of the series shall bear interest, if
any, the date or dates from which any such
interest shall accrue, the date on which each
installment of any such interest shall be payable
and the record date for any such payment of
interest, and the method for the payment of
interest on any Securities, whether in cash or
through the issuance of additional Securities;
(f) the place or places, if other than as set forth
in the Indenture, where the principal of and any
premium and interest on any Securities of the
series shall be payable;
(g) the period or periods within which, the price or
prices at which and the terms and conditions upon
which any Securities of the series may be
redeemed in whole or in part at the option of the
Company and, if other than by a Board Resolution,
the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(h) the obligation, if any, of the Company to redeem
or purchase any Securities of the series pursuant
to any sinking fund or analogous provisions or at
the option of the Holder thereof and the period
or periods within which, the price or prices at
which and the terms and conditions upon which any
Securities of the series shall be redeemed or
purchased in whole or in part pursuant to such
obligation;
(i) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in
which any Securities of the series shall be
issuable;
(j) if the amount of principal of or any premium or
interest on any Securities of the series may be
determined with reference to an index or pursuant
to a formula, the manner in which such amounts
shall be determined;
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(k) if other than the entire principal amount
thereof, the portion of the principal amount of
any Securities of the series which shall be
payable upon declaration of acceleration of the
Maturity thereof pursuant to Section 6.02;
(l) if the principal amount payable at the Stated
Maturity of any Securities of the series will not
be determinable as of any one or more dates prior
to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such
Securities as of any such date for any purpose
thereunder or hereunder, including the principal
amount thereof which shall be due and payable
upon any Maturity other than the Stated Maturity
or which shall be deemed to be Outstanding as of
any date prior to the Stated Maturity (or, in any
such case, the manner in which such amount deemed
to be the principal amount shall be determined);
(m) if applicable, that any Securities of the series
shall be issuable in whole or in part in the form
of one or more Global Securities and, in such
case, the respective Depositaries for such Global
Securities, the form of any legend or legends
which shall be borne by any such Global Security
in addition to or in lieu of that set forth in
Section 2.02 and any circumstances in addition to
or in lieu of those set forth in Clause (2) of
the last paragraph of Section 3.07 in which any
such Global Security may be exchanged in whole or
in part for Securities registered, and any
transfer of such Global Security in whole or in
part may be registered, in the name or names of
Persons other than the Depositary for such Global
Security or a nominee thereof;
(n) any addition to or change in the Events of
Default which applies to any Securities of the
series and any change in the right of the Trustee
or the requisite Holders of such Securities to
declare the principal amount thereof due and
payable pursuant to Section 6.02;
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(o) any addition to or change in the covenants set
forth in Article 4 which applies to Securities of
the series; and
(p) any other terms of the series (which terms shall
not be inconsistent with the provisions of this
Indenture, except as permitted by Section
9.01(6)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 3.03) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall rank pari passu with Other Senior Indebtedness and
senior to Subordinated Debt.
b. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 3.01. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
c. Execution, Authentication, Delivery and Dating.
The Securities shall be signed for the Company by the Company's
President or any Vice Chairman or Vice President and shall be attested by the
Company's Secretary or an Assistant Secretary, in each case by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
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If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions or supplemental indentures as
permitted by Sections 2.01 and 3.01, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been
established by or pursuant to Board Resolution or
supplemental indenture, as the case may be, as
permitted by Section 2.01, that such form has
been established in conformity with the
provisions of this Indenture;
(b) if the terms of such Securities have been
established by or pursuant to Board Resolution or
supplemental indenture, as the case may be, as
permitted by Section 3.01, that such terms have
been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the
Company in the manner and subject to any
conditions specified in such Opinion of Counsel,
will constitute valid and legally binding
obligations of the Company enforceable in
accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of
general applicability relating to or affecting
creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. The Trustee shall also be
entitled to receive an Officers' Certificate stating that immediately after the
authentication and delivery of such Securities, (a) the aggregate principal
amount of Securities Outstanding will not exceed the maximum aggregate principal
amount permitted to be Outstanding pursuant to authorization by the Board of
Directors and (b) the Company will not be in Default and no Event of Default
will have occurred. In addition, if the form and/or terms of such Securities
have been established pursuant to a supplemental indenture, the Trustee shall be
entitled to receive the Opinion of Counsel referred to in Section 9.06 hereof.
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Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.01 or the Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series to be
issued.
Each Security shall be dated the date of its authentication.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 3.10, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities 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.
d. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more coRegistrars and one or more
additional Paying Agents. The term Paying Agent includes any additional Paying
Agent. The Company or any of its subsidiaries may act as Paying Agent, Registrar
or co-Registrar.
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The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture that shall implement the provisions of this
Indenture that relate to such Agent. The Company shall give prompt written
notice to the Trustee of the name and address of any such Agent and any change
in the address of such Agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such. The Company initially appoints the
Trustee, as Paying Agent and Registrar.
e. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree that such Paying Agent will:
i. hold all sums held by it for the payment of the
principal of or interest on the Securities in trust
for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
ii. give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the
making of any payment of principal or interest; and
iii. at any time during the continuance of any such
default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
Upon such payment over to the Trustee, the Paying Agent shall have no further
liability for such money.
f. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Company shall furnish or cause
to be furnished to the Trustee not less than ten days before each interest
payment date and at such other times as the Trustee may request in writing all
information in the possession or control of the Company or any Paying Agent as
to the names and addresses of the Holders, in such form and as of such date as
the Trustee may reasonably require.
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g. Transfer and Exchange.
When Securities of any series are presented to the Registrar or a
coRegistrar with a request to register the transfer of, or to exchange them for
an equal principal amount of Securities of such series of other denominations,
the Registrar shall register the transfer or make the exchange if its
requirements for such transactions are met. To permit registrations of transfer
and exchanges of Securities of any series, the Company shall issue and the
Trustee shall authenticate Securities of such series at the Registrar's request.
No service charge shall be made for any registration of transfer or
exchange of Securities of any series, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of any selection of Securities of such series
for redemption under Section 10.02 and ending at the close of business on the
day of such day of selection or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of any such Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(a) Each Global Security authenticated under this
Indenture shall be registered in the name of the
Depositary designated for such Global Security or
a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall
constitute a single Security for all purposes of
this Indenture.
(b) Notwithstanding any other provision in this
Indenture, no Global Security may be exchanged in
whole or in part for Securities registered, and
no transfer of a Global Security in whole or in
part may be registered, in the name of any Person
other than the Depositary for such Global
Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it
is unwilling or unable to continue as Depositary
for such Global Security or (ii) has ceased to be
a clearing agency registered under the Exchange
Act, (B) there shall have occurred and be
continuing an Event of Default with respect to
the Securities represented by such Global
Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu
of the foregoing as have been specified for this
purpose as contemplated by Section 3.01.
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(c) Subject to Clause (2) above, any exchange of a
Global Security for other Securities may be made
in whole or in part, and all Securities issued in
exchange for a Global Security or any portion
thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for
or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section,
Section 3.08 or 3.09 or otherwise, shall be
authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security
is registered in the name of a Person other than
the Depositary for such Global Security or a
nominee thereof.
h. Replacement Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If the Holder of a Security of any series claims that the Security has
been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Security of the same series if
Trustee's requirements are met. If required by the Trustee or the Company, such
Holder shall provide an indemnity bond sufficient in the judgment of both the
Company and the Trustee to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge the Holder for its expenses in replacing a
Security.
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Every replacement Security of any series issued pursuant to the
provisions of this Section 3.08 by virtue of the fact that any Security of such
series is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be found at any time, and shall be entitled to all the benefits of this
Indenture equally and proportionally with any and all other Securities of such
series duly issued hereunder.
i. Temporary Securities.
Until definitive Securities of any series are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities of
such series. Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. If temporary Securities of any series are
issued, without unreasonable delay, the Company shall prepare and deliver to the
Trustee, and the Trustee shall authenticate, definitive Securities of that
series in exchange for such temporary Securities.
j. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
cancelled Securities and deliver a certificate of such destruction to the
Company. Subject to Section 3.08, the Company may not issue new Securities to
replace Securities that it has paid or that have been delivered to the Trustee
for cancellation.
k. Defaulted Interest.
If the Company fails to make a payment of interest on the Securities of
any series on the date that payment of such interest is due, it shall pay such
interest thereafter in any lawful manner. It may pay such interest, plus any
interest payable on it, to the Persons who are Holders on a subsequent special
record date. The Company shall fix such special record date and payment date. At
least 5 days before such record date, the Company shall mail to Holders, the
Trustee and any paying agents a notice that states the record date, payment
date, and amount of such interest to be paid.
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l. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee (including,
without limitation, the Registrar and the Paying Agent) may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee (including, without limitation, the Registrar and the
Paying Agent) shall be affected by notice to the contrary.
m. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360 day year of twelve 30 day months.
4.
COVENANTS
The Company covenants and agrees, with respect to each series of
Securities issued hereunder, that it will comply with the covenants set forth in
this Article 4, as such covenants may be changed or supplemented with respect to
such series of Securities as contemplated by Section 3.01 hereof.
a. Payment of Securities.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture. Principal, premium and interest shall be
considered paid on the date due if the Paying Agent holds on that date money (or
other consideration permitted to be paid by the terms of such series of
Securities) designated for and sufficient to pay all principal, premium and
interest then due.
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With respect to any series of Securities permitted by its terms to pay
interest thereon by the issuance of additional Securities of such series, the
Company shall notify the Trustee in writing of its election to pay interest on
such Securities through the issuance of additional Securities of such series and
the aggregate amount of such additional Securities of such series to be issued
not less than 10 nor more than 45 days prior to the record date for the interest
payment date on which additional Securities of such series will be issued. On
each such interest payment date, the Trustee shall authenticate additional
Securities of such series for original issuance to each Holder on the relevant
record date in the aggregate principal amount required to pay such interest.
Each such additional Security of such series is an additional obligation of the
Company and shall be governed by, and entitled to the benefits of, this
Indenture and shall be subject to the terms of this Indenture and shall rank
pari passu with and be subject to the same terms (including the rate of interest
from time to time payable thereon) as the Securities (except, as the case may
be, with respect to the issuance date and aggregate principal amount).
The Company shall pay interest on overdue principal of any series of
Securities at the rate borne by such series of Securities; it shall pay interest
on overdue installments of interest on any series of Securities at the same rate
to the extent permitted by law.
b. Limitation on Restricted Payments.
i. The Company shall not, nor will it permit any of its
Subsidiaries or Unrestricted Subsidiaries to, make any
Restricted Payment if, after giving effect thereto, with
respect to any particular series of Securities issued
hereunder, (i) any Default shall have occurred and be
continuing or (ii) the Company could not incur at least
$1.00 of additional Indebtedness under Section 4.03(a)
hereof or (iii) the aggregate of such payments made by the
Company and its Subsidiaries and Unrestricted Subsidiaries
subsequent to the date of issuance of such series of
Securities would exceed the sum of (x) 50% (or minus 100%
in the event of a deficit) of aggregate Consolidated Net
Income of the Company for the period commencing on the
date established by Board Resolution for this purpose as
permitted by Section 3.01 and ending on the last day of
the fiscal quarter immediately preceding the date of such
Restricted Payment, and (y) the aggregate Net Proceeds,
including cash and the Fair Market Value of Property other
than cash, received by the Company subsequent to the date
of issuance of such series of Securities from capital
contributions from any of its stockholders or from the
issuance or sale (other than to a Subsidiary or
Unrestricted Subsidiary) subsequent to the date of
issuance of such series of Securities of shares
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of its Capital Stock of any class, other than Redeemable
Stock (or rights or warrants to subscribe for or purchase
shares of such Capital Stock, other than Redeemable Stock)
or of any convertible securities or debt obligations which
have been converted into, exchanged for or satisfied by
the issuance of shares of Capital Stock of any class,
other than Redeemable Stock. For purposes of computing the
amount in clause (iii) above, the determination of
Consolidated Net Income of the Company for any fiscal
period ending prior to the date established by Board
Resolution for this purpose as permitted by Section 3.01
shall exclude the deduction of an amount equal to the
aggregate charges (net of applicable tax) incurred by the
Company related to the repurchase or retirement of
Indebtedness prior to its stated maturity.
ii. The provisions of this Section 4.02 shall not prevent
the Company from paying a dividend on Capital Stock of any
class within 60 days after the declaration thereof if, on
the date of declaration, the Company could have paid such
dividend in compliance with the other provisions of this
Section 4.02. With respect to any particular series of
Securities issued hereunder, the aggregate amount of
dividends paid by the Company pursuant to this subsection
subsequent to the date of issuance of such series of
Securities shall be included in all subsequent
computations under this Section 4.02.
iii. The provisions of this Section 4.02 shall also not
prevent the Company from redeeming or repurchasing shares
of its Capital Stock (1) solely in exchange for other
shares of Capital Stock (other than Redeemable Stock), (2)
to eliminate fractional shares, (3) in connection with
repurchase provisions under employee stock option or stock
purchase agreements or other agreements to compensate
management employees of the Company or (4) pursuant to a
court order. With respect to any particular series of
Securities issued hereunder, the aggregate amount of
consideration paid by the Company pursuant to this
subsection subsequent to the date of issuance of such
series of Securities shall be included in all subsequent
computations under this Section 4.02. The aggregate
consideration paid pursuant to subclause (2) shall not
exceed $250,000 in any fiscal year.
c. Limitation on Indebtedness.
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i. The Company shall not, nor will it permit any of its
Subsidiaries to, create, incur, assume, Guarantee or
otherwise become liable with respect to, or become
responsible for the payment of, any Indebtedness unless,
after giving effect thereto, the Consolidated Interest
Coverage Ratio of the Company is greater than 2.0 to 1.
ii. Notwithstanding the foregoing, the Company and its
Subsidiaries may incur, create, assume, or Guarantee or
otherwise become liable with respect to, any or all of the
following:
(1) with respect to any particular series of
Securities issued hereunder, Indebtedness
evidenced by securities issued at or prior
to the issuance of such series of Securities
pursuant to this Indenture;
(2) Intentionally Omitted.
(3) Indebtedness under the Secured Credit
Facility in an aggregate amount not to
exceed the Secured Credit Amount;
(4) Indebtedness the proceeds of which are used
to refinance (x) all or a portion of the
Securities of any series issued pursuant to
this Indenture, (y) any Indebtedness of its
Subsidiaries and any other Indebtedness of
the Company that is pari passu with the
Securities (other than Indebtedness
incurred, created, assumed or Guaranteed
under clause (iii) above) or (z) successor
or replacement Indebtedness, in each case in
a principal amount not to exceed the
principal amount so refinanced (or, if such
Indebtedness provides for an amount less
than the principal amount thereof to be due
and payable upon a declaration of
acceleration of the maturity thereof, in an
amount not greater than such lesser amount)
plus any prepayment penalties and premiums
(including the contractual premiums and any
premium reasonably determined by the Company
as necessary to accomplish such refinancing
by means of a tender offer or privately
negotiated repurchases), accrued and unpaid
interest on the Indebtedness so refinanced,
plus customary fees, expenses and costs
related to the incurrence of such
refinancing Indebtedness, provided that, in
the case of this clause (iv), (1) with
respect to any particular series of
Securities issued hereunder, if the
Securities of such series are refinanced in
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part, such new Indebtedness is expressly
made pari passu or subordinate in right of
payment to the remaining Securities of such
series, and (2) if the Indebtedness to be
refinanced is pari passu in right of payment
to the Securities issued pursuant to this
Indenture, such new Indebtedness is
expressly made pari passu or subordinate in
right of payment to the Securities issued
pursuant to this Indenture;
(5) Intentionally Omitted.
(6) with respect to any particular series of
Securities issued hereunder, Indebtedness of
the Company and its Subsidiaries remaining
outstanding immediately after the date of
issuance of such series of Securities;
(7) Indebtedness of the Company to a Subsidiary
of the Company or Indebtedness of a
Subsidiary of the Company to the Company or
to another Subsidiary of the Company;
(8) Indebtedness incurred in connection with the
refurbishment, improvement, construction or
acquisition (whether by acquisition of
stock, assets or otherwise) of any Property
or Properties of the Company or a Subsidiary
of the Company that constitute a part of the
then present business of the Company or any
Subsidiary of the Company (or incurred
within twelve months of any such acquisition
or the completion of such refurbishment,
improvement or construction), provided that
(a)(1) such Indebtedness, together with any
other Indebtedness incurred during the
preceding twelvemonth period in reliance
upon the exception of this clause (viii),
does not exceed, in the aggregate, 3% of net
sales and service fees of the Company and
its Subsidiaries during the preceding
twelvemonth period on a consolidated basis
and (2) such Indebtedness, together with all
then outstanding Indebtedness incurred in
reliance upon the exception of this clause
(viii), does not exceed, in the aggregate,
3% of the aggregate net sales and service
fees of the Company and its Subsidiaries
during the preceding thirtysix months on a
consolidated basis, in each case as such
amounts may be adjusted as set forth below,
or (b) such Indebtedness does not exceed the
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amount of proceeds received by the Company
or any of its Subsidiaries from insurance
policies maintained by the Company or any
Subsidiary in respect of such Property or
Properties;
(9) Indebtedness consisting of Guarantees by the
Company or a Subsidiary of the Company of
(A) other Indebtedness of the Company or any
such Subsidiary, provided that such other
Indebtedness is otherwise permitted under
this Section 4.03 and (B) obligations of
customers of the franchise or wholesale
business of the Company or a Subsidiary of
the Company which Guarantees are in the
ordinary course of business consistent with
the past practice of the Company or its
Subsidiaries;
(10) Indebtedness created by a Lien to which
Property owned or held by the Company or a
Subsidiary of the Company is subject,
provided that the Indebtedness secured is
Indebtedness of the Company or a Subsidiary
of the Company which is otherwise permitted
under this Section 4.03;
(11) Indebtedness incurred in connection with a
repurchase of the Securities of any series
issued pursuant to this Indenture as
provided in Section 5.01 hereof and in
connection with the repurchase of any notes
of the Company which require the Company to
repurchase such notes in the event of
certain merger, consolidation or change of
control transactions, in an aggregate
principal amount not to exceed the aggregate
repayment price (equal to the repurchase
price paid, including premium and accrued
interest thereon through the date of
repurchase) of such Securities and such
other notes of the Company plus the amount
of fees and expenses associated with the
incurrence of such Indebtedness, provided
that to the extent any such notes of the
Company which are required to be so
repurchased constitute Subordinated Debt,
any new Indebtedness incurred in connection
with the repurchase of such notes (a) is
expressly made subordinate to the Securities
issued hereunder at least to the extent that
such notes are subordinate to the Securities
issued hereunder, (b) with respect to any
particular series of Securities issued
hereunder, does not mature prior to the
final scheduled maturity date of such series
of Securities and (c) with respect to any
particular series of Securities issued
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hereunder, has an Average Life equal to or
greater than the remaining Average Life of
such series of Securities;
(12) Indebtedness under Interest Swap
obligations, provided that such Interest
Swap Obligations are related to payment
obligations on Indebtedness otherwise
permitted under this Section 4.03 and, in
the aggregate, do not relate to a principal
amount of Indebtedness in excess of the
Indebtedness permitted under this Section
4.03;
(13) commercial letters of credit and standby
letters of credit incurred in the ordinary
course of business by the Company or its
Subsidiaries;
(14) Indebtedness represented by industrial
revenue or development bonds, provided that
the aggregate amount of Indebtedness
incurred in reliance upon the exception of
this clause (xiv) shall not exceed at any
one time an aggregate principal amount
outstanding of $25 million;
(15) Capitalized Lease Obligations relating to
Property used in the business of the Company
or its Subsidiaries;
(16) Indebtedness incurred in respect of
performance bonds and Guarantees and
completion Guarantees incurred in the
ordinary course of business and refinancings
thereof;
(17) Indebtedness arising from the honoring by a
bank or other financial institution of a
check, draft or similar instrument
inadvertently (except in the case of
daylight overdrafts) drawn against
insufficient funds in the ordinary course of
business, provided that such Indebtedness is
extinguished within five business days of
its incurrence; and
(18) other Indebtedness (which may be secured or
unsecured) which, together with any
obligations in respect of Sale and Leaseback
Transactions (other than Sale and Leaseback
Transactions permitted under Section 4.05(i)
through (iv)) does not exceed $50
million in the aggregate.
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The aggregate amounts of Indebtedness that the Company is permitted to incur
pursuant to clause (viii) above shall be reduced by the difference between (1)
the aggregate principal amount of any mortgages that the Company is deemed to
have entered into in connection with any Sale and Leaseback Transaction that the
Company is permitted to enter into under clause (i) of Section 4.05 and (2) the
aggregate principal amount of any Senior Indebtedness that is repaid with the
Net Proceeds of any Sale and Leaseback Transactions that are entered into within
twelve months of the acquisition, or completion of construction or
refurbishment, of the Property that is the subject of any such transaction.
d. Limitation on Liens.
i. The Company shall not, nor will it permit any of its
Subsidiaries to, create, incur, assume or permit to exist
any Lien on or with respect to any Property or assets of
the Company or any such Subsidiary or any interest therein
or any income or profits therefrom.
ii. Notwithstanding the foregoing, the Company and its
Subsidiaries may create, incur, assume or permit to exist
the following Liens:
(1) with respect to any particular series of
Securities issued hereunder, any Lien
existing as of the date of issuance of such
series of Securities;
(2) any Lien on all of the Company's or a
Subsidiary's properties and assets,
including without limitation, accounts
receivable, inventories, franchise
agreements, property, equipment, trademarks,
proprietary rights, leasehold interests,
cash and all other assets and the proceeds
thereof securing the Company's obligations
under the Secured Credit Facility, as to
which the Holders agree that if any such
Lien is invalidated, avoided or otherwise
deemed unenforceable with respect to any
collateral securing such obligations, any
payment that would be made to the Holders
from or attributable to the proceeds of such
collateral (but not any other payments)
shall nevertheless be paid to the lenders
under the Secured Credit Facility instead of
to the Holders until all indebtedness under
the Secured Credit Facility is paid in full;
(3) any Lien arising in the ordinary course of
business, other than in connection with
Indebtedness for borrowed money, such as (A)
Liens to secure payments of workers'
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compensation, unemployment insurance, old
age pensions or other social security or
retirement benefits, or to secure the
performance of bids, tenders, contracts
(other than for the payment of money) or to
secure public or statutory obligations of
the Company, or any Subsidiary, or to secure
surety bonds to which the Company or any
Subsidiary is a party and (B) materialmen's,
mechanics', workmen's, repairmen's,
warehousemen's, landlords', vendors' or
carriers' Liens created by law, or deposits
or pledges arising and continuing in the
ordinary course of business to obtain the
release of any such Liens;
(4) any Lien on the Company's or a Subsidiary's
accounts receivable, inventories, franchise
agreements, proprietary rights and related
assets and proceeds of any of the foregoing,
or deposit accounts, credits, balances with,
and money and securities in transit to, any
financial institution or any books and
records relating to any of the foregoing
incurred to secure Indebtedness permitted
under Section 4.03(b)(iii);
(5) with respect to any particular series of
Securities issued hereunder, any Lien on
Property acquired by the Company or any
Subsidiary after the date of issuance of
such series of Securities created solely to
secure Indebtedness incurred to finance such
acquisition or assumed in connection with
such acquisition, whether by acquisition of
stock, assets or otherwise (or any Lien
entered into in connection with Indebtedness
that is permitted under Section
4.03(b)(viii)), provided that in each case
such acquisition does not constitute a
Material Acquisition;
(6) any Lien on Property acquired by the Company
or any Subsidiary which constitutes a
Material Acquisition created solely to
secure Indebtedness incurred to finance such
Material Acquisition or assumed in
connection with such Material Acquisition,
provided that after giving effect to such
Indebtedness the Consolidated Interest
Coverage Ratio is greater than 2.0 to 1;
(7) any Lien on any asset of the Company or any
Subsidiary created solely to secure
Indebtedness incurred to finance the
refurbishment, improvement, construction or
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acquisition (whether by acquisition of
stock, assets or otherwise) of such asset
(or incurred within twelve months of any
such acquisition or the completion of such
refurbishment, improvement or construction)
or relating to Indebtedness assumed in
connection with such acquisition, provided
that such Lien secures Indebtedness
permitted under Section 4.03(b)(viii) ;
(8) any Lien created in connection with a
Capitalized Lease Obligation that the
Company or a Subsidiary is permitted to
enter into under the terms of this
Indenture, provided that such Capitalized
Lease Obligation relates to Property used in
the business of the Company or a Subsidiary;
(9) any Lien arising out of judgments or awards
against the Company or any Subsidiary with
respect to which the Company or such
Subsidiary shall in good faith be
prosecuting an appeal or proceedings for
review or Liens incurred by the Company or a
Subsidiary for the purpose of obtaining a
stay or discharge in the course of any legal
proceeding to which the Company or such
Subsidiary is a party;
(10) any Lien for taxes not yet subject to
penalties for nonpayment or contested in
good faith in accordance with Section 4.15
or minor survey exceptions, or minor
encumbrances, easements or reservations of,
or rights of others for, rights of way,
sewers, electric lines, telegraph and
telephone lines and other similar purposes,
or zoning or other restrictions as to the
use of real properties, which encumbrances,
easements, reservations, rights and
restrictions do not, in the aggregate, have
a material negative economic effect on the
Company or any Subsidiary or materially
impair the ability of the Company or any
Subsidiary to conduct its operations;
(11) any Lien extending, renewing or replacing
any Lien permitted by clause (i), (ii),
(iv), (v), (vi), (vii), (viii) or (xii) of
this Section 4.04; and
(12) any other Lien securing up to $50.0 million
of Indebtedness permitted by Section
4.03(b)(xviii).
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In the case of Liens permitted under clauses (i), (iv), (v), (vi), (vii), (viii)
and (xi), with respect to any particular series of Securities issued hereunder,
such Liens may relate solely to the Property (including any improvements
thereon) subject thereto as of the date of issuance of such series of Securities
or the date such Lien was incurred, as the case may be, and may secure the
payment only of the Indebtedness so secured as of such date.
e. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Subsidiary to, enter
into, assume, Guarantee or otherwise become liable with respect to any Sale and
Leaseback Transaction, provided that this Section 4.05 shall not prohibit: (i) a
Sale and Leaseback Transaction that, had such Sale and Leaseback Transaction
been structured as a mortgage rather than as a Sale and Leaseback Transaction,
the Company would have been permitted to enter into such transaction under
Sections 4.03 and 4.04(b)(vii), (ii) with respect to any particular series of
Securities issued hereunder, a Sale and Leaseback Transaction entered into prior
to the date of issuance of such series of Securities, (iii) a Sale and Leaseback
Transaction the proceeds of which are applied to repayment of Other Senior
Indebtedness, (iv) a Sale and Leaseback Transaction if within 90 days of
entering into such arrangement, the Company makes a pro rata offer or pro rata
offers to all Holders of any one or more series of Securities issued hereunder
as may be selected by the Company to repurchase such Securities at 100% of their
principal amount, plus accrued and unpaid interest through the date of
repurchase and in an aggregate amount equal to (x) the greater of the Net
Proceeds of the sale of the Property leased pursuant to such Sale and Leaseback
Transaction or the Fair Market Value of the Property so leased at the time of
entering into such Sale and Leaseback Transaction less (y) the amount of Net
Proceeds which are applied to repayment of Other Senior Indebtedness; and (v)
any other Sale and Leaseback Transaction of which the cash proceeds to the
Company do not exceed the difference between (x) $50.0 million and (y) the
amount of Indebtedness incurred pursuant to Section 4.03(b)(xviii).
f. Limitation on Asset Sales.
i. The Company shall not, and shall not permit any Subsidiary
to, consummate any Asset Sale unless (A) such sale is for
Fair Market Value and (B) at least 75% of the Net Proceeds
thereof received by the Company or such Subsidiary is in
the form of cash; provided, that for purposes of this
Section 4.06, securities received by the Company or any
Subsidiary from such transferee that are promptly
converted by the Company or such Subsidiary into cash
shall be deemed to be cash; and provided further, that
notwithstanding any other provision in this paragraph, (a)
the Company or any Subsidiary may consummate Asset Sales
for which it receives aggregate Net Proceeds from the
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applicable purchaser or purchasers in an amount not to
exceed $25,000,000 in connection with any and all such
Assets Sales without regard to the foregoing limitation on
receiving a specified percentage of the Net Proceeds in
cash and (b) to the extent that the Company has not
reinvested such Net Proceeds in Additional Assets or used
such Net Proceeds to repay Other Senior Indebtedness
within twelve months following the consummation of the
Asset Sale (or in the case of Net Proceeds in the form of
securities rather than cash, within twelve months after
such securities become cash), the Company shall either
apply such Net Proceeds (or any portion thereof) to the
repayment of Other Senior Indebtedness or apply such Net
Proceeds (or the remaining portion thereof) in accordance
with the following sentence. If no Other Senior
Indebtedness is outstanding at such time or the Company
does not apply any or applies only a portion of such Net
Proceeds to the repayment of Other Senior Indebtedness or
the application of such Net Proceeds results in the
payment of all outstanding Other Senior Indebtedness, then
such Net Proceeds or any remaining portion thereof, in
each case not so applied to the repayment of Other Senior
Indebtedness, shall be applied to a pro rata offer or pro
rata offers to all Holders of any one or more series of
Securities issued hereunder as may be selected by the
Company to repurchase such Securities at 100% of their
principal amount, plus accrued and unpaid interest through
the date of repurchase.
Notwithstanding the foregoing, in the event the Net Proceeds resulting
from any Asset Sale, after giving effect to any related repayment of Other
Senior Indebtedness, are less than $10,000,000, the application of such Net
Proceeds to a pro rata offer or pro rata offers to all Holders of any one or
more series of Securities issued hereunder as may be selected by the Company to
repurchase such Securities at 100% of their principal amount, plus accrued and
unpaid interest, may be deferred until such time as such Net Proceeds, plus the
aggregate amount of Net Proceeds resulting from any subsequent Asset Sale or
Asset Sales not otherwise reinvested in Additional Assets or applied to repay
Other Senior Indebtedness as required are at least equal to $10,000,000, at
which time the Company shall apply all such Net Proceeds to a pro rata offer or
pro rata offers to all Holders of any one or more series of Securities issued
hereunder as may be selected by the Company to repurchase such Securities at
100% of their principal amount, plus accrued and unpaid interest through the
date of repurchase.
ii. Pending application thereof in accordance with Section
4.06(a), the Company shall either apply the Net Proceeds
of any Asset Sale to repay temporarily Other Senior
Indebtedness or invest such Net Proceeds in Qualified
Investments.
g. Limitation on Investments.
The Company shall not, and shall not permit any of its Subsidiaries to,
make any Investment in (i) any Unrestricted Subsidiary or (ii) an Affiliate
(other than a Wholly Owned Subsidiary) that is not a Control Affiliate unless,
as determined at the date such Investment is made and after giving effect
thereto, (a) the Company could incur at least $1.00 of additional Indebtedness
under Section 4.03(a), and (b) there would not exist any Default. The Company
may not, and may not permit any Subsidiary or Unrestricted Subsidiary to, make
any Investment in any Control Affiliate other than in compliance with Section
4.02. The determination of whether the Company or any of its Subsidiaries may
make an Investment under this Section shall be made at the earliest of the date
such Investment is made, the date such Investment is committed to be made by the
Company or any of its Subsidiaries or, if such Investment is in respect of an
acquisition, the Transaction Date for such acquisition.
h. SEC Reports.
i. The Company shall file with the Trustee within 15 days
after it files them with the SEC copies of the annual
reports and of the information, documents and other
reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations
prescribe) which the Company files with the SEC pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"). The Company shall
continue to file with the SEC and the Trustee on the same
timely basis such reports, information and other documents
as the Company would be required to file with the SEC as
if the Company were subject to the requirements of such
Section 13 or 15(d) of the Exchange Act notwithstanding
that the Company may no longer be subject to Section 13 or
15(d) of the Exchange Act and that the Company would be
entitled not to file such reports, information and other
documents with the SEC. The Company also shall comply with
the other provisions of TIAss.314(a).
ii. So long as any of the Securities of any series remain
outstanding, the Company shall cause any annual report to
stockholders and any quarterly or other financial reports
furnished by it to stockholders, excluding internal
management reports and distributions to stockholders in
their capacity as directors or officers of the Company, to
be filed with the Trustee and mailed to the Holders at
their addresses appearing in the register of Securities of
each series maintained by the Registrar. If the Company is
not required to furnish annual or quarterly reports to its
stockholders pursuant to the Exchange Act, the Company
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shall cause its consolidated financial statements,
including any notes thereto, and a "Management's
Discussion and Analysis of Financial Condition and Results
of Operations", comparable to that which would have been
required to appear in annual or quarterly reports filed
under Section 13 or 15(d) of the Exchange Act to be so
filed with the Trustee and mailed to the Holders at their
addresses appearing in the register of Securities of each
series maintained by the Registrar within 90 days after
the end of each fiscal year and within 60 days after the
end of each of the Company's first three fiscal quarters
in each fiscal year.
i. Limitation on Payment Restrictions
Affecting Subsidiaries.
The Company shall not, and shall not permit any Subsidiary to, create
or otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction which encumbrance or restriction by its terms
expressly restricts the ability of such Subsidiary to (i) pay dividends or make
any other distributions on such Subsidiary's Capital Stock or pay any
Indebtedness owed to the Company or any Subsidiary, (ii) make any loans or
advances to the Company or any Subsidiary or (iii) transfer any of its Property
to the Company or any Subsidiary, other than, with respect to clauses (ii) and
(iii), encumbrances or restrictions contained in any agreement or instrument (a)
with respect to any particular series of Securities issued hereunder, relating
to any Indebtedness of the Company or any Subsidiary existing on the date of
issuance of such series of Securities; (b) with respect to any particular series
of Securities issued hereunder, relating to any Property acquired by the Company
or any of its Subsidiaries after the date of issuance of such series of
Securities, provided that such encumbrance or restriction relates only to the
Property which is acquired and, in the case of any encumbrance or restriction
that constitutes a Lien, the Company would be permitted to incur the Lien under
Section 4.04; (c) relating to (x) any industrial revenue or development bonds,
(y) any obligation of the Company or any Subsidiary incurred in the ordinary
course of business to pay the purchase price of Property acquired by the Company
or such Subsidiary, and (z) any lease of Property by the Company or such
Subsidiary in the ordinary course of business, provided that such encumbrance or
restriction relates only to the Property which is the subject of such industrial
revenue or development bond, such Property purchased or such Property leased and
any such lease, as the case may be; (d) relating to any Indebtedness of any
Subsidiary at the date of acquisition of such Subsidiary by the Company or any
Subsidiary of the Company, provided that such Indebtedness was not incurred in
connection with or in anticipation of such acquisition, and provided further
that the Company would be permitted to incur any Lien securing such Indebtedness
under Section 4.04; and (e) replacing or refinancing agreements or instruments
referred to in clauses (a), (b) and (c), provided that the provisions relating
to such encumbrance or restriction contained in any such replacement or
refinancing agreement or instrument are no more restrictive than the provisions
relating to such encumbrance or restriction contained in such original agreement
or instrument.
j. Limitation on Issuance of Indebtedness and Preferred Stock by
Subsidiaries.
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The Company shall not permit any Subsidiary to create, incur, assume or
Guarantee any Indebtedness or issue any preferred or preference stock, except
for (i) with respect to any particular series of Securities issued hereunder,
preferred stock outstanding on the date of issuance of such series of
Securities, (ii) Indebtedness permitted under Section 4.03, (iii) preferred
stock issued to and held by the Company or a Wholly Owned Subsidiary (but only
so long as held or owned by the Company or a Wholly Owned Subsidiary) and (iv)
preferred stock issued by a Person prior to the time (A) such Person becomes a
Subsidiary, (B) such Person merges with or into a Subsidiary or (C) a Subsidiary
merges with or into such Person, provided that such preferred stock was not
issued or incurred by such Person in anticipation of the type of transaction
contemplated by subclauses (A), (B) or (C).
k. Transactions with Affiliates.
With respect to any particular series of Securities issued hereunder,
the Company shall not, and shall not permit any Subsidiary to, following the
date of issuance of such series of Securities, except for the Management
Agreement, enter into any transaction (including, without limitation, the
purchase, sale or exchange of Property, the making of any Investment, the giving
of any Guarantee or the rendering of any service) with any Affiliate (other than
the Company or a Subsidiary) unless (i) the Board of Directors determines, in
its reasonable good faith judgment, that such transaction is in the best
interests of the Company or such Subsidiary based on full disclosure of all
relevant facts and circumstances and (ii) such transaction is on terms no less
favorable to the Company or such Subsidiary than those that could be obtained in
a comparable arms' length transaction with an entity that is not an Affiliate.
l. Restrictions on Becoming an Investment Company.
The Company shall not become an investment company within the meaning
of the Investment Company Act of 1940 as such statute and the regulations
thereunder and any successor statute or regulations thereto may from time to
time be in effect.
m. Continued Existence and Rights.
Subject to Article 5, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence as
a corporation, and its rights and franchises.
n. Maintenance of Properties and Other Matters.
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The Company shall, and shall cause each of its Subsidiaries to,
maintain its Properties in good working order and condition and make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto; provided, however, that nothing in this Section 4.14 shall
prevent the Company or any of its Subsidiaries from discontinuing the operation
and maintenance of any of its Properties, if such discontinuance is, in the
judgment of the Company or the Subsidiary, as the case may be, desirable in the
conduct of its respective business and not disadvantageous in any material
respect to the Holders.
The Company will insure and keep insured, and will cause each
Subsidiary to insure and keep insured, with financially sound and reputable
insurers, so much of their respective Properties and in such amounts as is
usually and customarily insured by companies engaged in a similar business with
respect to Properties of a similar character against loss by fire and the
extended coverage perils. None of the Company or any of its Subsidiaries will
maintain a system of self insurance in lieu of or in combination with the
foregoing, provided that deductibles under the insurance policy or policies of
the Company and its Subsidiaries shall not be considered to be self insurance as
long as such deductibles accord with financially sound and approved practices of
companies owning or operating Properties of a similar character and maintaining
similar insurance coverage. The Trustee shall not be required to see that such
insurance is effected or maintained.
The Company will keep, and will cause each Subsidiary to keep, proper
books of record and account in which full and correct entries will be made of
all its business transactions, and will reflect in its financial statements
adequate accruals and appropriations to reserves. The Company shall cause its
books of record and account and those of each of its Subsidiaries to be
examined, either on a consolidated or individual basis, by one or more firms of
independent public accountants not less frequently than annually and shall not
make any change in the accounting principles applied to its financial statements
not concurred in by such firm or firms. The Company shall prepare its financial
statements in accordance with generally accepted accounting principles.
The Company shall, and shall cause each of its Subsidiaries to, comply
with all statutes, laws, ordinances, or government rules and regulations to
which it is subject and to obtain any licenses, permits, franchises or other
governmental authorizations necessary to the ownership or operation of its
Properties or to the conduct of its business, if noncompliance or failure to
obtain materially adversely affects or, so far as the Company can at the time
foresee, is reasonably likely to materially adversely affect the business,
earnings, Properties or condition, financial or other, of the Company and its
Subsidiaries taken as a whole.
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o. Taxes and Claims.
The Company shall, and shall cause each of its Subsidiaries to, pay
(or, if appropriate, withhold and pay over) prior to delinquency:
(1) all taxes, assessments and governmental charges or levies
imposed upon it or its Property (or required by it to
withhold and pay over), and
(2) all claims or demands of materialmen, mechanics, carriers,
warehousemen, landlords and other like Persons which if
unpaid might result in the creation of a Lien upon its
Properties;
provided that items of the foregoing description need not be paid while being
contested in good faith (and by appropriate proceedings in the opinion of the
Company's independent counsel in any case involving more than $500,000); and
provided further that adequate book reserves (in the opinion of the Company's
independent accountants) have been established with respect thereto; and
provided further that the owning company's title to, and its right to use, its
Property is not materially adversely affected thereby.
p. Usury Laws.
The Company will not voluntarily claim and will actively resist any
attempts to claim the benefit of any usury laws against the Holders of the
Securities of any series issued pursuant to this Indenture.
q. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or interest on the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal or interest so becoming due until such sum shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Securities, it will, on or prior to each date for the payment
of the principal of or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal or interest so becoming due,
such sum to be held in trust for the benefit of the
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Persons entitled to such payments; and, unless such Paying Agent is the Trustee,
the Company will promptly notify the Trustee of its action or failure so to act.
For the purpose of obtaining the satisfaction and discharge of this
Indenture or for any other purpose, the Company may at any time pay, or direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by the Company or any Paying Agent to the Trustee, the Company
or such Paying Agent, as the case may be, shall be released from all further
liability with respect to such money.
r. Compliance Certificate.
The Company shall deliver to the Trustee for each series of Securities
issued hereunder, within 120 days after the end of each fiscal year of the
Company, an Officers' Certificate, complying with Section 314(a)(4) of the TIA,
stating that a review of the activities of the Company and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the
signing Officers with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture and such
series of Securities, and further stating, as to each such Officer signing such
certificate, that to the best of his knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
such series of Securities and is not in default in the performance or observance
of any of the terms, provisions and conditions hereof or thereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Defaults of which he may have knowledge, the status of such Default or
Event of Default and what action the Company is taking or proposes to take with
respect thereto).
The Company will, so long as any of the Securities of any series are
outstanding, deliver to the Trustee for each series of Securities issued
hereunder, forthwith upon becoming aware of any Default, Event of Default or
default in the performance of any covenant, agreement or condition contained in
this Indenture or such series of Securities, an Officers' Certificate specifying
such Default or Event of Default the status of such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
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5.
SUCCESSORS; CHANGE OF CONTROL; OPTIONAL PREPAYMENT
a. When Company May Merge, etc.; Change of Control; Holders'
Right of Optional Prepayment.
i. The Company shall not consolidate or merge with or into,
or transfer, sell or lease all or substantially all of its
Property to, any Person (except a Wholly Owned Subsidiary
of the Company which is a United States corporation with a
positive consolidated net worth, provided that following
and after giving effect to such consolidation, merger,
transfer, sale or lease there exists no Default or Event
of Default and such Wholly Owned Subsidiary
unconditionally assumes by supplemental indenture all the
Company's obligations under this Indenture) unless:
(1) (A) the Company is the Surviving Corporation in
the case of a consolidation or merger and its
Voting Stock is not changed into or exchanged for
cash, securities or other Property of another
corporation or (B) the corporation formed by such
consolidation or merger or to which such
transfer, sale or lease occurs is a United States
corporation and such corporation unconditionally
assumes by supplemental indenture all of the
obligations of the Company under this Indenture,
and
(2) immediately after giving effect to such
transaction no Default or Event of Default
exists.
If immediately after and giving effect to any such consolidation, merger,
transfer, sale or lease permitted under the foregoing provision (other than a
consolidation or merger of the Company with, or a transfer, sale or lease by the
Company of all or substantially all of its Property to, a Wholly Owned
Subsidiary of the Company which is a United States corporation with a positive
consolidated net worth, as permitted under Section 5.01(a) above) and any
financings or other transactions in connection therewith the Consolidated
Interest Coverage Ratio of the Surviving Corporation is less than 2.0 to 1, each
Holder of any series of Securities issued pursuant to this Indenture shall have
the right, pursuant to the procedures of Section 5.01(c), to require the
Surviving Corporation to repurchase any Securities held by such Holder, in whole
but not in part, at a purchase price in cash equal to 101% of its principal
amount plus accrued interest, promptly following the consummation of any such
merger, consolidation, transfer, sale or lease and the Indebtedness of the
Surviving Corporation, after giving effect to such transaction and any financing
or other transactions in connection therewith, shall not be deemed to have been
incurred in violation of any covenant of this Indenture.
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ii. Upon the occurrence of a Change of Control (the "Change of
Control Date") with respect to the Company, each Holder of
any series of Securities issued pursuant to this Indenture
shall have the right, pursuant to the procedures of
Section 5.01(c), to require the Company to repurchase any
Securities held by such Holder at a purchase price in cash
equal to 101% of the principal amount of such Securities
plus accrued interest through the date of repurchase.
iii. Not less than 20 nor more than 60 business days prior to
the consummation of a merger consolidation, transfer, sale
or lease that would require the Company to repurchase the
Securities of any series issued pursuant to this Indenture
pursuant to Section 5.01(a) and not more than 45 business
days following the occurrence of any other event
constituting a Change of Control, the Company shall give
Holders notice of such right of repurchase, mailed by
first-class mail to the Holders' last addresses as they
appear upon the register. Such notice shall state: (i)
that Holders are entitled to have their Securities
repurchased in whole but not in part at 101% of their
principal amount plus accrued interest through the date of
repurchase pursuant to this Section 5.01; (ii) in the case
of Section 5.01(b), that a Change of Control has occurred,
or in the case of Section 5.01(a), the proposed date of
the consummation of the merger, consolidation, transfer,
sale or lease; (iii) that Holders will be entitled to
tender their Securities for repurchase, specifying the
purchase price and the date of repurchase (the "Repurchase
Date") (which, in the case of Section 5.01(a), shall not
be later than the consummation date of the merger,
consolidation, transfer, sale or lease and, in the case of
Section 5.01(b) shall be no earlier than 30 days and no
later than 60 days after the date such notice is mailed)
and that Holders will be entitled to tender their
Securities for repurchase until five business days prior
to the Repurchase Date, (iv) the name and address of the
Paying Agent, (v) that the Securities must be tendered to
the Paying Agent by five business days prior to the
Repurchase Date to collect the principal and accrued
interest thereon, (vi) that any Security not tendered by
five business days prior to the Repurchase Date will
continue to accrue interest at the applicable rate borne
by the Security, (vii) that any Security accepted for
repurchase will cease to accrue interest after the
Repurchase Date, (viii) that Holders electing to have a
Security repurchased will be required to surrender the
Security, with the form entitled "Option of Holder to
Elect Repurchase" on the reverse of the Security
completed, to the Paying
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Agent at the address specified in the notice on or prior
to the close of business on the fifth business day
preceding the Repurchase Date, (ix) that Holders will be
entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the
fifth business day preceding the Repayment Date, a
telegram, telex, facsimile transmission or letter setting
forth the name of the Holder, the principal amount of
Securities the Holder delivered for repurchase, the
certificate number(s) of the Securities the Holder
delivered for repurchase and a statement that such Holder
is withdrawing his election to have such Securities
repurchased, (i) that Holders electing to have their
Securities repurchased must tender all Securities which
they hold and (xi) any other information necessary to
enable Holder to tender Securities and have such
Securities repurchased pursuant to this Section.
Notwithstanding that the Company shall have given any such
notice pursuant to this Section 5.01(c), the Company shall
have no obligation to consummate a merger, consolidation,
transfer, sale or lease that is the subject of any such
notice, provided that the Company will mail a notice to
Holders, stating that the proposed merger, consolidation,
transfer, sale or lease was not consummated and that
Holders will not have the right to require the Company to
prepay their Securities, not later than two business days
after the Company determines that any proposed merger,
consolidation, transfer, sale or lease will not be
consummated, and the Company will promptly return any
Securities tendered for repurchase to their respective
Holders.
The Company shall deliver to the Trustee, contemporaneously with the
mailing of the notice specified in the preceding paragraph informing Holders of
their right to tender their Securities for repurchase, (i) an Officers'
Certificate to the foregoing effect stating that the Holders are entitled to
have their Securities repurchased and (ii) an Opinion of Counsel stating that
the proposed transaction complies with this Indenture and that all conditions
precedent to the consummation of the transaction under this Indenture have been
met. The Company shall also deliver to the Trustee an Officers' Certificate and
an Opinion of Counsel in connection with any Supplemental Indenture upon the
execution thereof, as specified in Section 9.06.
The Surviving Corporation shall be the successor Company, but the
predecessor Company in the case of a transfer, sale or lease shall not be
released from the obligation to pay the principal of and interest on the
Securities.
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6.
DEFAULTS AND REMEDIES
a. Events of Default.
"Event of Default," whenever used herein with respect to Securities of
any series, means any one of the following events:
(a) the Company defaults in the payment of interest
on any Security of that series when the same
becomes due and payable and the Default continues
for a period of 30 days after such interest
becomes due and payable;
(b) the Company defaults in the payment of the
principal of or any premium on any Security of
that series when the same becomes due and payable
at maturity, upon redemption, or upon repurchase
pursuant to Section 5.01 or otherwise;
(c) the Company fails to comply with any of its other
agreements or covenants in or provisions of this
Indenture (other than an agreement or covenant a
default in whose performance is elsewhere in this
Section specifically dealt with or which has
expressly been included in this Indenture solely
for the benefit of series of Securities other
than that series), and the Default continues for
30 days after the Company has been given notice
of the Default by the Trustee or the holders of
25% in principal amount of the Outstanding
Securities of that series;
(d) a default on other Indebtedness of the Company or
any Subsidiary (including a default on Securities
other than Securities of such series), which
Indebtedness has an outstanding principal amount
of more than $1,000,000
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individually or in the aggregate if such
Indebtedness has attained final maturity or if
the holders of such Indebtedness have accelerated
payment thereof under the terms of the instrument
under which such Indebtedness is or may be
outstanding and, in each case, it remains unpaid;
(e) one or more judgments or decrees entered against
the Company or any Subsidiary involving a
liability (not paid by insurance) of $1,000,000
or more in the case of any one such judgment or
decree or $1,000,000 or more in the aggregate for
all such judgments and decrees for the Company
and all its Subsidiaries and all such judgments
or decrees have not been vacated, discharged or
stayed or bonded pending appeal within 60 days
from the entry thereof;
(f) the Company or any Subsidiary pursuant to or
within the meaning of Title 11 of the United
States Code or any similar Federal or state law
for the relief of debtors (collectively,
"Bankruptcy Law"):
(i)commences a voluntary case in bankruptcy or any
other action or proceeding for any other relief
under any law affecting creditors' rights that is
similar to a Bankruptcy Law;
(ii) consents by answer or otherwise to the commencement
against it of an involuntary case;
(iii) seeks or consents to the appointment of a receiver,
trustee, assignee, liquidator, custodian or similar official
(collectively, a "Custodian") 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 unable to pay its debts as the same become
due; or
(g) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Subsidiary in an
involuntary case proceeding;
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(ii) appoints a Custodian of the Company or any Subsidiary or
for all or substantially all of its Property; or
(iii) orders the liquidation of the Company or any Subsidiary,
and in each case the order or decree remains unstayed and in effect for
60 days, or any dismissal, stay, rescission or termination ceases to
remain in effect; or
(h) any other Event of Default provided with respect
to Securities of that series.
b. Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses (6) and (7) of Section 6.01) with respect to Securities of any series at
the time Outstanding occurs and is continuing, the Trustee by notice in writing
to the Company, or the Holders of at least 25% in principal amount of the
Outstanding Securities of that series by notice in writing to the Company and
the Trustee, may declare the principal of and accrued interest on all the
Securities of that series to be due and payable. Upon such declaration, the
principal and interest shall be due and payable immediately without any
presentment, demand, protest or notice to the Company, all of which the Company
expressly waives. If an Event of Default specified in clauses (6) or (7) of
Section 6.01 occurs, the principal of and accrued interest on all the Securities
shall ipso facto become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any or all series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series by notice to the Trustee may rescind an
acceleration and its consequences (i) if the rescission would not conflict with
any judgment or decree, (ii) if all existing Events of Default have been cured
or waived except nonpayment of principal or interest that has become due solely
because of the acceleration, (iii) to the extent the payment of such interest is
lawful, interest on overdue installments of interest and overdue principal,
which has become due otherwise than by such declaration of acceleration, has
been paid, and (iv) in the event of the cure or waiver of a Default under clause
(4) of Section 6.01, the Trustee shall have received an Officers' Certificate
and an Opinion of Counsel that such Default has been cured or waived.
c. Other Remedies.
If an Event of Default with respect to Securities of any series occurs
and is
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continuing, the Trustee may pursue any available remedy by an action at law,
suit in equity or other appropriate proceeding to collect the payment of
principal of or interest on such series of Securities or to enforce the
performance of any provision of this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities of such series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default or a Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in such Event of
Default or a Default. All remedies are cumulative to the extent permitted by
law.
d. Waiver of Defaults.
Subject to Section 6.07, the Holders of at least a majority in
principal amount of the Outstanding Securities of any series by notice to the
Trustee may waive any existing Default or Event of Default with respect to such
series and its consequences except a continuing Default or Event of Default in
the payment of the principal of or interest on any Security of that series.
e. Control by Majority.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with law or this Indenture, is unduly prejudicial to the rights
of other Holders of Outstanding Securities of that series or would subject the
Trustee to personal liability. The Company may, but shall not be obligated to,
pursuant to the procedures of Section 9.04(b), fix a record date for the purpose
of determining the Holders of Outstanding Securities of any series entitled to
vote on the direction of any such proceeding.
f. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute a proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) the Holder gives to the Trustee written notice of
a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of at least 25% in principal amount
of the Outstanding Securities of that series make
a written
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request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer 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 the receipt of the request
and the offer of indemnity; and
(e) during such 60 day period the Holders of a
majority in principal amount of the Outstanding
Securities of that series do not give the Trustee
a direction inconsistent with the request;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
g. Rights of Holders to Receive Payment.
Subject to the provisions of Section 6.02, notwithstanding any other
provision of this Indenture, the right of any Holder of any Security to receive
payment of principal of and interest on such Security on or after the respective
due dates expressed in such Security, or to bring suit for the enforcement of
any such payment on or after such respective dates, shall not be impaired or
affected without the consent of the Holder.
h. Collection Suit by Trustee.
If an Event of Default with respect to Securities of any series
specified in Section 6.01(l) or (2) occurs and is continuing, the Trustee may
recover, in any proceeding that it deems, in its sole discretion, most effective
to protect the interests of the Holders of the Securities of such series,
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal and interest remaining unpaid on such
Securities.
i. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Holders allowed in any judicial proceedings relative to the Company, its
creditors or its Property.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder
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thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
j. Priorities.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money or property in the following order:
First: To the Trustee for amounts due under Section 7.07;
Second: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and interest,
respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders under this Section.
k. 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 to
be taken 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 and disbursements, 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 6.06, or a suit by Holders of
more than 10% in principal amount of the Outstanding Securities of any series.
7.
TRUSTEE
a. Duties of Trustee.
i. If an Event of Default with respect to Securities of
any series at the time Outstanding has occurred and
is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his own
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affairs.
ii. Except during the continuance of an Event of Default:
(a) the Trustee need perform only those
duties that are specifically set forth
in this Indenture and no others and no
implied covenants or obligations shall
be read into this Indenture against the
Trustee; and
(b) the Trustee may conclusively rely, as to
the truth of the statements and the
correctness of the opinions expressed
therein, in the absence of bad faith on
its part, upon certificates or opinions
furnished to the Trustee and conforming
to the requirements of this Indenture.
The Trustee, however, shall examine the
certificates and opinions to determine
whether or not they conform to the
requirements of this Indenture but need
not verify the accuracy of the contents
thereof.
iii. The Trustee may not be relieved from liability for
its own gross negligent action, its own grossly
negligent failure to act, or its own willful
misconduct, except that:
(a) this paragraph does not limit the effect
of paragraph (b) of this Section;
(b) the Trustee shall not be liable for any
error of judgment made in good faith by
a Trust Officer, unless it is proved
that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with
respect to any action it takes or omits
to take in good faith in accordance with
a direction received by it pursuant to
Section 6.05.
iv. Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a),
(b) and (c) of this Section.
v. The Trustee may refuse to perform any duty or
exercise any right or power unless it receives
indemnity satisfactory to it against any loss,
liability or expense.
vi. The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree
with the Company. Money held in trust by the Trustee
need not be segregated from other funds, except to
the extent required by law.
vii. No provision of this Indenture shall require the
Trustee to expend or risk any of its own funds or
incur any liability.
viii. The permissive right of the Trustee to act hereunder
shall not be
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construed as a duty.
b. Rights of Trustee.
i. The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate
any fact or matter stated in the document. The
Trustee may conclusively rely as to the identity and
addresses of Holders and other matters contained
therein on the register of the Securities maintained
by the Registrar pursuant to Section 3.04 and shall
not be affected by notice to the contrary.
ii. Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate and an Opinion
of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in
reliance on such Certificate or opinion or both. The
Trustee may consult with counsel, including counsel
employed by the Trustee, and the oral or written
advice of such counsel or any opinion of counsel
shall be full and complete authorization and
protection in respect of any action taken, suffered
or omitted to be taken by it hereunder in good faith
and reliance thereon.
iii. The Trustee may act through agents and shall not be
responsible for the misconduct or gross negligence of
any agent appointed with due care.
iv. The Trustee shall not be liable for any action it
takes or omits to take in good faith which it
believes to be authorized or within its rights or
powers.
c. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate with the same rights it would have as if it were not Trustee. Any
Agent may do the same with like rights. The Trustee, however, is subject to
Sections 7.10 and 7.11.
d. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, or any money paid to the Company or
upon the Company's direction under any provision hereof, 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 in the
Securities other than its authentication or for any statement of the Company in
the Indenture.
e. Notice of Defaults.
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If a Default or Event of Default occurs and is continuing hereunder
with respect to Securities of any series, and if such Default or Event of
Default is known to a Trust Officer of the Trustee, the Trustee shall mail the
Holders of Securities of such series a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a Default or Event of
Default in payment on any Security of any series, the Trustee may withhold
notice if and so long as a trust committee of Trust Officers of the Trustee in
good faith determines that withholding the notice is in the interest of Holders
of Securities of such series.
f. Reports by Trustee to Holders.
Within 60 days after each May 15, commencing May 15, 2000, following
the date of this Indenture, the Trustee shall mail to Holders and the Company a
brief report dated as of such May 15 that complies with TIA ss. 313(a). The
Trustee shall also comply with TIA ss. 313(b)(2) and transmit all reports in
accordance with TIA ss. 313(c).
A copy of each such report shall be filed, at the time of its mailing
to Holders, with the SEC and each stock exchange, if any, on which any
Securities are listed. The Company shall notify the Trustee when any Securities
are listed on any stock exchange.
g. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services as agreed to in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable outofpocket expenses incurred by it. Such expenses shall include the
reasonable compensation and outofpocket expenses of the Trustee's agents and
counsel.
The Company shall defend and indemnify the Trustee against any loss,
liability or expense incurred by it in connection with its services hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder, except as set forth in the next paragraph. The Trustee shall
notify the Company promptly of any claim for which it may seek indemnity.
The Company need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee through gross negligence, bad
faith or willfull misconduct.
The Trustee may have separate counsel, and the Company shall pay the
reasonable fees and expenses of such counsel.
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To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or Property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities. Such lien shall survive the satisfaction and
discharge of this Indenture or any other termination under any Bankruptcy Law.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, such expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
h. 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 by so notifying the Company. The Holders of a
majority in principal amount of the Outstanding Securities of any series may
remove the Trustee with respect to the Securities of such series by so notifying
the Trustee and the Company. The Company may remove the Trustee with respect to
all Securities if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee
or its Property; or
(d) the Trustee becomes incapable of acting.
If the Trustee with respect to the Securities of one or more or all
such series 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
with respect to the Securities of such series. Within one year after the
successor Trustee takes office (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series), the Holders of a majority in principal
amount of the Outstanding Securities of such series may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any series
does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the
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Company or the Holders of at least 10% in principal amount of the Outstanding
Securities of such series may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
If the Trustee with respect to the Securities of any series fails to
comply with Section 7.10, any Holder of Securities of such series may petition
any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee with respect to the Securities of such
series.
In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee. Upon the written
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. The successor
Trustee shall mail a notice of its succession to Holders of all Securities.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee
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shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates. Upon the written request of the Company or any
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and duties of the retiring Trustee with respect to the Securities
of that or those series and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates. The successor Trustee shall mail a notice of
its succession to Holders of those series of Securities in respect of which it
acts as Trustee.
Notwithstanding the replacement of the Trustee with respect to the
Securities of one or more series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring Trustee in connection with the rights and duties hereunder prior to
such replacement.
i. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
j. Eligibility; Disqualification.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be a Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that
satisfies the requirements of TIA ss. 310(a), and has a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. Neither the Company nor any Person directly or indirectly
controlling, controlled by, or under common control with the Company shall serve
as trustee. The Trustee is subject to TIA ss. 310(b).
k. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
l. Authenticating Agent.
Each authenticating agent appointed by the Trustee with respect to one
or more series of Securities pursuant to Section 3.03 (an "Authenticating
Agent") shall at all times be a
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corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia, authorized under such laws to act
as Authenticating Agent, having a combined capital and surplus of not less than
$5,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Company, the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 7.12, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment to all Holders of the Securities with respect
to which such Authenticating Agent will serve. Any successor Authenticating
Agent, upon acceptance of its appointment hereunder, shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under Section 3.03 and this Section
7.12 and the Trustee shall be entitled to be reimbursed for any such payments
made by it.
If an appointment with respect to one or more series is made pursuant
to Section 3.03 or this Section 7.12, the Securities of such series may have
endorsed thereon, in addition
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to the Trustee's certificate of authentication, an alternate certificate of
authentication in the following form:
"This is one of the Securities of the series designated therein
referred to in the withinmentioned Indenture.
Dated: ______________ IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By: [__________________________], as
Authenticating Agent
By: [__________________________], as
Authorized Signatory"
8.
DISCHARGE OF INDENTURE
a. Termination of Company's Obligations.
The Company may terminate its obligations under this Indenture at any
time by delivering all outstanding Securities of every series to the Trustee for
each such series for cancellation. The Company, at its option, may elect with
respect to any series of Securities issued hereunder, upon compliance with the
conditions set forth in this Article 8, (i) to be Discharged (as defined herein)
from any and all obligations with respect to such series of Securities (except
for certain obligations of the Company to register the transfer or exchange of
the Securities, replace stolen, lost or mutilated Securities, maintain paying
agencies, hold moneys for payment in trust and compensate and indemnify the
Trustee as provided in Section 7.07 of this Indenture) or (ii) to be released
from its obligation to comply with the restrictive covenants in Sections 4.02,
4.03, 4.04, 4.05, 4.06, 4.07, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15 and 5.01 of
this Indenture, in each case if the Company deposits with the Trustee for such
series of Securities, in trust, money or U.S. Government Obligations which,
through the payment of interest thereon and principal thereof in accordance with
their terms, will provide money in an amount sufficient to pay all the principal
of and interest on the Securities of such series on the dates such payments are
due in accordance with the terms of the Securities of such series. To exercise
any such option, the Company shall deliver to the Trustee for such series of
Securities (a) an Opinion of Counsel to the effect that the deposit and related
defeasance would not cause the holders of the Securities of such series to
recognize income, gain or loss for federal income tax purposes and, in the case
of a Discharge pursuant to clause (i) above, accompanied by a ruling to such
effect received from or published by the United
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States Internal Revenue Service and (b) an Officers' Certificate and an Opinion
of Counsel to the effect that the Company has complied with all conditions
precedent to the defeasance.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee for such
series of Securities, at the request and the expense of the Company, shall
execute proper instruments acknowledging the same), except (A) the rights of the
Holders of Securities of such series to receive, from the trust fund described
above, payment of the principal of and the interest on the Securities of such
series when such payments are due, (B) the Company's obligations with respect to
the Securities under Sections 3.04, 3.05, 3.06, 3.07, 3.08, 4.17, 7.07, 7.08 and
8.04 and (C) the rights, powers, trusts, duties and immunities of the Trustee
with respect to such series of Securities hereunder.
"U.S. Government Obligations" means direct obligations of, and
obligations guaranteed by, the United States of America for the payment of which
the full faith and credit of the United States of America is pledged.
b. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01 with respect to any series of
Securities. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal and interest on the Securities of such
series.
c. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
written request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have come due; provided, however, that the Trustee or such Paying Agent, shall,
upon the written request and at the expense of the Company, cause to be
published once in a newspaper of general circulation in The City of New York or
mailed to each such Holder, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to
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the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person.
d. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to the Securities of any series in
accordance with Sections 8.01 and 8.02 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities of such series shall be
revived and reinstated as though no deposit had occurred pursuant to Section
8.01 until such time as the Trustee or Paying Agent is permitted to apply such
money or U.S. Government Obligations in accordance with Section 8.01; provided,
however, that if the Company has made any payment of interest on or principal of
any such Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive
such payment from the money or U.S. Government Obligations held by the Trustee
or Paying Agent.
9.
AMENDMENTS
a. Without Consent of Holders.
The Company, when duly authorized by resolution of its Board of
Directors, and the Trustee may amend this Indenture or the Securities without
the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency
with any other provision herein;
(b) to comply with Section 5.01;
(c) to make any change that does not adversely affect
the legal rights hereunder of any Holder;
(d) to comply with the requirements of the SEC in
order to effect or maintain the qualification of
this Indenture under the TIA, as contemplated by
Section 11.01 or otherwise;
(e) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to
permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as
to principal, and with or without interest
coupons, or to permit or facilitate the issuance
of Securities in uncertificated form;
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(f) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or
more series of Securities, provided that any such
addition, change or elimination (A) shall neither
(i) apply to any Security of any series created
prior to the execution of such supplemental
indenture and entitled to the benefit of such
provision nor (ii) modify the rights of the
Holder of any such Security with respect to such
provision or (B) shall become effective only when
there is no such Security Outstanding;
(g) to provide for the appointment of a successor
Trustee with respect to the Securities of one or
more (but not all) series of Securities issued
hereunder, as provided in Section 7.08 hereof; or
(h) to establish the form or terms of Securities of
any series as permitted by Sections 2.01 and
3.01.
After an amendment under this Section becomes effective, the Company
shall mail to Holders of all series of Securitie s affected by such amendment a
notice briefly describing the amendment.
b. With Consent of Holders.
The Company, when duly authorized by resolution of its Board of
Directors, and the Trustee may amend this Indenture with the written consent of
the Holders of at least a majority in principal amount of the Outstanding
Securities of each series affected by such amendment. However, without the
consent of the Holder of each Outstanding Security affected thereby, an
amendment under this Section may not:
(a) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent
of whose Holders is required for any such
amendment;
(b) reduce the rate of or change the time for payment
of interest, including defaulted interest, on any
Security;
(c) reduce the principal of or change the fixed
maturity of any Security, or change the date on
which any Security may be subject to redemption
or reduce Redemption Price therefor;
(d) make any Security payable in currency other than
that stated in the Security;
(e) make any change in Section 6.04 or 6.07 or this
Section 9.02;
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(f) make any change in the ranking of the Securities
with respect to any other obligation of the
Company in a way that adversely affects the
rights of any Holder; or
(g) waive a Default in the payment of the principal
of, and interest on, any Security.
After an amendment under this Section becomes effective, the Company
shall mail to Holders of all series of Securities affected by such amendment a
notice briefly describing the amendment.
c. Compliance with Trust Indenture Act.
Every amendment to this Indenture shall be set forth in a supplemental
indenture that complies with the TIA as then in effect.
d. Revocation and Effect of Consents.
i. Until an amendment or waiver becomes effective, a consent
to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the
consent is not made on any Security. However, any such
Holder or subsequent Holder may revoke the consent as to
his Security or portion of a Security if the Trustee
receives written notice of revocation before the date on
which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal
amount of each series of Outstanding Securities affected
by such amendment or waiver have consented to such
amendment or waiver. An amendment or waiver becomes
effective upon receipt by the Trustee of such Officers'
Certificate and the written consents from the Holders of
the requisite percentage in principal amount of each
series of Outstanding Securities affected by such
amendment or waiver.
ii. The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders of
each series of Securities entitled to consent to any
amendment or waiver, which record date shall be at least 5
business days prior to the first solicitation of such
consent. If a record date is fixed, then notwithstanding
the second and third sentence of paragraph (a) of this
Section 9.04, those persons who were Holders at such
record date (or their duly designated proxies), and only
those persons, shall be entitled to consent to such
amendment or waiver or to revoke any consent previously
given, whether or not such persons
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continue to be Holders after such record date. No such
consent shall be valid or effective for more than 120 days
after such record date.
iii. After an amendment or waiver becomes effective, it shall
bind every Holder.
e. Notation on or Exchange of Securities.
Upon the Company's request, the Trustee shall place an appropriate
notation (to be provided by the Company and in form and substance satisfactory
to the Trustee) about an amendment or waiver on any Security affected by such
amendment or waiver thereafter authenticated. The Company in exchange for all
Securities affected by such amendment or waiver may issue and the Trustee shall
authenticate new Securities that reflect the amendment or waiver.
f. Trustee Protected.
The Trustee shall sign all supplemental indentures, except that the
Trustee need not sign any supplemental indenture that adversely affects its
rights. In signing or refusing to sign such amendment or Supplemental Indenture,
the Trustee shall be entitled to receive and, subject to Section 7.01, shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that such amendment or Supplemental Indenture is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
that all conditions precedent to the execution thereof have been met, that it
will be valid and binding upon the Company in accordance with its terms and
that, after the execution thereof, the Company will not be in Default and no
Event of Default will have occurred and be continuing with respect to any series
of Securities affected by such amendment or supplemental indenture.
10.
REDEMPTIONS
a. Election to Redeem; Notice to Trustee.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable, in whole at any time or in part from time to time,
in accordance with their terms and (except as otherwise specified for such
Securities as contemplated by Section 3.01) in accordance with this Article. In
order to effect any such redemption, the Company shall notify the Trustee of the
Redemption Date and the principal amount of Securities to be redeemed and it
shall deliver to the Trustee an Officers' Certificate certifying resolutions of
the Board of Directors authorizing the redemption and an Opinion of Counsel with
respect to the due authorization of such redemption and that such redemption is
being made in accordance with this Indenture and the Securities.
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The Company shall give such notice provided for in this Section at
least 30 days but not more than 45 days before the Redemption Date or at such
other date as shall be satisfactory to the Trustee.
b. Selection of the Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
Trustee or the Registrar for the Securities, pro rata or by lot, or by any
manner that is acceptable to the Trustee or Registrar, as the case may be, shall
select, subject to the remainder of this Section, the particular Securities to
be redeemed. The Trustee shall make the selection not more than 60 days and not
less than 30 days before each Redemption Date from Outstanding Securities of
such series not previously called for redemption. The Trustee may select for
redemption portions of the principal of Securities of such series that have
denominations larger than $1,000. Securities and portions of them it selects
shall be in amounts of $100 or integral multiples of $100. Provisions of this
Indenture that apply to Securities called for redemption shall also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of Securities to be called for
redemption.
c. Notice of Redemption.
At least 15 but not more than 45 days before a Redemption Date, the
Company shall mail a notice of redemption by firstclass mail to each Holder
whose securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued
interest to be paid;
(c) the name and address of the Paying Agent;
(d) that the Securities called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price and accrued interest, if any;
(e) that, unless the Company defaults in making the
redemption payment, interest on the Securities
called for redemption ceases to accrue on and
after the specified Redemption Date; and
(f) if any Security is being redeemed in part, the
portion of the principal amount (equal to $100 or
any integral multiple thereof) of such Security
to be redeemed and that, on or after the
Redemption Date, upon surrender of such Security,
a new Security or Securities in principal amount
equal to the unredeemed portion thereof will be
issued.
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At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
d. Effect of Notice of Redemption.
Once notice of redemption is mailed, the Securities called for
redemption become due and payable on the specified Redemption Date at the
Redemption Price.
e. Deposit of Redemption Price on Optional Redemption.
On or before each Redemption Date the Company shall deposit with the
Paying Agent money (which shall be immediately available funds if deposited on
the Redemption Date and which must be received by such Paying Agent prior to
10:00 a.m. New York City time) sufficient to pay the Redemption Price of and
accrued interest on all Securities to be redeemed on that date. The Paying Agent
shall return to the Company any money not required for that purpose.
f. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
11.
MISCELLANEOUS
a. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
b. Notices.
Any notice or communication to the Company or the Trustee is duly given
if in writing and (i) delivered in Person, (ii) mailed by firstclass mail or
(iii) transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following addresses:
The Company's address is:
1200 State Fair Boulevard
Syracuse, New York 13221
Attention: Francis D. Price, Jr.
Telephone number: (315) 461-2347
Facsimile number: (315) 461-2532
With a copy to:
The Penn Traffic Company
411 Theodore Fremd Avenue
Rye, New York 10580
Attention: Martin A. Fox
Telephone number: (914) 9213000
Facsimile number: (914) 9213031
The Trustee's address is:
One State Street
New York, New York 1000
Telephone number: (212) 8582000
Facsimile number: (212) 852-2952
Attention: Corporate Trust Division
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The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Holder shall be mailed by firstclass
mail to his address shown on the register kept by the Registrar; provided, that
items required under the TIA to be sent to Holders in compliance with TIA ss.
313(c) shall be mailed to Holders in compliance with such section. Failure to
mail a notice or a 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 delivered, mailed or transmitted 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.
c. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA ss. 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The Trustee
shall comply with the provisions of TIA ss.312(b). The Company, the Trustee, the
Registrar and any agent of any
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of them shall have the protection of TIA ss. 312(c).
d. 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:
i. Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any,
provided for in this Indenture relating to the
proposed action have been complied with; and
ii. an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been
complied with.
e. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture 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 has made Such examination or investigation as
is necessary to enable him to express an informed
opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has
been complied with.
f. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
g. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the State of New York are not required to be open. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
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h. No Recourse Against Others.
The Securities and the obligations of the Company under this Indenture
are solely obligations of the Company and no officer, director, employee or
stockholder, as such, of the Company shall be liable for any failure by the
Company to pay any amounts on the Securities when due or perform any such
obligation.
i. Duplicate Originals.
The parties may sign any number of copies of this Indenture. One signed
copy is enough to prove this Indenture.
j. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities.
k. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
l. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
m. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
n. Table of Contents, Headings, etc.
The Table of Contents, CrossReference Table, and headings of the
Articles and Sections of this Indenture have been inserted for the convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
o. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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SIGNATURES
Dated:___June_______, 1999 THE PENN TRAFFIC COMPANY
By:__________________________
Name:
Title:
Attest:
- -----------------------------
Name: Francis D. Price, Jr.
Title: Vice President and
Assistant Secretary (SEAL)
Dated: _____________, 1999 IBJ WHITEHALL BANK & TRUST COMPANY, Trustee
By:__________________________
Name:
Title:
Attest:
(SEAL)
Name:
Title:
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<PAGE>
Exhibit A
[FORM OF SECURITY]
No. $_________
THE PENN TRAFFIC COMPANY
Incorporated under the laws of the
State of Delaware
________%; Senior Notes due _________________
THE PENN TRAFFIC COMPANY, for value received, hereby promises to pay to
_________________________or registered assigns, the principal sum
of_____________ Dollars on _________________ and to pay interest thereon
semiannually in arrears at the rate of ____% per annum on _________________ and
_________ of each year commencing _______, until the principal hereof is paid or
made available for payment. Payment of principal, premium, if any, and interest
shall be made in the manner and subject to the terms set forth in provisions
appearing on the reverse hereof, which provisions, in their entirety, shall for
all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, THE PENN TRAFFIC COMPANY has caused this instrument to be
executed in its corporate name by the manual or facsimile signature of its
President or any Vice Chairman or Vice President and attested by its Secretary
or an Assistant Secretary.
THE PENN TRAFFIC COMPANY
By:_____________________________
Title:
Attest: _____________________________
[SEAL]
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[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein referred to in
the withinmentioned Indenture.
IBJ WHITEHALL BANK & TRUST COMPANY,
Trustee
By:_____________________________
Authorized Signatory
A-88
<PAGE>
(Back of Security)
THE PENN TRAFFIC COMPANY
_______________% Senior Notes due __________________
1. Interest. THE PENN TRAFFIC COMPANY (the "Company"), a Delaware corporation,
promises to pay interest on the principal amount of this Security at the rate
per annum shown above. The Company will pay interest semiannually in arrears on
__________________ and ______________________ of each year. Interest on the
Securities will accrue from the most recent date on which interest has been paid
or, if no interest has been paid, from ___________________. Interest will be
computed on the basis of a 360day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities (except
defaulted interest) to the Persons who are registered Holders of Securities at
the close of business on the regular record date, which shall be the
__________________ and ____________________, as the case may be, next preceding
the interest payment date even though Securities are cancelled after the record
date and on or before the interest payment date. Any such interest not so
punctually paid or duly provided for, and any interest payable on such defaulted
interest (to the extent lawful), will forthwith cease to be payable to the
Holder on such regular record date and shall be payable to the Person in whose
name this Security is registered at the close of business on a special record
date for the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 5 days prior to such
special record date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. However, the Company may pay principal, premium, if
any, and interest by check payable in such money. It may mail an interest check
to a Holder's registered address.
3. Paying Agent and Registrar. The Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or coRegistrar
without notice to any Holder. The Company may act in any such capacity.
4. Indenture. This Security is one of a duly authorized issue of securities of
the Company (herein called the "Securities"), issued and to be issued under an
Indenture dated as of June_28, 1999 (the "Indenture") between the Company and
the Trustee. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture Act of
1939 (15 U.S.C. ss.ss. 77aaa77bbbb), as amended by the Trust Indenture Reform
Act of 1990, as in effect on the date of the Indenture ("TIA"). The Securities
are subject to all such terms, and Holders are referred to the Indenture and
such Act for a statement of such terms. This Security is one of the series
designated on the face hereof limited to $___________ in an aggregate principal
amount. The Securities are unsecured general obligations of the Company. Unless
otherwise defined herein, all capitalized terms shall have the meanings assigned
to them in the Indenture.
5. Denominations. Transfer. Exchange. The Securities are in registered form
without coupons in denominations of $1,000 and integral multiples thereof unless
issued in lieu of an interest payment. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any
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<PAGE>
taxes and fees required by law or permitted by the Indenture. The Registrar need
not exchange or register the transfer of any Security or portion of a Security
selected for redemption. Also, it need not exchange or register the transfer of
any Securities for a period of 15 days before a selection of Securities to be
redeemed.
6. Optional Redemption. The Securities may not be redeemed prior to
__________________. On or after such date, the Securities may be redeemed at the
election of the Company as a whole at any time or in part from time to time at
the Redemption Prices (expressed in percentages of principal amount) set forth
below plus accrued interest to the Redemption Date, if redeemed during the
12 month period beginning __________________ of the years indicated below:
Year Percentage
---- ----------
---- -----%
---- -----%
---- -----%
---- and thereafter 100.00%
Notice of redemption will be mailed at least 30 days but not more than 60 days
before the Redemption Date to each Holder of Securities to be redeemed, at his
registered address. Securities in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000. On and after the
Redemption Date interest ceases to accrue on Securities or portions of them
called for redemption.
These Securities shall not have the benefit of any sinking fund obligations.
7. Persons Deemed Owners. The registered Holder of a Security may be treated as
its owner for all purposes.
8. Amendments and Waivers. Subject to certain exceptions, the Indenture and the
rights of the Holder of the Securities of each series to be affected under the
Indenture may be amended at any time by the Company and the Trustee with the
consent of the Holders of at least a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Without the consent of any Holder,
the Indenture or the Securities may be amended to cure any ambiguity, defect or
inconsistency; to comply with Section 5.01 of the Indenture; to make any change
that does not adversely affect the legal rights of any
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<PAGE>
Holder; to comply with the requirements of the SEC to maintain qualification of
the Indenture under the TIA; to add to or change the provisions of the Indenture
to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form; or to provide for the appointment of a
successor Trustee with respect to one or more (but not all) series of Securities
issued pursuant to the Indenture, as provided in Section 7.08 of the Indenture.
9. Remedies. As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee of
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
10. Prepayment at Holder's Option Upon Certain Merger and Change of Control
Events. In the event of a Change of Control or in the event of a merger where,
immediately after giving effect to the merger, the surviving corporation does
not meet the Consolidated Interest Coverage Ratio set forth in the Indenture,
the Company shall be obligated to make an offer to purchase this Security at a
purchase price in cash equal to 101% of its principal amount plus accrued
interest, after the occurrence of such Change in Control or merger. Holders of
Securities which are the subject of such an offer to repurchase shall receive an
offer to repurchase and may elect to have such Securities repurchased in
accordance with the provisions of the Indenture pursuant to and in accordance
with the terms of the Indenture. The Company shall give the Holder of this
Security notice of such right of repurchase not less than 20 nor more than 60
business days prior to the consummation of a merger, consolidation, transfer,
sale or lease that would require the Company to offer to repurchase the
Securities and not more than 45 business days following any other event
constituting a Change of Control, mailed by firstclass mail to the Holder's last
address as it appears upon the register. The Holder shall have the right to have
this Security repurchased if, among other things, the Security is tendered for
repurchase no later than five business days prior to the applicable repurchase
date. The Company shall have no obligation to consummate any merger,
consolidation, transfer, sale or lease that is the subject of any such notice,
and if any such merger, consolidation, transfer, sale or lease that was the
subject of any notice described above is not consummated, the Holder will not be
entitled to have this Security prepaid, and any Securities tendered for
prepayment will be returned.
11. Trustee Dealings with the Company IBJ WHITEHALL BANK & TRUST COMPANY, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any Affiliate with the same rights it would have as if it were not the Trustee.
12. No Recourse Against Others. A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issue of the Securities.
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<PAGE>
13. Unclaimed Money. If money for the payment of principal of or interest on any
Security remains unclaimed for two years after the date on which such payment
shall have come due, the Trustee or Paying Agent will pay the money back to the
Company at the Company's written request. After that, Holders entitled to this
money must look to the Company for payment, unless a law governing abandoned
property designates another Person.
14. Discharge Upon Redemption or Maturity. Subject to the terms of the
Indenture, the Indenture will be discharged and cancelled with respect to
Securities of any series upon the payment of all Securities of such series. The
Indenture contains provisions for defeasance at any time of certain restrictive
covenants with respect to this Security (in each case upon compliance with
certain conditions set forth therein).
15. Authentication. This Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
16. Governing Law. The laws of the State of New York shall govern this Security
and the Indenture.
17. Abbreviations. Customary abbreviations may be used in the name of a Holder
or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and UNIF GIFT MIN ACT (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder upon written request and without charge a
copy of the Indenture, which has in it the text of this Security in larger type.
Requests may be made to The Penn Traffic Company, 1200 State Fair Boulevard,
Syracuse, New York 13221, Attention: Mr._Francis D. Price, Jr.
A-92
<PAGE>
OPTION OF HOLDER TO ELECT REPURCHASE
(
Dated: _________________ Your signature: _______________________
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee: ___________________________________
Signature must be guaranteed by an eligible guarantor institution within the
meaning of Securities and Exchange Commission Rule 17Ad-15 (including banks,
stock brokers, savings and loan associations, national securities exchanges,
registered securities associations, clearing agencies and credit unions) with
membership or participation in an approved signature guarantee medallion program
if this Security is to be delivered other than to and in the name of the
registered holder.
A-93
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: I or we assign and transfer
this Security to
- -----------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
- -----------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________________agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
- -----------------------------------------------------------------------
Dated: _______________________ Your signature: ________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: ___________________________________
Signature must be guaranteed by an eligible guarantor institution within the
meaning of Securities and Exchange Commission Rule 17Ad-15 (including banks,
stock brokers, savings and loan associations, national securities exchanges,
registered securities associations, clearing agencies and credit unions) with
membership or participation in an approved signature guarantee medallion program
if this Security is to be delivered other than to and in the name of the
registered holder.
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<PAGE>
THE PENN TRAFFIC COMPANY
OFFICERS' CERTIFICATE
Pursuant to Sections 3.01, 3.03 and 11.04 of the Indenture
Joseph V. Fisher, President and Chief Executive Officer of The Penn
Traffic Company, a Delaware corporation (the "Company"), and Martin A. Fox, Vice
Chairman -- Finance of the Company, do hereby certify:
1. Each of the undersigned (i) has read Sections 2.01, 3.01, 3.03,
3.04, 11.04 and 11.05 of the Indenture dated as of June 28, 1999 (the
"Indenture") between the Company and IBJ Whitehall Bank & Trust Company, as
Trustee; (ii) has examined such accounts and records of the Company and made
such inquiries of officers, employees and agents of the Company as he has deemed
necessary to express his opinion as contained herein; and (iii) is of the
opinion that such examinations and inquiries are sufficient to enable him to
express an informed opinion as to whether or not the covenants and conditions
precedent which are stated herein to be complied with have been complied with;
2. Attached hereto as Exhibit A is a true and correct copy of a
specimen of the Company's 11% Senior Notes due June 28, 2009 (the "Notes"), the
aggregate initial principal amount of which shall be limited to $123,882,465 and
which shall have the terms set forth in such Exhibit A;
3. After giving effect to the authentication and delivery of the Notes
pursuant to the Company Order dated the date hereof (i) the aggregate principal
amount of Notes Outstanding will not exceed the maximum aggregate principal
amount permitted to be Outstanding pursuant to authorization by the Company's
Board of Directors; and (ii) the Company will not be in Default and no Event of
Default will have occurred; and
4. All conditions precedent provided for in the Indenture relating to
the authentication and delivery of the Notes have been complied with.
Capitalized terms used herein that are not otherwise defined shall have
the meanings ascribed thereto in the Indenture.
This Certificate may be executed in counterparts, each one of which
shall be deemed an original and which together shall constitute one document.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Certificate this
____ day of ___________, 1999.
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Joseph V. Fisher
President and Chief Executive Officer
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Martin A. Fox
Vice Chairman -- Finance
<PAGE>
Exhibit A
No.________
$100,000,000.00
CUSIP 707832AH4
THE PENN TRAFFIC COMPANY
Incorporated under the laws of the
State of Delaware
11% Senior Notes due June 28, 2009
THE PENN TRAFFIC COMPANY, for value received, hereby promises to pay to
__________ or registered assigns, the principal sum of $___________ Dollars on
June_28, 2009 and to pay interest thereon in cash semiannually in arrears at the
rate of 11% per annum on June_28 and December_28 of each year until the
principal hereof is paid or made available for payment; provided, however, that,
at the option of The Penn Traffic Company, semiannual interest payments due on
or prior to June 28, 2001 may be paid in the form of additional Securities, each
in principal amount equal to the interest then to be paid and otherwise
identical in form to this Security, in lieu of cash. Payment of principal,
premium, if any, and interest shall be made in the manner and subject to the
terms set forth in provisions appearing on the reverse hereof, which provisions,
in their entirety, shall for all purposes have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, THE PENN TRAFFIC COMPANY has caused this instrument
to be executed in its corporate name by the manual or facsimile signature of its
President or any Vice-Chairman or a Vice President and attested by its Secretary
or an Assistant Secretary.
Dated: June 28, 1999
THE PENN TRAFFIC COMPANY
By:_______________________________
Martin A. Fox
Vice Chairman -- Finance
Attest:
__________________________________
Francis D. Price, Jr.
Vice President and
Assistant Secretary
[SEAL]
<PAGE>
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: June 28, 1999
IBJ WHITEHALL BANK & TRUST COMPANY,
as Trustee
By:_______________________________
Authorized Signatory
<PAGE>
(Back of Security)
THE PENN TRAFFIC COMPANY
11% Senior Notes due June , 2009
1. INTEREST. THE PENN TRAFFIC COMPANY (the "Company"), a Delaware
corporation, promises to pay interest on the principal amount of this Security
at the rate per annum shown above. The Company will pay interest in cash
semiannually in arrears on June_28 and December_28 of each year (each, an
"Interest Payment Date"); provided, however, that, at the option of The Penn
Traffic Company, semiannual interest payments due on or prior to June_28, 2001
may be paid in the form of additional Securities, each in principal amount equal
to the interest then to be paid and otherwise identical in form to this
Security, in lieu of cash. Interest on the Securities will accrue from the most
recent date on which interest has been paid or, if no interest has been paid,
from June 28, 1999. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the regular record date, which shall be
the 15th of June and the 15th of December, as the case may be, next preceding
the interest payment date even though Securities are canceled after the record
date and on or before the interest payment date. Any such interest not so
punctually paid or duly provided for, and any interest payable on such defaulted
interest (to the extent lawful), will forthwith cease to be payable to the
Holder on such regular record date and shall be payable to the Person in whose
name this Security is registered at the close of business on a special record
date for the payment of such defaulted interest to be fixed by the Company,
notice of which shall be given to Holders not less than 5 days prior to such
special record date. Holders must surrender Securities to a Paying Agent to
collect principal payments. The Company will pay principal and interest, except
as otherwise provided by the terms of this Security, in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal, premium, if any, and
interest, except as otherwise provided by the terms of this Security, by check
payable in such money. It may mail an interest check to a Holder's registered
address. The Company shall notify the Trustee in writing of its election to pay
interest on this Security through the issuance of additional Securities and the
aggregate amount of additional Securities to be issued not less than 10 nor more
than 45 days prior to the record date for the Interest Payment Date on which
additional Securities will be issued. On each such Interest Payment Date, the
Trustee shall authenticate additional Securities for original issuance to each
holder on the relevant record date in the aggregate principal amount required to
pay such interest. Additional Securities are an additional obligation of the
Company and shall be governed by, and entitled to the benefits of the Indenture
(as such term is defined below) and shall be subject to the terms of the
Indenture and shall rank pari passu with and be subject to the same terms
(including the rate of interest from time to time payable thereon) as this
Security (except, as the case may be, with respect to the issuance date and
aggregate principal amount).
3. PAYING AGENT AND REGISTRAR. The Trustee will act as Paying Agent and
Registrar. The Company may change any Paying Agent, Registrar or co-Registrar
without notice to any Holder. The Company may act in any such capacity.
4. INDENTURE. This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities"), issued and to be
issued under an Indenture dated as of June_28, 1999 (the "Indenture") between
the Company and the Trustee. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
<PAGE>
Indenture Act of 1939 (15 U.S.C. Sections 77aaa77bbbb), as amended by the Trust
Indenture Reform Act of 1990, as in effect on the date of the Indenture ("TIA").
The Securities are subject to all such terms, and Holders are referred to the
Indenture and such Act for a statement of such terms. This Security is one of
the series designated on the face hereof limited to $100,000,000.00 principal
amount, plus such additional principal amount of Securities as may be issued in
payment of interest on Securities from the date of their initial issuance until
the semi-annual interest payment due on June 28, 2002. The Securities are
unsecured senior obligations of the Company. Unless otherwise defined herein,
all capitalized terms shall have the meanings assigned to them in the Indenture.
5. DENOMINATIONS, TRANSFER, EXCHANGE. The Securities are in registered
form without coupons in denominations of $1 and integral multiples thereof
unless issued in lieu of an interest payment. The transfer of Securities may be
registered and Securities may be exchanged as provided in the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not exchange or register
the transfer of any Security or portion of a Security selected for redemption.
Also, it need not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be redeemed.
6. OPTIONAL REDEMPTION. Except as set forth below, the Securities may
not be redeemed prior to June 28, 2004. On or after such date, the Securities
may be redeemed at the election of the Company as a whole at any time or in part
from time to time at the Redemption Prices (expressed in percentages of
principal amount) set forth below plus accrued interest to the Redemption Date,
if redeemed during the 12month period beginning June 28 of the years indicated
below:
Year Percentage
- ---- ----------
2004................................................. 106.0%
2005................................................. 104.5%
2006................................................. 103.0%
2007................................................. 101.5%
2008 and thereafter.................................. 100.0%
In addition, the Company may, at its option, redeem (i) at any time on
or prior to June_28, 2002 up to 25% of the original principal amount of the
Securities at a redemption price of 111% with the Net Proceeds of a Qualified
Equity Offering and (ii) simultaneously with or at any time following the
occurrence of a Change of Control all or any portion of the Securities at a
redemption price of 111%, plus all accrued, but unpaid interest on the
Securities to the date of redemption.
Notice of redemption will be mailed at least 15 days but not more than
45 days before the Redemption Date to each Holder of Securities to be redeemed,
at his registered address. Securities in denominations larger than $100 may be
redeemed in part but only in whole multiples of $100. On and after the
Redemption Date interest ceases to accrue on Securities or portions of them
called for redemption.
These Securities shall not have the benefit of any sinking fund
obligations.
7. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
8. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the Indenture
and the rights of the Holder of the Securities of each series to be affected
under the Indenture may be amended at any time by the Company and the Trustee
with the consent of the Holders of at least a
<PAGE>
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Without the consent of any Holder, the Indenture or the Securities may be
amended to cure any ambiguity, defect or inconsistency; to comply with Section
5.01 of the Indenture; to make any change that does not adversely affect the
legal rights of any Holder; to comply with the requirements of the SEC to
maintain qualification of the Indenture under the TIA; to add to or change the
provisions of the Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit
or facilitate the issuance of Securities in uncertificated form; or to provide
for the appointment of a successor Trustee with respect to one or more (but not
all) series of Securities issued pursuant to the Indenture, as provided in
Section 7.08 of the Indenture.
9. REMEDIES. As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a receiver or
trustee of for any other remedy thereunder, unless such Holder shall have
previously given the Trustee written notice of a continuing Event of Default
with respect to the Securities of this series, the Holders of not less than 25%
in principal amount of the Securities of this series at the time Outstanding
shall have made written request to the Trustee to institute proceedings in
respect of such Event of Default as Trustee and offered the Trustee reasonable
indemnity, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates
expressed herein.
10. PREPAYMENT AT HOLDER'S OPTION UPON CERTAIN MERGER AND CHANGE OF
CONTROL EVENTS. In the event of a Change of Control or in the event of a merger
where, immediately after giving effect to the merger, the surviving corporation
does not meet the Consolidated Interest Coverage Ratio set forth in the
Indenture, subject to the provisions of Section 6 of this Security, the Company
shall be obligated to make an offer to purchase this Security at a purchase
price in cash equal to 101% of its principal amount plus accrued interest, after
the occurrence of such Change in Control or merger. Holders of Securities which
are the subject of such an offer to repurchase shall receive an offer to
repurchase and may elect to have such Securities repurchased in accordance with
the provisions of the Indenture pursuant to and in accordance with the terms of
the Indenture. The Company shall give the Holder of this Security notice of such
right of repurchase not less than 20 nor more than 60 business days prior to the
consummation of a merger, consolidation, transfer, sale or lease that would
require the Company to offer to repurchase the Securities and not more than 45
business days following any other event constituting a Change of Control, mailed
by first-class mail to the Holder's last address as it appears upon the
register. The Holder shall have the right to have this Security repurchased if,
among other things, the Security is tendered for repurchase no later than five
business days prior to the applicable repurchase date. The Company shall have no
obligation to consummate any merger, consolidation, transfer, sale or lease that
is the subject of any such notice, and if any such merger, consolidation,
transfer, sale or lease that was the subject of any notice described above is
not consummated, the Holder will not be entitled to have this Security prepaid,
and any Securities tendered for prepayment will be returned.
11. TRUSTEE DEALINGS WITH THE COMPANY. IBJ Whitehall Bank & Trust
Company, the Trustee under the Indenture, in its individual or any other
capacity, may become the
<PAGE>
owner or pledgee of Securities and may otherwise deal with the Company or any
Affiliate with the same rights it would have as if it were not the Trustee.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. This waiver and release are part of the consideration for the issue
of the Securities.
13. UNCLAIMED MONEY. If money for the payment of principal of or
interest on any Security remains unclaimed for two years after the date on which
such payment shall have come due, the Trustee or Paying Agent will pay the money
back to the Company at the Company's written request. After that, Holders
entitled to this money must look to the Company for payment, unless a law
governing abandoned property designates another Person.
14. DISCHARGE UPON REDEMPTION OR MATURITY. Subject to the terms of the
Indenture, the Indenture will be discharged and canceled with respect to
Securities of any series upon the payment of all Securities of such series. The
Indenture contains provisions for defeasance at any time of certain restrictive
covenants with respect to this Security (in each case upon compliance with
certain conditions set forth therein).
15. AUTHENTICATION. This Security shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
16. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
SECURITY AND THE INDENTURE.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants
by the entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian), and UNIF GIFT MIN ACT (= Uniform
Gifts to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture, which has in it the text of this Security in
larger type. Requests may be made to The Penn Traffic Company, 1200 State Fair
Boulevard, Syracuse, New York 13221, Attention: Mr._Francis D. Price, Jr.
<PAGE>
OPTION OF HOLDER TO ELECT REPURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 5.01 of the Indenture, check the box:
/ /
Dated: ____________________ Your signature:_______________________
- -----------------------------------
(Sign exactly as name appears
on the other side of this Security)
Signature Guarantee: _______________________________________
Signature must be guaranteed by an eligible guarantor institution within the
meaning of Securities and Exchange Commission Rule 17Ad-15 (including banks,
stock brokers, savings and loan associations, national securities exchanges,
registered securities associations, clearing agencies and credit unions) with
membership or participation in an approved signature guarantee medallion program
if this Security is to be delivered other than to and in the name of the
registered holder.
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below: I or we assign and transfer
this Security to
- ------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- ------------------------------------------------
- ------------------------------------------------
- ------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _______________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
- ------------------------------------------------
Dated:______________________________ Your signature: ________________________
- -------------------------------------------
(Sign exactly as your name
appears on the other side of this Security)
Signature Guarantee: ___________________________________
Signature must be guaranteed by an eligible guarantor institution within the
meaning of Securities and Exchange Commission Rule 17Ad-15 (including banks,
stock brokers, savings and loan associations, national securities exchanges,
registered securities associations, clearing agencies and credit unions) with
membership or participation in an approved signature guarantee medallion program
if this Security is to be delivered other than to and in the name of the
registered holder.
