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Exhibit 99.T3(C)
LOEHMANN'S HOLDINGS INC., as Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
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INDENTURE
Dated as of September __, 2000
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$25,000,000 (plus accreted interest)
11% Senior Notes due 2005
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION...........................................................1
Section 101. Definitions...................................................................1
Section 102. Other Definitions............................................................16
Section 103. Compliance Certificates and Opinions.........................................17
Section 104. Form of Documents Delivered to Trustee.......................................17
Section 105. Acts of Holders..............................................................18
Section 106. Notices, etc., to the Trustee, the Company...................................20
Section 107. Notice to Holders; Waiver....................................................20
Section 108. Conflict with Trust Indenture Act............................................21
Section 109. Effect of Headings and Table of Contents.....................................21
Section 110. Successors and Assigns.......................................................21
Section 111. Separability Clause..........................................................21
Section 112. Benefits of Indenture........................................................21
Section 113. Governing Law................................................................22
Section 114. Legal Holidays...............................................................22
Section 115. Independence of Covenants....................................................22
Section 116. Schedules and Exhibits.......................................................22
Section 117. Counterparts.................................................................22
ARTICLE II SECURITY FORMS...............................................................23
Section 201. Forms Generally..............................................................23
Section 202. Form of Face of Security.....................................................23
Section 203. Form of Reverse of Securities................................................27
Section 204. Form of Trustee's Certificate of Authentication..............................30
ARTICLE III THE SECURITIES...............................................................32
Section 301. Title and Terms..............................................................32
Section 302. Denominations................................................................33
Section 303. Execution, Authentication, Delivery and Dating...............................33
Section 304. Temporary Securities.........................................................35
Section 305. Registration, Registration of Transfer and Exchange..........................36
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.............................38
Section 307. Payment of Interest; Interest Rights Preserved...............................39
Section 308. Persons Deemed Owners........................................................40
Section 309. Cancellation.................................................................40
Section 310. Computation of Interest......................................................41
ARTICLE IV DEFEASANCE AND COVENANT DEFEASANCE...........................................41
Section 401. Company's Option to Effect Defeasance or Covenant Defeasance.................41
Section 402. Defeasance and Discharge.....................................................41
Section 403. Covenant Defeasance..........................................................42
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Section 404. Conditions to Defeasance or Covenant Defeasance..............................42
Section 405. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.....................................45
Section 406. Reinstatement................................................................46
ARTICLE V REMEDIES.....................................................................46
Section 501. Events of Defaults...........................................................46
Section 502. Acceleration of Maturity; Rescission and Annulment...........................48
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................................49
Section 504. Trustee May File Proofs of Claim.............................................50
Section 505. Trustee May Enforce Claims without
Possession of Securities.....................................................51
Section 506. Application of Money Collected...............................................51
Section 507. Limitation on Suits..........................................................52
Section 508. Unconditional Right of Holders to Receive Accreted Value,
Premium and Interest.........................................................52
Section 509. Restoration of Rights and Remedies...........................................53
Section 510. Rights and Remedies Cumulative...............................................53
Section 511. Delay or Omission Not Waiver.................................................53
Section 512. Control by Holders...........................................................53
Section 513. Waiver of Past Defaults......................................................54
Section 514. Undertaking for Costs........................................................54
Section 515. Waiver of Stay, Extension or Usury Laws......................................54
Section 516. Remedies Subject to Applicable Law...........................................55
ARTICLE VI THE TRUSTEE..................................................................55
Section 601. Duties of Trustee............................................................55
Section 602. Notice of Defaults...........................................................56
Section 603. Certain Rights of Trustee....................................................57
Section 604. Trustee Not Responsible for Recitals, Dispositions of Securities
or Application of Proceeds Thereof...........................................58
Section 605. Trustee and Agents May Hold Securities; Collections; etc.....................59
Section 606. Money Held in Trust..........................................................59
Section 607. Compensation and Indemnification of Trustee and Its Prior
Claim........................................................................59
Section 608. Conflicting Interests........................................................60
Section 609. Corporate Trustee Required; Eligibility......................................60
Section 610. Resignation and Removal; Appointment of
Successor Trustee............................................................60
Section 611. Acceptance of Appointment by Successor.......................................62
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Section 612. Merger, Conversion, Consolidation or
Succession to Business.......................................................63
Section 613. Preferential Collection of Claims Against Company............................63
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY......................................................................64
Section 701. Company to Furnish Trustee Names and
Addresses of Holders.........................................................64
Section 702. Disclosure of Names and Addresses of Holders.................................64
Section 703. Reports by Trustee...........................................................64
Section 704. Reports by Company...........................................................65
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE.....................................................................65
Section 801. Company May Consolidate, etc.................................................65
Section 802. Successor Substituted........................................................67
ARTICLE IX SUPPLEMENTAL INDENTURES......................................................67
Section 901. Supplemental Indentures and Agreements without Consent of
Holders......................................................................67
Section 902. Supplemental Indentures and Agreements with Consent of
Holders......................................................................68
Section 903. Execution of Supplemental Indentures and Agreements..........................69
Section 904. Effect of Supplemental Indentures............................................70
Section 905. Conformity with Trust Indenture Act..........................................70
Section 906. Reference in Securities to Supplemental Indentures...........................70
Section 907. Notice of Supplemental Indentures............................................70
Section 908. Revocation and Effect of Consents............................................70
ARTICLE X COVENANTS....................................................................71
Section 1001. Payment of Accreted Value, Premium and Interest..............................71
Section 1002. Maintenance of Office or Agency..............................................71
Section 1003. Money for Security Payments to Be Held in Trust..............................71
Section 1004. Corporate Existence..........................................................73
Section 1005. Payment of Taxes and Other Claims............................................73
Section 1006. Maintenance of Properties....................................................74
Section 1007. Insurance....................................................................74
Section 1008. Limitation on Indebtedness...................................................74
Section 1009. Limitation on Restricted Payments............................................76
Section 1010. Limitation on Transactions with Affiliates...................................79
Section 1011. Limitation on Sale and Leaseback Transactions................................80
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Section 1012. Limitation on Liens..........................................................80
Section 1013. Limitation on Sale of Assets.................................................82
Section 1014. [intentionally omitted]......................................................86
Section 1015. Purchase of Securities upon a Change of Control..............................86
Section 1016. Limitation on Subsidiary Capital Stock.......................................90
Section 1017. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.......................................................90
Section 1019. Statement by Officers as to Default..........................................91
Section 1020. Waiver of Certain Covenants..................................................92
ARTICLE XI REDEMPTION OF SECURITIES.....................................................92
Section 1101. Rights of Redemption.........................................................92
Section 1102. Applicability of Article.....................................................92
Section 1103. Election to Redeem; Notice to Trustee........................................93
Section 1104. Selection by Trustee of Securities to Be Redeemed............................93
Section 1105. Notice of Redemption.........................................................93
Section 1106. Deposit of Redemption Price..................................................94
Section 1107. Securities Payable on Redemption Date........................................95
Section 1108. Securities Redeemed or Purchased in Part.....................................95
ARTICLE XII SATISFACTION AND DISCHARGE...................................................95
Section 1201. Satisfaction and Discharge of Indenture......................................95
Section 1202. Application of Trust Money...................................................97
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TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
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NOTE: THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE DEEMED TO BE A
PART OF THIS INDENTURE.
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Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of , 2000
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Trust Indenture Indenture
ACT SECTION SECTION
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Sections 310(a)(1).......................................................................609
(a)(2).......................................................................609
(a)(5).......................................................................609
(b)......................................................................... 607, 610
Sections 311(a)..........................................................................613
Sections 312(a)..........................................................................701
(c)..........................................................................702
Sections 313(a)..........................................................................703
(c)..........................................................................703, 704
Sections 314(a)..........................................................................704
(a)(4).......................................................................1011
(c)(1).......................................................................103
(c)(2).......................................................................103
(e)..........................................................................103
Sections 315(a)..........................................................................601(b)
(b)..........................................................................602
(c)..........................................................................601(a)
(d)..........................................................................601(c), 603
(e)..........................................................................514
Sections 316(a) (last sentence)..........................................................101 ("Outstanding")
(a)(1)(A)....................................................................502, 512
(a)(1)(B)....................................................................513
(b)..........................................................................508
(c)..........................................................................105
Sections 317(a)(1).......................................................................503
(a)(2).......................................................................504
(b)..........................................................................1003
Sections 318(a)..........................................................................108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of this Indenture.
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INDENTURE, dated as of September __, 2000, between LOEHMANN'S
HOLDINGS INC., a Delaware corporation (the "Company"), and UNITED STATES TRUST
COMPANY OF NEW YORK, a New York corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
11% Senior Notes due 2005 (the "Securities"), of substantially the tenor and
amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture and the Securities;
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act that are required to be part of and to
govern indentures qualified under the Trust Indenture Act;
All acts and things necessary have been done to make the
Securities, when duly issued and executed by the Company and authenticated and
delivered hereunder, the valid obligations of the Company, and this Indenture a
valid agreement of the Company, in accordance with the terms of this Indenture;
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 covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
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(d) the words "herein", "hereof' and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
(e) all references to $, US$, dollars or United States dollars
shall refer to the lawful currency of the United States of America; and
(f) all references herein to particular Sections or Articles
refer to this Indenture unless otherwise so indicated.
Certain terms used principally in Article Four are defined in
Article Four.
"Accreted Value" means, for any Security, as of any date of
determination, the sum of (i) the Original Issue Price of the Security and (ii)
any interest in respect of such Security added to such Accreted Value pursuant
to Section 301 of this Indenture and the terms of such Security. Initially, the
amount under clause (ii) shall be zero.
"Acquired Indebtedness" means Indebtedness of a Person (i)
existing at the time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
"Affiliate" means, with respect to any specified Person, (i)
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person, (ii) any other
Person that owns, directly or indirectly, 20% or more of such specified Person's
Capital Stock or any executive officer or director of any such specified Person
or other Person or, with respect to any natural Person, any person having a
relationship with such Person by blood, marriage or adoption not more remote
than first cousin or (iii) any other Person 20% or more of the Voting Stock of
which is beneficially owned or held directly or indirectly by such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person directly or indirectly, whether through ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Sale" means any sale, issuance, conveyance, transfer,
lease or other disposition (including, without limitation, by way of merger,
consolidation or Sale and Leaseback Transaction) (collectively, a "transfer"),
directly or indirectly, in one or a series of related transactions, of (i) any
Capital Stock of any Subsidiary; (ii) all or substantially all of the properties
and assets of any division or line of business of the Company or its
Subsidiaries; or (iii) any other material properties or assets of the Company or
any Subsidiary, other than in the ordinary course of business. For the
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3
purposes of this definition, the term "Asset Sale" shall not include any
transfer of properties and assets that (A) is governed by Article Eight, (B) is
by the Company to any Wholly Owned Subsidiary, or by any Subsidiary to the
Company or any Wholly Owned Subsidiary in accordance with the terms of this
Indenture, or (C) is of obsolete equipment in the ordinary course of business.
"Average Life to Stated Maturity" means, as of the date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) the sum of the products of (a) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment of such Indebtedness multiplied by (b) the amount of each such principal
payment by (ii) the sum of all such principal payments.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code
of 1978, as amended, or any similar United States federal or state law relating
to bankruptcy, insolvency, receivership, winding up, liquidation, reorganization
or relief of debtors or any amendment to, succession to or change in any such
law.
"Board of Directors" means the board of directors of the
Company, as the case may be, or any duly 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 each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions or trust companies
in The City of New York or the city in which the Corporate Trust Office of the
Trustee is located are authorized or obligated by law, regulation or executive
order to close.
"Capital Lease Obligation" of any Person means any obligation
of such Person and its Subsidiaries on a Consolidated basis under any capital
lease of real or personal property which, in accordance with GAAP, has been
recorded as a capitalized lease obligation.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock or other equity interests.
"Change of Control" means the occurrence of either of the
following events: (i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be
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4
deemed to have beneficial ownership of all shares that such Person has the right
to acquire, whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 50% of the total
outstanding Voting Stock of the Company; (ii) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election to such Board of Directors or whose nomination for election by the
stockholders of the Company, was approved by a vote of 66-2/3% 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 such Board of Directors then in
office; (iii) the Company consolidates with or merges with or into any Person or
conveys, transfers or leases all or substantially all of its assets to any
Person, or any corporation consolidates with or merges into or with the Company,
in any such 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 where the outstanding Voting Stock of
the Company is not changed or exchanged at all (except to the extent necessary
to reflect a change in the jurisdiction of incorporation of the Company) or
where (A) the outstanding Voting Stock of the Company is changed into or
exchanged for (x) Voting Stock of the surviving corporation which is not
Redeemable Capital Stock or (y) cash, securities and other property (other than
Capital Stock of the surviving corporation) in an amount which could be paid by
the Company as a Restricted Payment in accordance with Section 1009 (and such
amount shall be treated as a Restricted Payment subject to the provisions in
this Indenture described under Section 1009) and (B) no "person" or "group" owns
immediately after such transaction, directly or indirectly, more than 50% of the
total outstanding Voting Stock of the surviving corporation; or (iv) the Company
is liquidated or dissolved or adopts a plan of liquidation or dissolution other
than in a transaction which complies with the provisions described under Article
Eight.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act then the
body performing such duties at such time.
"Common Stock" means the common stock, par value $0.01 per
share, of the Company.
"Company" means Loehmann's Holdings Inc., a corporation
incorporated under the laws of Delaware, until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "Company" shall mean such successor Person. To the extent necessary
to comply with the requirements of the provisions of the Trust Indenture Act
Sections 310 through 317 as they are applicable to
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5
the Company, the term "Company" shall include any other obligor with respect to
the Securities for purposes of complying with such provisions.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any one of its Chairman, Chairman
of the Board, its Vice Chairman, its President, its Chief Executive Officer, its
Chief Operating Officer, the CEO or a Vice President (regardless of Vice
Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Fixed Charge Coverage Ratio" of any Person
means, for any period, the ratio of (a) EBITDA to (b) the sum of Consolidated
Interest Expense for such period and cash and non-cash dividends paid on any
Preferred Stock of the Company during such period; PROVIDED that (i) in making
such computation, the Consolidated Interest Expense attributable to interest on
any Indebtedness computed on a PRO FORMA basis and (A) bearing a floating
interest rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period and (B) which was
not outstanding during the period for which the computation is being made but
which bears, at the option of the Company, a fixed or floating rate of interest,
shall be computed by applying at the option of the Company, either the fixed or
floating rate and (ii) in making such computation, the Consolidated Interest
Expense of the Company attributable to interest on any Indebtedness under a
revolving credit facility computed on a PRO FORMA basis shall be computed based
upon the average daily balance of such Indebtedness during the applicable
period.
"Consolidated Income Tax Expense" of any Person means, for any
period, the provision for federal, state, local and foreign income taxes of such
Person and its Consolidated Subsidiaries for such period as determined in
accordance with GAAP.
"Consolidated Interest Expense" of any Person means, without
duplication, for any period, the sum of (a) the interest expense of such Person
and its Subsidiaries for such period, on a Consolidated basis, including,
without limitation, (i) amortization of debt discount, (ii) the net cost under
Interest Rate Agreements and Currency Hedging Arrangements (including
amortization of discounts), (iii) the interest portion of any deferred payment
obligation and (iv) accrued interest, plus (b) (i) the interest component of the
Capital Lease Obligations paid, accrued and/or scheduled to be paid or accrued
by such Person and its Subsidiaries during such period and (ii) all capitalized
interest of such Person and its Subsidiaries, in each case as determined in
accordance with GAAP.
"Consolidated Net Income (Loss)" of any Person means, for any
period, the Consolidated net income (or loss) of the Company and its
Subsidiaries for such period on a Consolidated basis as determined in accordance
with GAAP, adjusted, to the extent included in calculating such net income (or
loss), by excluding, without duplication, (i) all extraordinary gains or losses
(less all fees and expenses relating thereto), (ii) the portion
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6
of net income (or loss) of the Company and its Subsidiaries on a Consolidated
basis allocable to minority interests in unconsolidated Persons to the extent
that cash dividends or distributions have not actually been received by the
Company or one of its Consolidated Subsidiaries, (iii) net income (or loss) of
any Person combined with the Company or any of its Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(iv) any gain or loss, net of taxes, realized upon the termination of any
employee pension benefit plan, (v) net gains (but not losses) (less all fees and
expenses relating thereto) in respect of dispositions of assets other than in
the ordinary course of business, (vi) [intentionally omitted] (vii) any
restoration to income of any contingency reserve, except to the extent provision
for such reserve was made out of income accrued at any time following the date
of the Indenture, or (viii) any gain or loss arising from the acquisition of any
securities, or the extinguishment, under GAAP, of any Indebtedness of such
Person.
"Consolidated Net Worth" of any Person, as of a date, means
the Consolidated stockholders' equity (excluding Redeemable Capital Stock) of
such Person and its Subsidiaries, as of such date, as determined in accordance
with GAAP.
"Consolidated Non-cash Charges" of any Person means, for any
period, the aggregate depreciation, amortization and other non-cash charges of
such Person and its subsidiaries on a Consolidated basis for such period, as
determined in accordance with GAAP (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period).
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its subsidiaries if and
to the extent the accounts of such Person and each of its subsidiaries would
normally be consolidated with those of such Person, all in accordance with GAAP.
The term "Consolidated" shall have a similar meaning.
"Corporate Trust Office" means the office of the Trustee or an
affiliate or agent thereof at which at any particular time the corporate trust
business for the purposes of this Indenture shall be principally administered,
which office at the date of execution of this Indenture is located at 114 West
47th Street, 15th Floor, New York, New York 10036.
"Credit Facility" means the Credit Agreement, dated as of
September __, 2000, among Loehmann's Operating Co., the lenders parties thereto,
and Bankers Trust Company, as agent, together with the related Credit Documents
as defined therein, as such agreements and documents may be amended, renewed
extended, substituted, refinanced, restructured, replaced, supplemented or
otherwise modified from time to time (including, without limitation, any
successive renewals, extensions, substitutions, refinancings, restructurings,
replacements, supplementations or other modifications of the foregoing).
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"Currency Hedging Arrangements" means one or more of the
following agreements which shall be entered into by one or more financial
institutions: foreign exchange contracts, currency swap agreements or other
similar agreements or arrangements designed to protect against the fluctuations
in currency values.
"Depositary" means the Person designated to act as Depositary
by the Company in accordance with Section 303 until a successor Depositary shall
have become such pursuant to the applicable provisions of this Indenture.
"Default" means any event which is, or after notice or passage
of any time or both would be, an Event of Default.
"EBITDA" means the sum of Consolidated Net Income (Loss),
Consolidated Interest Expense, Consolidated Income Tax Expense and Consolidated
Non-cash Charges deducted in computing Consolidated Net Income (Loss) in each
case, for such period, of the Company and its Subsidiaries on a Consolidated
basis, all determined in accordance with GAAP.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Fair Market Value" means, with respect to any asset or
property, the sale value that would be obtained in an arm's-length transaction
between an informed and willing seller under no compulsion to sell and an
informed and willing buyer under no compulsion to buy.
"Free Cash Flow" has the meaning assigned to such term in the
Credit Facility as of the date hereof.
"Generally Accepted Accounting Principles" or "GAAP" means
generally accepted accounting principles in the United States, consistently
applied, which are in effect on the date of this Indenture.
"Global Security" means a Security that evidences all or part
of the Securities issued to the Depositary in accordance with Section 303 and
bearing the legends prescribed in Sections 202 and 303.
"Guaranteed Debt" of any Person means, without duplication,
all Indebtedness of any other Person referred to in the definition of
Indebtedness contained in this Section guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (i) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of
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8
such Indebtedness, (ii) to purchase, sell or lease (as lessee or lessor)
property, or to purchase or sell services, primarily for the purpose of enabling
the debtor to make payment of such Indebtedness or to assure the holder of such
Indebtedness against loss, (iii) to supply funds to, or in any other manner
invest in, the debtor (including any agreement to pay for property or services
without requiring that such property be received or such services be rendered),
(iv) to maintain working capital or equity capital of the debtor, or otherwise
to maintain the net worth, solvency or other financial condition of the debtor
or (v) otherwise to assure a creditor against loss; PROVIDED that the term
"guarantee" shall not include endorsements for collection or deposit, in either
case in the ordinary course of business.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" means, with respect to any Person, without
duplication, (i) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property or services, excluding any trade payables
and other accrued current liabilities arising in the ordinary course of
business, but including, without limitation, all obligations, contingent or
otherwise, of such Person in connection with any letters of credit issued under
letter of credit facilities, acceptance facilities or other similar facilities
and in connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Capital Stock of such Person, or any warrants,
rights or options to acquire such Capital Stock, now or hereafter outstanding,
(ii) all obligations of such Person evidenced by bonds, notes, debentures or
other similar instruments, (iii) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even if the rights and remedies of the seller or lender
under such agreement in the event of default are limited to repossession or sale
of such property), but excluding trade payables arising in the ordinary course
of business, (iv) all obligations under Interest Rate Agreements and Currency
Hedging Arrangements of such Person, (v) all Capital Lease Obligations of such
Person, (vi) all Indebtedness referred to in clauses (i) through (v) above of
other Persons and all dividends of other Persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien, upon or with respect to
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness, (vii) all Guaranteed Debt of such Person, (viii)
all Redeemable Capital Stock valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends,
and (ix) any amendment, supplement, modification, deferral, renewal, extension,
refunding or refinancing of any liability of the types referred to in clauses
(i) through (viii) above. For purposes hereof, the "maximum fixed repurchase
price" of any Redeemable Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Redeemable
Capital Stock as if such Redeemable Capital Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to this
Indenture,
<PAGE>
9
and if such price is based upon, or measured by, the Fair Market Value of such
Redeemable Capital Stock, such Fair Market Value to be determined in good faith
by the board of directors of the issuer of such Redeemable Capital Stock.
"Indenture" means this instrument as originally executed
(including all exhibits and schedules thereto) and as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Company
and any other obligor under this Indenture or under the Securities, to pay the
Accreted Value or principal of, premium, if any, and interest when due and
payable, and all other amounts due or to become due under or in connection with
this Indenture, the Securities and the performance of all other obligations to
the Trustee and the Holders under this Indenture and the Securities, according
to the terms thereof.
"Independent Director" means a director of the Company other
than a director (i) who (apart from being a director of the Company or any
Subsidiary) is an employee, insider, associate or Affiliate of the Company or a
Subsidiary or has held any such position during the previous five years or (ii)
who is a director, an employee, insider, associate or Affiliate of another party
to the transaction in question.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Rate Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
interest rate protection agreements (including, without limitation, interest
rate swaps, caps, floors, collars and similar agreements) and/or other types of
interest rate hedging agreements from time to time.
"Investment" means, with respect to any Person, directly or
indirectly, any advance, loan (including guarantees), or other extension of
credit or capital contribution to (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), or any purchase, acquisition or ownership by such Person of any
Capital Stock, bonds, notes, debentures or other securities issued or owned by
any other Person, other than Senior Debt, and all other items that would be
classified as investments on a balance sheet prepared in accordance with GAAP.
"Lien" means any mortgage or deed of trust, charge, pledge,
lien, (statutory or otherwise), privilege, security interest, assignment,
deposit, arrangement, easement, hypothecation, claim, preference, priority or
other encumbrance upon or with respect to any property of any kind (including
any conditional sale, capital lease or other title
<PAGE>
10
retention agreement, any leases in the nature thereof, and any agreement to give
any security interest), real or personal, movable or immovable, now owned or
hereafter acquired.
"Matching Amortization Payments" has the meaning assigned to
such term in the Credit Facility as of the date hereof.
"Maturity" means, when used with respect to any Security, the
date on which the Accreted Value of such Security becomes due and payable as
therein provided or as provided in this Indenture, whether at Stated Maturity,
the Offer Date or the Redemption Date and whether by declaration of
acceleration, call for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc. or any
successor rating agency.
"Net Cash Proceeds" means (a) with respect to any Asset Sale
by any Person, the proceeds thereof (without duplication in respect of all Asset
Sales) in the form of cash or Temporary Cash Investments including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed of for, cash or Temporary Cash Investments (except
to the extent that such obligations are financed or sold with recourse to the
Company or any Subsidiary) net of (i) brokerage commissions and other reasonable
fees and expenses (including fees and expenses of counsel and investment
bankers) related to such Asset Sale, (ii) provisions for all taxes payable as a
result of such Asset Sale, (iii) payments made to retire Indebtedness where
payment of such Indebtedness is secured by the assets or properties the subject
of such Asset Sale, (iv) amounts required to be paid to any Person (other than
the Company or any Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by the
Company or any Subsidiary, as the case may be, as a reserve, in accordance with
GAAP, against any liabilities associated with such Asset Sale and retained by
the Company or any Subsidiary, as the case may be, after such Asset Sale,
including, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers' Certificate delivered to the Trustee and (b) with
respect to any issuance or sale of Capital Stock or options, warrants or rights
to purchase Capital Stock, or debt securities or Capital Stock that have been
converted into or exchanged for Capital Stock, as referred to in Sec tion 1009,
the proceeds of such issuance or sale in the form of cash or Temporary Cash
Investments, including payments in respect of deferred payment obligations when
received in the form of, or stock or other assets when disposed of for, cash or
Temporary Cash Investments (except to the extent that such obligations are
financed or sold with recourse to the Company or any Subsidiary), net of
attorneys' fees, accountants' fees and brokerage, consultation, underwriting and
other fees and expenses actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
<PAGE>
11
"Officers' Certificate" means a certificate signed by the
Chairman, Chairman of the Board, Vice Chairman, the President, the Chief
Executive Officer, the Chief Operating Officer, the CEO or a Vice President
(regardless of Vice Presidential designation), and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or the Trustee, unless an Opinion of Independent
Counsel is required pursuant to the terms of this Indenture, and who shall be
acceptable to the Trustee.
"Opinion of Independent Counsel" means a written opinion of
counsel issued by someone who is not an employee or consultant (other than
non-employee legal counsel) of the Company and who shall be reasonably
acceptable to the Trustee.
"Original Issue Price" means, with respect to any Security,
the amount designated as original issue price on the face of such Security.
"Outstanding" when used with respect to Securities means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, 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 reasonably satisfactory to the Trustee has been
made;
(c) Securities, except to the extent provided in Sections 402
and 403, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Four; and
(d) 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 and the Company proof reasonably satisfactory to each
of them that such Securities are held by a bona fide purchaser in whose hands
the Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
Accreted Value of Outstanding Securities have given any request, demand,
authorization, direction,
<PAGE>
12
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the reasonable satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Pari Passu Indebtedness" means any Indebtedness of the
Company that is PARI PASSU in right of payment to the Securities.
"Paying Agent" means any Person (including the Company)
authorized by the Company to pay the Accreted Value of, premium, if any, or
interest on any Securities on behalf of the Company.
"Permitted Holders" means as of the date of determination: (i)
any of [TO BE DETERMINED] (ii) general partners, officers, directors or
Affiliates of any of the Persons described in clause (i); (iii) family members
or relatives of the Persons described in clause (ii); (iv) any trusts created
for the benefit of the Persons described in clause (ii) or (iii); (v) in the
event of incompetence or death of any of the Persons described in clause (ii) or
(iii), such Person's estate, executor, administrator, committee or other
personal representative or beneficiaries.
"Permitted Investment" means (i) Investments in any Wholly
Owned Subsidiary or any Person which, as a result of such Investment, (a)
becomes a Wholly Owned Subsidiary or (b) is merged or consolidated with or into,
or transfers or conveys substantially all of its assets to, or is liquidated
into, the Company or any Wholly Owned Subsidiary; (ii) Indebtedness of the
Company or a Subsidiary described under clauses (iv) and (v) of the definition
of "Permitted Indebtedness"; (iii) Temporary Cash Investments; (iv) Investments
acquired by the Company or any Subsidiary in connection with an Asset Sale
permitted under Section 1013 to the extent such Investments are non-cash
proceeds as permitted under such covenant; (v) Investments in or acquisitions of
Capital Stock, indebtedness, securities or other property of any Person (other
than an Affiliate of the Company) received by the Company or a Subsidiary in the
bankruptcy or reorganization of or by such Person or any exchange of such
Investment with the issuer thereof or taken in settlement of or other resolution
of claims or disputes, and, in each case, extensions, modifications and renewals
thereof; and (vi) Investments in existence on the date of this Indenture.
<PAGE>
13
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" means, with respect to any Person, any
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over the Capital Stock of any other class in such Person.
"Purchase Money Liens" means Liens (as such term is defined in
the Credit Facility as of the date hereof) on any item of Equipment (as such
term is defined in the Credit Facility as of the date hereof) acquired after the
date hereof to secure the purchase price thereof, provided that: (a) each such
Lien shall attach only to the property to be acquired; and (b) the debt incurred
in connection with such acquisitions shall not exceed ninety percent (90%) of
the amount of the purchase price of such items of Equipment then being financed.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any Capital Stock that,
either by its terms or by the terms of any security into which it is convertible
or exchangeable or otherwise, is or upon the happening of an event or passage of
time would be, required to be redeemed prior to any Stated Maturity of the
Accreted Value of the Securities or is redeemable at the option of the holder
thereof at any time prior to any such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to any such Stated Maturity
at the option of the holder thereof.
"Redemption Date" when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the date fixed for
such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to
be redeemed pursuant to any provision in this Indenture means the price at which
it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the April 15th or October 15th (whether or not a Business
Day) next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office or the agent of the
Trustee appointed hereunder, including any vice president, assistant vice
president, assistant secretary, or any
<PAGE>
14
other officer or assistant officer of the Trustee or the agent of the Trustee
appointed hereunder to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with the particular subject.
"Restricted Payment" has the meaning specified in Section
1009.
"S&P" means Standard & Poor's Corporation or any successor
rating agency.
"Sale and Leaseback Transaction" means any transaction or
series of related transactions pursuant to which the Company or a Subsidiary
sells or transfers any property or asset in connection with the leasing, or the
resale against installment payments, of such property or asset to the seller or
transferor.
"Securities" has the meaning specified in the first recital of
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute.
"Senior Debt" means all Indebtedness of the Company other than
Subordinated Indebtedness.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Indebtedness
or any installment of interest thereon, means the dates specified in such
Indebtedness as the fixed date on which the principal (or Accreted Value, as
applicable) of such Indebtedness or such installment of interest, as the case
may be, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
subordinated in right of payment to the Securities.
"Subsidiary" means any Person, a majority of the equity
ownership or the Voting Stock of which is at the time owned, directly or
indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries.
"Temporary Cash Investments" means (i) any evidence of
Indebtedness, maturing not more than one year after the date of acquisition,
issued by the United States of America, or an instrumentality or agency thereof
and guaranteed fully as to principal,
<PAGE>
15
premium, if any and interest by the United States of America or that are subject
to a repurchase agreement with an institution described in clause (ii) below
exercisable within 270 days, (ii) any certificate of deposit, maturing not more
than one year after the date of acquisition, issued by, or time deposit of, a
commercial banking institution that is a member of the Federal Reserve System
and that has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment
therein is made, of "P-1" according to Moody's Investors Service, Inc.
("Moody's") or any successor rating agency or "A-1" according to Standard &
Poor's Corporation ("S&P") or any successor rating agency, (iii) commercial
paper, maturing not more than one year after the date of acquisition, issued by
a corporation (other than an Affiliate or Subsidiary of the Company) organized
and existing under the laws of the United States of America with a rating, at
the time as of which any investment therein is made, of "P-1" according to
Moody's or "A-1" according to S&P and (iv) any money market deposit accounts
issued or offered by a domestic commercial bank having capital and surplus in
excess of $500,000,000; PROVIDED that the short term debt of such commercial
bank has a rating, at the time of investment, of "P-1" (or higher) according to
Moody's or "A-1" (or higher) according to S&P.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended, or any successor statute.
"Trustee" means, except as set forth in Section 405 hereof,
the Person named as the "Trustee" in the first paragraph of this Indenture,
until a successor trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean such successor
trustee.
"Voting Stock" means Capital Stock of the class or classes
pursuant to which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of a corporation (irrespective of whether or not at the
time Capital Stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
"Wholly Owned Subsidiary" means a Subsidiary all the Capital
Stock of which is owned by the Company or another Wholly Owned Subsidiary.
Section 102. OTHER DEFINITIONS.
TERM DEFINED IN SECTION
---- ------------------
"Act" 105
"Change of Control Offer" 1015
"Change of Control Purchase Date" 1015
"Change of Control Purchase Notice" 1015
"Change of Control Purchase Price" 1015
<PAGE>
16
"covenant defeasance" 403
"Defaulted Interest" 307
"defeasance" 402
"Defeasance Redemption Date" 404
"Defeased Securities" 401
"Deficiency" 1013
"Excess Proceeds" 1013
"incur" 1008
"Offer" 1013
"Offer Date" 1013
"Offered Price" 1013
"Pari Passu Debt Amount" 1013
"Pari Passu Offer" 1013
"Incur" 1008
"Permitted Indebtedness" 1008
"refinancing" 1008
"Required Filing Dates" 1020
"Special Amount" 1013
"Special Payment Date" 307
"Surviving Entity" 801
"U.S. Government Obligations" 404
Section 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company and any
other obligor on the Securities (if applicable) shall furnish to the Trustee an
Officers' Certificate in form and substance reasonably acceptable to the Trustee
stating that all conditions precedent, if any, provided for in this Indenture
(including any covenant compliance with which constitutes a condition precedent)
relating to the proposed action have been complied with, and an Opinion of
Counsel in form and substance reasonably acceptable to the Trustee stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that, in the case of any such application or request as to
which the furnishing of such certificates or opinions is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement that each individual signing such certificate
or individual or firm signing such opinion has read such covenant or condition
and the definitions herein relating thereto;
<PAGE>
17
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of each such individual
or such firm, he or it has made such examination or investigation as is
necessary to enable him or it 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, in the opinion of each such
individual or such firm, such condition or covenant has been complied with.
Section 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or
other obligor on the Securities may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion may be based, insofar as it relates to factual matters,
upon a certificate or opinion of, or representations by, an officer or officers
of the Company or other obligor on the Securities stating that the information
with respect to such factual matters is in the possession of the Company or
other obligor on the Securities, unless such officer or counsel knows, or in the
exercise of reasonable care should know that the certificate or opinion or
representations with respect to such matters are erroneous. Opinions of Counsel
required to be delivered to the Trustee may have qualifications customary for
opinions of the type required and counsel delivering such Opinions of Counsel
may rely on certificates of the Company or government or other officials
customary for opinions of the type required, including certificates certifying
as to matters of fact, including that various financial covenants have been
complied with.
Any certificate or opinion of an officer of the Company or
other obligor on the Securities may be based, insofar as it relates to
accounting matters, upon a certificate or opinion of or representations by an
accountant or firm of accountants in the employ of the Company, unless such
officer knows or in the exercise of reasonable care should know that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate or opinion may be based are erroneous. Any
certificate or opinion of
<PAGE>
18
any independent firm of public accountants filed with the Trustee shall contain
a statement that such firm is independent with respect to the Company.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Section 105. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section 105.
(b) The ownership of Securities shall be proved by the
Security Register.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security or the Holder of every Security issued upon
the transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, suffered or omitted to be done by the Trustee, any Paying Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
(d) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate of affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its
<PAGE>
19
option, by or pursuant to a Board Resolution, fix in advance a record date for
the determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding Trust Indenture Act Section
316(c), any such record date shall be the record date specified in or pursuant
to such Board Resolution, which shall be a date not more than 30 days prior to
the first solicitation of Holders generally in connection therewith and no later
than the date such solicitation is completed.
If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for purposes of
determining whether Holders of the requisite proportion of Securities then
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for this
purpose the Securities then Outstanding shall be computed as of such record
date; PROVIDED that no such request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
Section 106. NOTICES, ETC., TO THE TRUSTEE, THE COMPANY.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company or any other
obligor on the Securities shall be sufficient for every purpose (except as
provided in Section 501(c)) hereunder if in writing and mailed, first-class
postage prepaid, or delivered by recognized overnight courier, to or with the
Trustee at its Corporate Trust Office, at 114 West 47th Street, 15th Floor, New
York, New York 10036, Attention: Corporate Trust Department, or at any other
address previously furnished in writing to the Holders, the Company or any other
obligor on the Securities by the Trustee; or
(b) the Company by the Trustee or any Holder shall be
sufficient for every purpose (except as provided in Section 501(c)) hereunder if
in writing and mailed, first-class postage prepaid, or delivered by recognized
overnight courier, to the Company addressed to it at 2500 Halsey Street, Bronx,
New York, 10461, Attention: Robert Glass or at any other address previously
furnished in writing to the Trustee by the Company.
Section 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing
<PAGE>
and mailed, first-class postage prepaid, or delivered by recognized overnight
courier, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice when mailed
to a Holder in the aforesaid manner shall be conclusively deemed to have been
received by such Holder whether or not actually received by such Holder. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or
by reason of any other cause, it shall be impracticable to mail notice of any
event as required by any provision of this Indenture, then any method of giving
such notice as shall be reasonably satisfactory to the Trustee shall be deemed
to be a sufficient giving of such notice.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
any provision of the Trust Indenture Act or another provision which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, the provision or requirement of the Trust Indenture Act shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
<PAGE>
21
Section 112. 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, any Paying Agent and the Holders) any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 113. GOVERNING LAW.
This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York (without giving
effect to the conflicts of laws principles thereof).
Section 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Maturity or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or Accreted Value or premium, if any, need not be made on
such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Maturity or Stated Maturity and no interest shall accrue with respect to
such payment for the period from and after such Interest Payment Date,
Redemption Date, Maturity or Stated Maturity, as the case may be, to the next
succeeding Business Day.
Section 115. INDEPENDENCE OF COVENANTS.
All covenants and agreements in this Indenture shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitations of, another covenant shall not avoid the
occurrence of a Default or an Event of Default if such action is taken or
condition exists.
Section 116. SCHEDULES AND EXHIBITS.
All schedules and exhibits attached hereto are by this
reference made a part hereof with the same effect as if herein set forth in
full.
Section 117. COUNTERPARTS.
This Indenture may be executed in any number of counterparts,
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
<PAGE>
22
ARTICLE II
SECURITY FORMS
Section 201. FORMS GENERALLY.
The Securities and the Trustee's certificate of authentication
thereon shall be in substantially the forms set forth in this Article Two, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by the 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, any
organizational document or governing instrument or applicable law or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. FORM OF FACE OF SECURITY.
(a) The form of the face of the Securities shall be
substantially as follows:
[If a Global Security to be held by The Depository Trust Company, then
insert -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[If a Global Security, then insert -- THIS IS A GLOBAL SECURITY
WITHIN THE MEANING OF THE INDENTURE. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL
SECURITY SHALL NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE
<PAGE>
23
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
LOEHMANN'S HOLDINGS INC.
---------------
11% SENIOR NOTE DUE 2005
No.__________ $__________ Original Issue Price
CUSIP No.__________
LOEHMANN'S HOLDINGS INC., a Delaware corporation (herein
called the "Company," which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to _________________ or registered assigns, the Accreted Value of this Security
on December __, 2005,(1) at the office or agency of the Company referred to
below, and to pay interest on such Accreted Value from September __, 2000, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semiannually on April 30 and October 31, in each year,
commencing April 30, 2001 at the rate of 11% per annum, in United States
dollars or through the addition of such interest to the Accreted Value as
described herein, until the Accreted Value hereof is paid or duly provided
for. Interest shall be computed on the basis of a 360-day year of twelve
30-day months. The "Accreted Value" of this Security, as of any date of
determination, is defined as the sum of (i) the Original Issue Price of this
Security and (ii) any interest in respect of this Security added to such
Accreted Value pursuant to Section 301 of the Indenture and the terms of this
Security. Initially, the amount under clause (ii) of the previous sentence
shall be zero.
The interest so payable in cash, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be April 15th or October 15th (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid, or duly provided for, and interest on
such defaulted interest at the interest rate borne by the Securities, to the
extent lawful, shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may be paid to the Person in whose name this Security (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any
--------------
(1) This date will be 5 years and 90 days after the first issuance of the
Securities under the Indenture.
<PAGE>
24
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the Accreted Value of, premium, if any, and
interest payable in cash on this Security will be made at the office or agency
of the Company maintained for that purpose in the City of New York, or at such
other office or agency as may be maintained for such purpose, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that payment
of interest payable in cash may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as such address shall
appear on the Security Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by the Trustee referred to on the reverse hereof or by the
authenticating agent appointed as provided in the Indenture by manual signature,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
<PAGE>
25
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed by the manual or facsimile signature of its authorized officers
and its corporate seal to be affixed or reproduced hereon.
Dated: LOEHMANN'S HOLDINGS INC.
By:
----------------------------------------
Title:
-------------------------------------
Attest:
[SEAL]
----------------------------
Authorized Officer
<PAGE>
26
Section 203. FORM OF REVERSE OF SECURITIES.
(a) The form of the reverse of the Securities shall be
substantially as follows:
This Security is one of a duly authorized issue of Securities
of the Company designated as its 11% Senior Notes due 2005 (herein called the
"Securities"), limited (except as otherwise provided in the Indenture referred
to below) in aggregate Original Issue Price to $25,000,000, issued under and
subject to the terms of an indenture (herein called the "Indenture") dated as of
September __, 2000, among the Company and United States Trust Company of New
York, as trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties, obligations and immunities thereunder of the
Company, the Trustee and the Holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
Interest on the Securities shall be payable as follows: (1)
the first payment of interest due on April 30, 2001 shall be paid through the
addition of such interest to the Accreted Value of the Securities on such date;
(2) thereafter, the Company shall have the option to pay interest on the
Securities on each Interest Payment Date either in cash or through the addition
of such interest to the Accreted Value of the Securities on the applicable
Interest Payment Date; PROVIDED THAT the Company shall be required to pay
interest on the Securities in cash on any particular Interest Payment Date if,
as of such Interest Payment Date, the Company would have had, on a pro forma
basis, positive Free Cash Flow assuming that interest on the Securities and any
Matching Amortization Payments required to be paid under the Credit Facility had
been paid by the Company in cash as of each such Interest Payment Date during
the twelve calendar months ending on the January 31 or July 31 immediately
preceding the April 30 or October 31 Interest Payment Date, as the case may be.
With respect to any payment of interest on the Securities by
the addition of such interest to the Accreted Value of the Securities, the
Company shall notify the Trustee in writing of its election to pay interest
through the addition of such interest to the Accreted Value of the Securities
and the aggregate amount of such interest not less than 5 nor more than 45 days
prior to the Regular Record Date for the Interest Payment Date on which
accretion will occur. If the Company pays interest through the addition of such
interest to the Accreted Value, then on the applicable Interest Payment Date the
Accreted Value of this Security shall increase by the amount of such interest,
and such interest payment shall be deemed to have been made for all purposes of
the Securities and the Indenture.
The Indenture contains provisions for defeasance at any time
of (a) the entire Indebtedness on the Securities and (b) certain restrictive
covenants and related
<PAGE>
27
Defaults and Events of Default, in each case upon compliance with certain
conditions set forth therein.
The Securities are subject to redemption at any time at the
option of the Company, in whole or in part, on not less than 30 nor more than 60
days' prior notice to the Holders by first-class mail in amounts of Accreted
Value with an Original Issue Price of $100 or an integral multiple of $100 at
the following redemption prices (expressed as a percentage of the Accreted
Value, if redeemed during the 12-month period beginning September __ of the
years indicated below:
Redemption
YEAR PRICE
---- ----------
2000 102.000%
2001 101.000%
2002 and thereafter 100.000%
in each case, together with accrued and unpaid interest, if
any, to the Redemption Date (subject to the right of Holders of record on
relevant Regular Record Dates or Special Record Dates to receive interest due on
an Interest Payment Date). If less than all of the Securities are to be
redeemed, the Trustee shall select the Securities or portions thereof to be
redeemed in compliance with the requirements of the principal national
securities exchange, if any, on which the Securities being redeemed are listed,
or if the Securities are not listed on a national securities exchange, pro rata,
by lot or by any other method the Trustee shall deem fair and reasonable.
Upon the occurrence of a Change of Control, each Holder may
require the Company to repurchase all or a portion of such Holder's Securities
in an amount of Accreted Value with an Original Issue Price of $100 or integral
multiples of $100, at a purchase price in cash equal to 101% of the Accreted
Value thereof, together with accrued and unpaid interest, if any, to the date of
repurchase.
Under certain circumstances, in the event the Net Cash
Proceeds received by the Company from any Asset Sale, which proceeds are not
used to repay Indebtedness under the Credit Facility or invested in properties
or assets used in the businesses of the Company or reasonably related thereto,
equals or exceeds a specified amount the Company will be required to apply such
proceeds to the repayment of the Securities and certain Indebtedness ranking
PARI PASSU to the Securities.
In the case of any redemption or repurchase of Securities in
accordance with the Indenture, cash interest installments whose Stated Maturity
is on or prior to the Redemption Date will be payable to the Holders of such
Securities of record as of the close of business on the relevant Regular Record
Date or Special Record Date referred to on the face hereof. Securities (or
portions thereof) for whose redemption and payment
<PAGE>
28
provision is made in accordance with the Indenture shall cease to bear interest
from and after the Redemption Date.
In the event of redemption or repurchase of this Security in
accordance with the Indenture in part only, a new Security or Securities for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, the
Accreted Value of all the Securities may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions (including
certain amendments permitted without the consent of any Holders) as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders under the Indenture and
the Securities and the Securities at any time by the Company and the Trustee
with the consent of the Holders of a specified percentage in aggregate Accreted
Value of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate Accreted
Value of the Securities at the time Outstanding, on behalf of the Holders of all
the Securities, to waive compliance by the Company with certain provisions of
the Indenture and the Securities and certain past Defaults under the Indenture
and the Securities and their consequences. Any such consent or waiver by or on
behalf of the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Company
or any other obligor on the Securities (in the event such other obligor is
obligated to make payments in respect of the Securities), which is absolute and
unconditional, to pay the Accreted Value of, premium, if any, and interest on
this Security at the times, place, and rate, and in the coin or currency, herein
prescribed, subject to the subordination provisions of the Indenture.
The Securities are issuable only in registered form without
coupons in denominations of Accreted Value with $100 of Original Issue Price and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Securities are exchangeable for a
like aggregate Accreted Value of Securities of a different authorized
denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable on
the Security Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company maintained for
such purpose in The City of New York or at such other office or
<PAGE>
29
agency of the Company as may be maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate Accreted Value, will be
issued to the designated transferee or transferees.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to and at the time of due presentment of this Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name this Security is
overdue, and neither the Company, the Trustee nor any agent shall be affected by
notice to the contrary.
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
All terms used in this Security which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
Section 204. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be included
on the form of the face of the Securities substantially in the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
<PAGE>
30
This is one of the Securities referred to in the within
mentioned Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:
------------------------
Authorized Officer
<PAGE>
31
ARTICLE III
THE SECURITIES
Section 301. TITLE AND TERMS.
The aggregate Original Issue Price of Securities which may be
authenticated and delivered under this Indenture is limited to $25,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, other Securities pursuant to Section 303,
304, 305, 306, 906, 1013, 1015 or 1108.
The Securities shall be known and designated as the "11%
Senior Notes due 2005" of the Company. The Stated Maturity of the Securities
shall be December __, 2005,(1) and the Securities shall each bear interest at
the rate of 11% on the Accreted Value thereof from September __, 2000 or from
the most recent Interest Payment Date to which interest has been paid, as the
case may be, payable on April 30, 2001 and semiannually thereafter on October
31st and April 30th, in each year, until the Accreted Value thereof is paid
or duly provided for. Interest on any overdue Accreted Value, interest (to
the extent lawful) or premium, if any, shall be payable on demand.
Interest on the Securities shall be payable as follows: (1)
the first payment of interest due on April 30, 2001 shall be paid through the
addition of such interest to the Accreted Value of the Securities on such date;
(2) thereafter, the Company shall have the option to pay interest on the
Securities on each Interest Payment Date either in cash or through the addition
of such interest to the Accreted Value of the Securities on the applicable
Interest Payment Date; PROVIDED THAT the Company shall be required to pay
interest on the Securities in cash on any particular Interest Payment Date if,
as of such Interest Payment Date, the Company would have had, on a pro forma
basis, positive Free Cash Flow assuming that interest on the Securities and any
Matching Amortization Payments required to be paid under the Credit Facility had
been paid by the Company in cash as of each such Interest Payment Date during
the twelve calendar months ending on the January 31 or July 31 immediately
preceding the April 31 or October 30 Interest Payment Date, as the case may be.
With respect to any payment of interest on the Securities by
the addition of such interest to the Accreted Value of the Securities, the
Company shall notify the Trustee in writing of its election to pay interest
through the addition of such interest to the Accreted Value of the Securities
and the aggregate amount of such interest not less than 5 nor more than 45 days
prior to the Regular Record Date for the Interest Payment Date on which
accretion will occur. If the Company pays interest through the addition of such
interest to the Accreted Value, then on the applicable Interest Payment Date the
Accreted Value of the Securities shall increase by the amount of such interest,
and such interest payment shall be deemed to have been made for all purposes of
the Securities and this Indenture.
--------------
(1) This date will be 5 years and 90 days after the first issuance of the
Securities under this Indenture.
<PAGE>
32
The Accreted Value of, premium, if any, and interest payable
in cash on the Securities shall be payable at the office or agency of the
Company maintained for such purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose; PROVIDED,
HOWEVER, that at the option of the Company interest payable in cash may be paid
by check mailed to addresses of the Persons entitled thereto as such addresses
shall appear on the Security Register.
The Securities shall be subject to repurchase by the Company
pursuant to an Offer as provided in Section 1013.
Holders shall have the right to require the Company to
purchase their Securities, in whole or in part, in the event of a Change of
Control pursuant to Section 1015.
The Securities shall be redeemable as provided in Article
Eleven and in the Securities.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Four.
Section 302. DENOMINATIONS.
The Securities shall be issuable only in registered form
without coupons and only in denominations of Accreted Value with $100 of
Original Issue Price and any integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by
one of its Chairman, Chairman of the Board, its President, its Chief Executive
Officer, its Chief Operating Officer, the CEO or one of its Vice Presidents
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signatures of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for
<PAGE>
33
authentication, together with a Company Order for the authentication and
delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as provided in this
Indenture and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
The Company shall execute and the Trustee shall authenticate
one or more Global Securities that (i) shall represent an aggregate amount equal
to the aggregate principal amount of such of the Outstanding Securities as the
Company shall have directed the Trustee to authenticate in the form of a Global
Security or Global Securities, (ii) shall be registered in the name of the
Depositary or the nominee of the Depositary, (iii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositary's instruction and (iv)
shall bear a legend substantially to the following effect (or in the form
required by the Depositary): "THIS IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE
INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY SHALL NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OF SUCH SUCCESSOR DEPOSITARY."
The Depositary must, at all times while it serves as such
Depositary, be a clearing agency registered under the Securities Exchange Act of
1934, as, amended, and any other applicable statute or regulation.
In case the Company, pursuant to Article Eight, shall be
consolidated or merged with or into any other Person or shall sell, assign,
convey, transfer, lease or otherwise dispose of substantially all of its
properties and assets to any Person, and the successor Person resulting from
such consolidation or surviving such merger, or into which the Company shall
have been merged, or the successor Person which shall have participated in the
sale, assignment, conveyance, transfer, lease or other disposition as aforesaid,
shall have executed an indenture supplemental hereto with the Trustee pursuant
to Article Eight, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other
disposition may, from time to time, at the request of the successor Person, be
exchanged for other
<PAGE>
34
Securities executed in the name of the successor Person with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Securities surrendered for such exchange and of like Accreted
Value; and the Trustee, upon Company Request of the successor Person, shall
authenticate and deliver Securities as specified in such request for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a successor Person pursuant to this Section 303 in exchange
or substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities on behalf of the Trustee. Unless limited
by the terms of such appointment, 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 any Security Registrar or Paying
Agent to deal with the Company and its Affiliates.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 1002 (or in accordance with Section 303, in the case of
initial Securities), without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
Accreted Value of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause the Trustee to keep, so long as it is
the Security Registrar, at the Corporate Trust Office of the Trustee, or such
other office as the Trustee may designate, a register (the register maintained
in such office or in any other office or
<PAGE>
35
agency designated pursuant to Section 1002 being herein sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as the
Security Registrar may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee shall initially be the
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided. The Company may appoint one or more
co-registrars.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 1002, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations, of a like aggregate Accreted
Value.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate Accreted Value, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer, or for exchange or redemption shall (if so required by the Company or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange or redemption of Securities, but the
Company may require payment of a sum sufficient to pay all documentary, stamp or
similar issue or transfer taxes or other governmental charges that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 303, 304, 305, 306, 906,
1013, 1015 or 1108 not involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of the Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing or (b) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the unredeemed
portion of Securities being redeemed in part.
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36
Notwithstanding the foregoing, any Global Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 at a time when such Depositary is required to be so
registered in order to act as Depositary, (ii) the Company executes and delivers
to the Trustee a Company Order that such Global Security shall be so
exchangeable or (iii) there shall have occurred and be continuing a Default or
an Event of Default with respect to the Securities. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable for
Securities registered in such names as such Depositary shall direct.
Notwithstanding any other provision of this Section 305,
unless and until it is exchanged in whole or in part for the individual
Securities represented thereby, a Global Security representing all or a portion
of the Securities shall not be transferred except as a whole by the Depositary
to a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless otherwise provided as contemplated by Section 301 with
respect to any series of Securities evidenced in whole or in part by a Global
Security, the Depositary may not sell, assign, transfer or otherwise convey any
beneficial interest in a Global Security evidencing all or part of the
Securities or such series unless such beneficial interest is in an amount equal
to an authorized denomination for Securities of such series.
Upon the exchange of a Global Security for individual
Securities, such Global Security shall be cancelled by the Trustee. Individual
Securities issued in exchange for a Global Security pursuant to this Section 305
shall be registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee and
the Company shall not have any liability for the accuracy of the instructions
received from the Depository. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
Neither the Company nor the Trustee shall have any
responsibility or obligation to any participant in the Depositary, any Person
claiming a beneficial ownership interest in the Securities under or through the
Depositary or any such participant, or any other Person which is not shown on
the Security Register as being a Holder with respect to (1) the Securities; (2)
the accuracy of any records maintained by the Depositary or any such
participant; (3) the payment by the Depositary or any such participant of any
amount in respect of the Accreted Value of or premium or interest on the
Securities; (4) any notice which is permitted or required to be given to Holders
of Securities under this Indenture; (5) the selection by the Depositary or any
such participant of any Person to receive
<PAGE>
37
payment in the event of a partial redemption of the Securities; or (6) any
consent given or other action taken by the Depositary as Holder of Securities.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If (a) any mutilated Security is surrendered to the Trustee,
or (b) the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee, such security or indemnity, in each case, as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon a Company Request the Trustee
shall authenticate and deliver, in exchange for any such mutilated Security or
in lieu of any such destroyed, lost or stolen Security, a replacement Security
of like tenor and Accreted Value, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a replacement Security, pay such Security.
Upon the issuance of any replacement Securities under this
Section, the Company may require the payment of a sum sufficient to pay all
documentary, stamp or similar issue or transfer taxes or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every replacement Security issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable in cash, and is
punctually paid or duly provided for, on the Stated Maturity of such interest
shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest payment.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on the Stated Maturity of such Security
and interest on such defaulted
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38
interest at the then applicable interest rate borne by the Securities, to the
extent lawful (such defaulted interest and interest thereon herein collectively
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the Regular Record Date; and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Subsection (a) or (b)
below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or the irrespective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security, whether the
Company elects to pay such Defaulted Interest in cash or, to the extent
permitted under Section 301, through the addition of such interest to the
Accreted Value of the Securities, and the date (not less than 30 days after such
notice) of the proposed payment (the "Special Payment Date"), and at the same
time, if the Company has elected or is required to pay such Defaulted Interest
in cash, the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit prior to
the Special Payment Date, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Subsection
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the Special Payment Date and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company in writing of such Special Record
Date. In the name and at the expense of the Company, the Trustee shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date thereof to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Payment Date therefor having
been so mailed, such Defaulted Interest payable in cash shall be paid to the
Persons in whose names the Securities are registered on such Special Record Date
in cash, and shall no longer be payable pursuant to the following Subsection
(b). If the Company elects to pay such Defaulted Interest through the addition
of such Defaulted Interest to the Accreted Value, then on the Special Payment
Date the Accreted Value of the Securities shall increase by the amount of such
Defaulted Interest, and such Defaulted Interest payment shall be deemed to have
been made for all purposes of the Securities and this Indenture.
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after written notice given by the Company to the
Trustee of the proposed payment pursuant to this Subsection, such payment shall
be deemed practicable by the Trustee.
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39
Subject to the foregoing provisions of this Section 307, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name any Security is registered as the owner of
such Security for the purpose of receiving payment of Accreted Value of,
premium, if any, and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 309. CANCELLATION.
All Securities surrendered for payment, purchase, redemption,
registration of transfer or exchange shall be delivered to the Trustee and, if
not already cancelled, shall be promptly cancelled by it. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section 309, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be destroyed and certification of their destruction delivered to
the Company, unless by a Company Order received by the Trustee prior to such
destruction, the Company shall direct that the cancelled Securities be returned
to it. The Trustee shall provide the Company a list of all Securities that have
been cancelled from time to time as requested by the Company.
Section 310. COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
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40
ARTICLE IV
DEFEASANCE AND COVENANT DEFEASANCE
Section 401. COMPANY'S OPTION TO EFFECT DEFEASANCE OR COVENANT
DEFEASANCE.
The Company may, at its option by Board Resolution, at any
time, with respect to the Securities, elect to have either Section 402 or
Section 403 be applied to all of the Outstanding Securities (the "Defeased
Securities"), upon compliance with the conditions set forth below in this
Article Four.
Section 402. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 402, the Company and any other obligor upon the
Securities, if any, shall be deemed to have been discharged from its obligations
with respect to the Defeased Securities on the date the conditions set forth in
Section 404 below are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company and any other obligor upon the Securities
shall be deemed to have paid and discharged the entire Indebtedness represented
by the Defeased Securities, which shall thereafter be deemed to be "Outstanding"
only for the purposes of Section 405 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, and, upon Company
Request, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Securities to receive, solely
from the trust fund described in Section 404 and as more fully set forth in such
Section, payments in respect of the Accreted Value of, premium, if any, and
interest on such Securities when such payments are due, (b) the Company's
obligations with respect to such Defeased Securities under Sections 304, 305,
306, 1002 and 1003, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder, including, without limitation, the Trustee's rights under
Section 606, and (d) this Article Four. Subject to compliance with this Article
Four, the Company may exercise its option under this Section 402 notwithstanding
the prior exercise of its option under Section 403 with respect to the
Securities.
Section 403. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 401 of the option
applicable to this Section 403, the Company shall be released from its
obligations under any covenant or provision contained or referred to in Sections
1005 through 1018, inclusive, the provisions of clause (iii) of Section 801 and
the provisions of clauses (c)(i) (as it applies to the provisions of clause
(iii) of Section 801), (d) and (e) of Section 501, with respect to the Defeased
Securities on and after the date the conditions set forth in Section 404 below
are
<PAGE>
41
satisfied (hereinafter, "covenant defeasance"), and the Defeased Securities
shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
Article, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 501 but, except as specified above, the remainder of this
Indenture and such Defeased Securities shall be unaffected thereby.
Section 404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of either
Sec tion 402 or Section 403 to the Defeased Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
'Sec tion 608 who shall agree to comply with the provisions of this Article Four
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) United States dollars in
an amount, (b) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms and
with no further reinvestment will provide, not later than one day before the due
date of any payment, money in an amount, or (c) a combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants or a nationally recognized investment banking
firm expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge the Accreted Value of, premium, if any,
and interest on the Defeased Securities on the defeasance date specified by the
Company (such date being referred to as the "Defeasance Redemption Date") if
when exercising under Section 401 either its option applicable to Section 402 or
its option applicable to Section 403, the Company shall have delivered to the
Trustee an irrevocable notice to redeem all of the Outstanding Securities on the
Defeasance Redemption Date); PROVIDED that the Trustee (or such qualifying
trustee) shall have been irrevocably instructed to apply such United States
dollars or the proceeds of such U.S. Government Obligations to said payments
with respect to the Securities. For this purpose, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United States of America
for the timely payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of
<PAGE>
42
America, which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act), as custodian with respect
to any such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for the
account of the holder of such depository receipt, PROVIDED that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation or the specific
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depository receipt.
(2) In the case of an election under Section 402, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this Indenture, there has been a change in the applicable federal income tax
law, in either case to the effect that, and based thereon such Opinion of
Independent Counsel in the United States shall confirm that, the Holders of the
Outstanding Securities will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(3) In the case of an election under Section 403, the Company
shall have delivered to the Trustee an Opinion of Independent Counsel in the
United States to the effect that the Holders of the Outstanding Securities will
not recognize income, gain, or loss for federal income tax purposes as a result
of such covenant defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(4) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as subsections 501(h) and (i)
are concerned, at any time during the period ending on the 91st day after the
date of deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities to have a conflicting interest as defined in this
Indenture and for purposes of the Trust Indenture Act with respect to any
securities of the Company (assuming the Securities are in default within the
meaning of said Act).
(6) Such defeasance or covenant defeasance shall not result in
a breach or violation of or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any Subsidiary is
a party or by which it is bound.
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43
(7) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940, as amended, unless such trust
shall be registered under such Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an Opinion
of Independent Counsel to the effect that after the 91st day following the
deposit, the trust funds will not be subject to the effect of any applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the holders of the Securities over the other creditors
of the Company with the intent of defeating, hindering, delaying or defrauding
creditors of the Company or others.
(10) No event or condition shall exist that would prevent the
Company from making payments of the Accreted Value of, premium, if any, and
interest on the Securities on the date of such deposit or at any time ending on
the 91st day after the date of such deposit.
(11) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Independent Counsel in the United
States, each stating that all conditions precedent provided for relating to
either the defeasance under Section 402 or the covenant defeasance under Section
403 (as the case may be) have been complied with as contemplated by this Section
404.
Opinions of Counsel or Opinions of Independent Counsel
required to be delivered under this Section may have qualifications customary
for opinions of the type required and counsel delivering such opinions may rely
on certificates of the Company or government or other officials customary for
opinions of the type required, which certificates shall be limited as to matters
of fact, including that various financial covenants have been complied with.
Section 405. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee --
collectively for purposes of this Section 405, the "Trustee") pursuant to
Section 404 in respect of the Defeased Securities shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(excluding the Company or any of its Affiliates acting as Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in
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44
respect of Accreted Value, premium, if any, and interest. The Trustee shall not
be required to invest any moneys received by the Trustee, except in accordance
with the written directions of the Company. Money so held in trust shall not be
subject to the provisions of Article Twelve.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Defeased Securities.
Anything in this Article Four to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any United States dollars or U.S. Government Obligations held by it as
provided in Section 404 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect defeasance or covenant defeasance.
Section 406. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United
States dollars or U.S. Government Obligations in accordance with Section 402 or
403, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 402 or 403, as the case may be, until such time as the
Trustee or Paying Agent is permitted to apply all such United States dollars or
U.S. Government Obligations in accordance with Sec tion 402 or 403, as the case
may be; PROVIDED, HOWEVER, that if the Company makes any payment to the Trustee
or Paying Agent of Accreted Value, premium, if any, or interest on any Security
following the reinstatement of its obligations, the Trustee or Paying Agent
shall promptly pay any such amount to the Holders of the Securities and the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the United States dollars and U.S. Government
Obligations held by the Trustee or Paying Agent.
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45
ARTICLE V
REMEDIES
Section 501. EVENTS OF DEFAULTS.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) there shall be a default in the payment of any interest on
any Security when it becomes due and payable, and such default shall continue
for a period of 30 days;
(b) there shall be a default in the payment of the Accreted
Value of (or premium, if any, on) any Security at its Maturity (upon
acceleration, optional or mandatory redemption, required repurchase or
otherwise);
(c) (i) there shall be a default in the performance, or
breach, of any covenant or agreement of the Company under this Indenture (other
than a default in the performance, or breach, of a covenant or agreement which
is specifically dealt with in Subsection (a) or (b) of this Section 501 or in
clauses (ii), (iii) and (iv) of this clause (c) of this Section 501) and such
default or breach shall continue for a period of 30 days after written notice
has been given, by certified mail, (x) to the Company by the Trustee or (y) to
the Company and the Trustee by the Holders of at least 25% aggregate Accreted
Value of the Outstanding Securities, specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; (ii) there shall be a default in the performance or breach
of the provisions of Article Eight; (iii) the Company shall have failed to make
or consummate an Offer in accordance with the provisions of Section 1013; or
(iv) the Company shall have failed to make or consummate a Change of Control
Offer in accordance with the provisions of Section 1015;
(d) one or more defaults in the payment of the principal,
premium, if any, or interest on any Indebtedness shall have occurred under any
agreements, indentures or instruments under which the Company or any Subsidiary
then has outstanding Indebtedness, other than the Credit Facility, which
aggregates in excess of $10,000,000 when the same shall become due and payable
and continuation of such default for any applicable grace period and, if such
Indebtedness has not already matured at its final maturity in accordance with
its terms, the holder of such Indebtedness shall have the right to accelerate
such Indebtedness;
(e) one or more events of default as defined in the Credit
Facility and any of the agreements, indentures or instruments described in
Subsection (d) of this Sec-
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46
tion 501 shall have occurred and the Indebtedness thereunder, if not already
matured at its final maturity in accordance with its terms, shall have been
accelerated;
(f) one or more judgments, orders or decrees for the payment
of money in excess of $10,000,000, either individually or in the aggregate (net
of amounts covered by insurance, bond or similar instrument), shall be rendered
against the Company or any Subsidiary or any of their respective properties and
shall not be discharged and either (a) any creditor shall have commenced an
enforcement proceeding upon such judgment, order or decree or (b) there shall
have been a period of 60 consecutive days during which a stay of enforcement of
such judgment or order, by reason of an appeal or otherwise, shall not be in
effect;
(g) [intentionally omitted];
(h) there shall have been the entry by a court of competent
jurisdiction of (i) a decree or order for relief in respect of the Company or
any Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or (ii) a decree or order adjudging the Company or any Subsidiary
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Subsidiary under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of the
Company or any Subsidiary or of any substantial part of their respective
properties, or ordering the winding up or liquidation of their affairs,
and any such decree or order for relief shall continue to be in effect, or any
such other decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(i) (i) the Company or any Subsidiary commences a voluntary
case or proceeding under any applicable Bankruptcy Law or any other case or
proceeding to be adjudicated bankrupt or insolvent, (ii) the Company or any
Subsidiary consents to the entry of a decree or order for relief in respect of
the Company or such Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, (iii) the Company or any Subsidiary files a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, (iv) the Company or any Subsidiary (1) consents
to the filing of such petition or the appointment of, or taking possession by, a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or such Subsidiary or of any substantial part of their
respective properties, (2) makes an assignment for the benefit of creditors or
(3) admits in writing its inability to pay its debts generally as they become
due, or (v) the Company or any Subsidiary takes any corporate action in
furtherance of any such actions in this paragraph (i).
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47
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default
specified in Sections 501(h) and (i)) shall occur and be continuing, the Trustee
or the Holders of not less than 25% in aggregate Accreted Value of the
Securities Outstanding may, and the Trustee at the request of the Holders of not
less than 25% in aggregate Accreted Value of the Securities Outstanding shall,
declare all unpaid Accreted Value of, premium, if any, and accrued interest on
all the Securities to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders of the Securities) and
upon any such declaration, such principal, premium, if any, and interest shall
become immediately due and payable. If an Event of Default specified in clause
(h) or (i) of Section 501 occurs and is continuing, then all the Securities
shall IPSO FACTO become and be immediately due and payable, in an amount equal
to the Accreted Value of the Securities, together with premium, if any, and
accrued and unpaid interest, if any, to the date the Securities become due and
payable, without any declaration or other act on the part of the Trustee or any
Holder. Thereupon, the Trustee may, at its discretion, proceed to protect and
enforce the rights of the holders of Securities by appropriate judicial
proceedings.
At any time after such declaration of acceleration has been
made, but 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 aggregate Accreted Value of the Securities Outstanding, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all sums paid or advanced by the Trustee under
Sec tion 606 and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Securities,
(iii) the Accreted Value of and premium, if any, on
any Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at a rate borne by the Securities,
and
(iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities; and
(b) all Events of Default, other than the non-payment of
Accreted Value of the Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
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No such rescission shall affect any subsequent Default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(b) default is made in the payment of the Accreted Value of or
premium if any, on any Security at the Stated Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities the whole amount then due and payable on such
Securities for Accreted Value and premium, if any, and interest, with interest
upon the overdue Accreted Value and premium, if any, and, to the extent that
payment of such interest shall be legally enforceable, upon overdue installments
of interest, at the rate borne by the Securities; and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and unpaid
and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders under this Indenture by such appropriate private or judicial
proceedings as the Trustee shall deem most effective to protect and enforce such
rights. No recovery of any such judgment upon any property of the Company shall
affect or impair any rights, powers or remedies of the Trustee or the Holders.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor, upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee
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49
(irrespective of whether the Accreted Value of the Securities shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment
of overdue Accreted Value or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Accreted
Value, and premium, if any, and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and Advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Sec tion 607.
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 thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article or
otherwise on behalf of the Holders or the Trustee pursuant to this Article or
through any proceeding or
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50
any arrangement or restructuring in anticipation or in lieu of any proceeding
contemplated by this Article shall be applied, subject to applicable law, in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of Accreted Value, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities for Accreted Value, premium, if any, and interest, 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 Accreted Value, premium, if any, and interest;
and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, including the Company, provided that all sums due and owing to the
Holders and the Trustee have been paid in full as required by this Indenture.
Section 507. LIMITATION ON SUITS.
No Holder of any Securities shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or the
Securities, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in Accreted Value amount
of the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
trustee hereunder;
(c) such Holder or Holders have offered to the Trustee an
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(d) the Trustee for 30 days after its receipt of such notice,
request and offer (and if requested, provision) of indemnity has failed to
institute any such proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 30-day period by the Holders of a majority
in Accreted Value of the Outstanding Securities;
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51
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture or any Security to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture or any Security,
except in the manner provided in this Indenture and for the equal and ratable
benefit of all the Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE ACCRETED VALUE,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right based on the terms stated herein,
which is absolute and unconditional, to receive payment of the Accreted Value
of, premium, if any, and (subject to Section 307) interest on such Security on
the respective Stated Maturities expressed in such Security (or, in the case of
redemption or repurchase, on the Redemption Date or the repurchase date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, any
other obligor on the Securities, the Trustee and the Holders shall, subject to
any determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein.
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52
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 512. CONTROL BY HOLDERS.
The Holders of not less than a majority in aggregate Accreted
Value of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, PROVIDED
that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture (including, without limitation, Section 507), expose
the Trustee to personal liability, or be unduly prejudicial to Holders not
joining therein; and
(b) subject to the provisions of Section 315 of the Trust
Indenture Act, the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in aggregate Accreted
Value of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past Default hereunder and its consequences, except a
Default
(a) in the payment of the Accreted Value of, premium, if any,
or interest on any Security; or
(b) in respect of a covenant or a provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Security Outstanding affected by such modification or amendment.
Upon any such waiver, such Default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
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53
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in Accreted Value of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the Accreted Value of, premium, if any, or
interest on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
Section 515. WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury or other law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive the Company from paying all or any
portion of the Accreted Value of, premium, if any, or interest on the Securities
contemplated herein or in the Securities or which may affect the covenants or
the performance of this Indenture; and each of the Company (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
Section 516. REMEDIES SUBJECT TO APPLICABLE LAW.
All rights, remedies and powers provided by this Article Five
may be exercised only to the extent that the exercise thereof does not violate
any applicable provision of law in the premises, and all the provisions of this
Indenture are intended to be subject to all applicable mandatory provisions of
law which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Indenture invalid, unenforceable or
not entitled to be recorded, registered or filed under the provisions of any
applicable law.
ARTICLE VI
THE TRUSTEE
Section 601. DUTIES OF TRUSTEE.
Subject to the provisions of Trust Indenture Act Section
315(a) through 315(d):
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54
(a) if a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in its exercise
thereof as a prudent person would exercise or use under the circumstances in the
conduct of his own affairs.
(b) except during the continuance of a Default or an Event of
Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no covenants or
obligations shall be implied in this Indenture that are adverse to the
Trustee; and
(2) in the absence of bad faith or willful misconduct
on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) the Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this Subsection (c) does not limit the effect of
Subsection (b) of this Section 601;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith, in accordance with
a direction of the Holders of a majority in Accreted Value of the
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power confirmed upon the Trustee under this
Indenture.
(d) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
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55
(e) whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
Subsections (a), (b), (c) and (d) of this Section 601.
(f) the Trustee shall not be liable for interest on any money
or assets received by it except as the Trustee may agree with the Company.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
Section 602. NOTICE OF DEFAULTS.
Within 30 days after a Responsible Officer of the Trustee
receives notice of the occurrence of any Default, the Trustee shall transmit by
mail to all Holders and any other persons entitled to receive reports pursuant
to Section 313(c) of the Trust Indenture Act as their names and addresses appear
in the Security Register, notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived;
PROVIDED, HOWEVER, that, except in the case of a Default in the payment of the
Accreted Value of, premium, if any, or interest on any Security, the Trustee
shall be protected in withholding such notice if and so long as a trust
committee of Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders.
Section 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601 hereof and Trust
Indenture Act Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) the Trustee may consult with counsel and any written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders
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56
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred therein or thereby in
compliance with such request or direction;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture other than any
liabilities arising out of the negligence, bad faith or willful misconduct of
the Trustee;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
approval, appraisal, bond, debenture, note, coupon, security or other paper or
document unless requested in writing to do so by the Holders of not less than a
majority in aggregate Accreted Value of the Securities then Outstanding;
PROVIDED that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities as
a condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Company upon demand; PROVIDED FURTHER, the
Trustee in its discretion may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(i) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers.
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57
Section 604. TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITIONS OF
SECURITIES OR APPLICATION OF PROCEEDS THEREOF.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Company are true and accurate subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. TRUSTEE AND AGENTS MAY HOLD SECURITIES; COLLECTIONS; ETC.
The Trustee, any Paying Agent, Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities, with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent and,
subject to Sections 608 and 613 hereof and Trust Indenture Act Sections 310 and
311, may otherwise deal with the Company and receive, collect, hold and retain
collections from the Company with the same rights it would have if it were not
the Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. MONEY HELD IN TRUST.
All moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. The Trustee shall not be required to
invest any moneys received by the Trustee, except in accordance with the written
directions of the Company.
Section 607. COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR
CLAIM.
The Company covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, reasonable compensation for
all services rendered by it hereunder (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Company covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all agents and other
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence, bad faith or willful misconduct. The
Company also
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58
covenants and agrees to indemnify the Trustee and each predecessor Trustee for,
and to hold it harmless against, any claim, loss, liability, tax, assessment or
other governmental charge (other than taxes applicable to the Trustee's
compensation hereunder) or expense incurred without negligence, bad faith or
willful misconduct on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including enforcement of this Section 607 and the costs and
expenses of defending itself against or investigating any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 607 to compensate
and indemnify the Trustee and each predecessor Trustee and to pay or reimburse
the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute an additional obligation hereunder and shall survive
the satisfaction and discharge of this Indenture and the resignation or removal
of the Trustee and each predecessor Trustee.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
excluding any property or funds which are held in trust for the holders of
Senior Indebtedness and except finds held in trust for the payment of Accreted
Value of, premium, if any, or interest on particular Securities.
Section 608. CONFLICTING INTERESTS.
The Trustee shall comply with the provisions of Section 310(b)
of the Trust Indenture Act.
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be
eligible to act as trustee under Trust Indenture Act Section 310(a)(5) and which
shall have an office in the City of New York, a combined capital and surplus of
at least $50,000,000, to the extent there is an institution eligible and willing
to serve. If the Trustee does not have an office in The City of New York, the
Trustee may appoint an agent in The City of New York reasonably acceptable to
the Company to conduct any activities which the Trustee may be required under
this Indenture to conduct in The City of New York. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section 609, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 609, the Trustee shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
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59
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE.
(a) No resignation or removal of the Trustee and no
appointment of a successor trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor trustee under
Section 611.
(b) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving written notice thereof to the
Company. Upon receiving such notice of resignation, the Company shall promptly
appoint a successor trustee by written instrument executed by authority of the
Board of Directors, a copy of which shall be delivered to the resigning Trustee
and a copy to the successor trustee. If an instrument of acceptance by a
successor trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may, or
any Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint a
successor trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of not less than a majority in aggregate Accreted Value of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of Trust Indenture Act Section 310(b) after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months,
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request therefor by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee,
or (ii) subject to Section 514, the Holder of any Security who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
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(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor trustee and shall comply with the applicable requirements of Section
611. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, the Company has not appointed a successor Trustee, a
successor trustee shall be appointed by the Act of the Holders of a majority in
Accreted Value of the Outstanding Securities delivered to the Company and the
retiring Trustee. Such successor trustee so appointed shall forthwith upon its
acceptance of such appointment become the successor trustee and supersede the
successor trustee appointed by the Company. If no successor trustee shall have
been so appointed by the Company or the Holders of the Securities and accepted
appointment in the manner hereinafter provided, the Holder of any Security who
has been a bona fide Holder for at least six months may, subject to Section 514,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor trustee by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor trustee and the
address of its Corporate Trust Office or agent hereunder.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee as if originally named as
Trustee hereunder; but, nevertheless, on the written request of the Company or
the successor trustee, upon payment of its charges pursuant to Section 607 then
unpaid, such retiring Trustee shall, pay over to the successor trustee all
moneys at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor trustee all such rights and powers. Any Trustee
ceasing to act shall, nevertheless, retain a prior lien upon all property or
funds held or collected by such Trustee or such successor trustee to secure any
amounts then due such Trustee pursuant to the provisions of Section 607.
No successor trustee with respect to the Securities shall
accept appointment as provided in this Section 611 unless at the time of such
acceptance such successor trustee shall be eligible to act as trustee under the
provisions of Trust Indenture Act Sec-
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tion 310(a) and this Article Six and shall have a combined capital and surplus
of at least $50,000,000 and have a Corporate Trust Office or an agent selected
in accordance with Section 609.
Upon acceptance of appointment by any successor trustee as
provided in this Section 611, the Company shall give notice thereof to the
Holders of the Securities, by mailing such notice to such Holders at their
addresses as they shall appear on the Security Register. If the acceptance of
appointment is substantially contemporaneous with the resignation, then the
notice called for by the preceding sentence may be combined with the notice
called for by Section 610. If the Company fails to give such notice within 10
days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be given at the expense of the Company.
Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be eligible under Trust Indenture Act
Section 310(a) and this Article Six and shall have a combined capital and
surplus of at least $50,000,000 and have a Corporate Trust Office or an agent
selected in accordance with Section 609 without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor trustee; and in all such cases such certificate
shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; PROVIDED that
the right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, amalgamation, conversion or
consolidation.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the
Company (or other obligor under the Securities), the Trustee shall be subject to
the provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such
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other obligor). A Trustee who has resigned or been removed shall be subject to
the Trust Indenture Act Section 311(a) to the extent indicated therein.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will Furnish or cause to be furnished to the
Trustee
(a) semiannually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
PROVIDED, HOWEVER, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
or any agent of either of them shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders in
accordance with Trust Indenture Act Section 312, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Trust Indenture Act Section 312.
Section 703. REPORTS BY TRUSTEE.
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities, the Trustee shall transmit
by mail to all Holders, as their names and addresses appear in the Security
Register, as provided in Trust Indenture Act Section 313(c), a brief report
dated as of such May 15 in accordance with and to the extent required by Trust
Indenture Act Section 313(a). At the time of its mailing to Holders, a copy of
each such report shall be filed with the Company, the Commission and with each
securities exchange on which the Securities are listed. The Company shall notify
the Trustee when the Securities are listed on any securities exchange.
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Section 704. REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 30 days after the Company is
required to file the same with the Commission, 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 Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of said Sections, then it shall file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations;
(b) file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(c) transmit or cause to be transmitted by mail to all
Holders, as their names and addresses appear in the Security Register, within 30
days after the filing thereof with the Trustee, in the manner and to the extent
provided in Trust Indenture Act Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company pursuant
to Subsections (a) and (b) of this Section 704 as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not, in a single transaction or through a
series of related transactions, consolidate with or merge with or into any other
Person or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or permit any of its Subsidiaries to enter into any such
transaction or transactions if such transaction or transactions, in the
aggregate, would result in a sale, assignment, conveyance, transfer, lease or
disposition of all or substantially all of the properties and assets of the
Company and its Subsidiaries on a
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64
Consolidated basis to any other Person or group of affiliated Persons, unless at
the time and after giving effect thereto:
(i) either (a) the Company shall be the continuing
corporation or (b) the Person (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person
which acquires by sale, assignment, conveyance, transfer, lease or
disposition all or substantially all of the properties and assets of
the Company and its Subsidiaries on a Consolidated basis (the
"Surviving Entity") shall be a corporation, partnership, limited
liability company or business trust duly organized and validly existing
under the laws of the United States of America, any state thereof or
the District of Columbia and such Person expressly assumes, by a
supplemental indenture, executed and delivered to the Trustee, in a
form satisfactory to the Trustee, all the obligations of the Company
under the Securities and this Indenture, and this Indenture shall
remain in full force and effect;
(ii) immediately before and immediately after giving
effect to such transaction on a PRO FORMA basis, no Default or Event of
Default shall have occurred and be continuing;
(iii) except in the case of the consolidation or
merger of any Wholly Owned Subsidiary with or into the Company,
immediately after giving effect to such transaction on a PRO FORMA
basis, the Consolidated Net Worth of the Company (or the Surviving
Entity if the Company is not the continuing obligor under this
Indenture) is equal to or greater than the Consolidated Net Worth of
the Company immediately prior to such transaction; and
(iv) at the time of the transaction, the Company or
the Surviving Entity shall have delivered, or caused to be delivered,
to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each to
the effect that such consolidation, merger, transfer, sale, assignment,
conveyance, transfer, lease or other transaction and the supplemental
indenture in respect thereof comply with this Indenture and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Paragraphs (ii) and (iii) of this Section 801 shall not apply to any merger of
the Company with or into any Wholly Owned Subsidiary of the Company. This
Section 801 shall not apply to the transfer of all or substantially all of the
assets of the Company to any of its Wholly Owned Subsidiaries.
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65
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of the Company in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or the successor Person to which such sale, assignment, conveyance,
transfer, lease or disposition is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture in
the Securities, with the same effect as if such successor had been named as the
Company herein or in the Securities. When a successor (other than a successor
that is an Affiliate of the Company) assumes all the obligations of its
predecessor under this Indenture or the Securities, as the case may be, the
predecessor shall be released from those obligations; PROVIDED that in the case
of a transfer by lease, the predecessor shall not be released from the payment
of Accreted Value and interest on the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders, the Company and any other
obligor upon the Securities when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form and substance satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company or any other obligor upon the Securities, and the assumption by any such
successor of the covenants of the Company or obligor herein and in the
Securities in accordance with Article Eight;
(b) to add to the covenants of the Company or any other
obligor upon the Securities for the benefit of the Holders, or to surrender any
right or power herein conferred upon the Company or any other obligor upon the
Securities, as applicable, herein or in the Securities;
(c) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein or in the Securities or to make any other provisions with respect to
matters or questions arising under this Indenture or the Securities; PROVIDED
that, in each case, such provisions shall not adversely affect the interests of
the Holders;
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(d) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by Section 905 or otherwise;
(e) to evidence and provide the acceptance of the appointment
of a successor trustee hereunder; or
(f) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the Holders as additional
security for the payment and performance of the Indenture Obligations, in any
property or assets, including any which are required to be mortgaged, pledged or
hypothecated, or in which a security interest is required to be granted to the
Trustee pursuant to this Indenture or otherwise.
Section 902. SUPPLEMENTAL INDENTURES AND AGREEMENTS WITH
CONSENT OF HOLDERS.
Except as permitted by Section 901, with the consent of the
Holders of at least a majority in aggregate Accreted Value of the Outstanding
Securities, by Act of said Holders delivered to the Company and the Trustee, the
Company when authorized by Board Resolutions, and the Trustee may (i) enter into
an indenture or indentures supplemental hereto in form and substance
satisfactory to the Trustee, for the purpose of adding any provisions to or
amending, modifying or changing in any manner or eliminating any of the
provisions of this Indenture, the Securities (including but not limited to, for
the purpose of modifying in any manner the rights of the Holders under this
Indenture or the Securities) or (ii) waive compliance with any provision in this
Indenture or the Securities (other than waivers of past Defaults covered by
Section 513 and waivers of covenants which are covered by Sec tion 1020);
PROVIDED, HOWEVER, that no such supplemental indenture, agreement or instrument
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(a) change the Stated Maturity of the Accreted Value of, or
any installment of interest on, any Security, or reduce the Accreted Value
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the coin or currency in which the Accreted Value
of any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(b) [intentionally omitted];
(c) reduce the percentage in Accreted Value of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver of
compliance with certain provisions of this Indenture;
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(d) modify any of the provisions of this Section 902 or
Sections 513 or 1020, except to increase the percentage in Accreted Value of the
Outstanding Securities the consent of whose Holders is required for any such
actions or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Security affected
thereby;
(e) except as otherwise permitted under Article Eight, consent
to the assignment or transfer by the Company of any of its rights and
obligations under this Indenture; or
(f) amend or modify any of the provisions of this Indenture
relating to the subordination of the Securities in any manner adverse to the
Holders.
Upon the written request of the Company accompanied by a copy
of Board Resolutions authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture.
It shall not be necessary for any Act of Holders under this
Section 902 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES AND
AGREEMENTS.
In executing, or accepting the additional trusts created by,
any supplemental indenture, agreement, instrument or waiver permitted by this
Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Trust
Indenture Act Section 315(a) through 315(d) and Section 602 hereof) shall be
fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate stating that the execution of such supplemental indenture, agreement
or instrument (a) is authorized or permitted by this Indenture and (b) does not
violate the provisions of any agreement or instrument evidencing any other
Indebtedness of the Company or any Subsidiary. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture, agreement or
instrument which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture and the Securities shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture
for all purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
Nine shall conform to the requirements of the Trust Indenture Act as then in
effect.
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
Section 907. NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security
affected, in the manner provided for in Section 106, setting forth in general
terms the substance of such supplemental indenture.
Section 908. REVOCATION AND EFFECT OF CONSENTS.
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
Indebtedness as the consenting Holder's Security, even if a 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 the notice of revocation before the date the amendment or
waiver becomes effective. An amendment or waiver shall become effective in
accordance with its terms and thereafter bind every Holder.
ARTICLE X
COVENANTS
Section 1001. PAYMENT OF ACCRETED VALUE, PREMIUM AND INTEREST.
The Company shall duly and punctually pay the Accreted Value
of, premium, if any, and interest on the Securities in accordance with the terms
of the Securities and this Indenture.
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Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain an office or agency where
Securities may be presented or surrendered for payment. The Company also will
maintain in The City of New York an office or agency where Securities may be
surrendered for registration of transfer, redemption or exchange and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location and any change in the location of any such offices or
agencies. If at any time the Company shall fail to maintain any such required
offices or agencies or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the office of the agent of the Trustee described above and the Company
hereby appoints such agent as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation. The Company will give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such office or agency.
Section 1003. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company or any of its Affiliates shall at any time act
as Paying Agent, it will, on or before each due date of the Accreted Value of,
premium, if any, or interest on any, of the Securities, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to pay
the Accreted Value, premium, if any, or interest so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
will promptly notify the Trustee of its action or failure so to act.
If the Company or any of its Affiliates is not acting as
Paying Agent, the Company will, on or before each due date of the Accreted Value
of, premium, if any, or interest on, any Securities, deposit with a Paying Agent
a sum in same day funds sufficient to pay the Accreted Value, premium, if any,
or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such Accreted Value, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of
such action or any failure so to act.
If the Company is not acting as Paying Agent, the Company will
cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the Accreted
Value of, premium, if any, or interest on Securities in trust for the benefit of
the Persons entitled
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70
thereto until such sums shall be paid to such Persons or otherwise disposed of
as herein provided;
(b) give the Trustee notice of any Default by the Company (or
any other obligor upon the Securities) in the making of any payment of Accreted
Value, premium, if any, or interest;
(c) 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; and
(d) acknowledge, accept and agree to comply in all aspects
with the provisions of this Indenture relating to the duties, rights and
disabilities of such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the Accreted Value of,
premium, if any, or interest on any Security and remaining unclaimed for two
years after such Accreted Value and premium, if any, or interest has become due
and payable shall promptly be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in THE NEW YORK TIMES and THE
WALL STREET JOURNAL (national edition), and mail 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 notification,
publication and mailing, any unclaimed balance of such money then remaining will
promptly be repaid to the Company.
Section 1004. CORPORATE EXISTENCE.
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect the
corporate existence and related rights and franchises (charter and statutory) of
the Company and each Subsidiary;
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PROVIDED, HOWEVER, that the Company shall not be required to preserve any such
right or franchise or the corporate existence of any such Subsidiary if the
Board of Directors of the Company shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company and its
Subsidiaries as a whole and that the loss thereof would not reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder; and PROVIDED FURTHER, HOWEVER, that the
foregoing shall not prohibit a sale, transfer or conveyance of a Subsidiary or
any of its assets in compliance with the terms of this Indenture.
Section 1005. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company shall pay or discharge or cause to be paid or
discharged, on or before the date the same shall become due and payable, (a) all
taxes, assessments and governmental charges levied or imposed upon the Company
or any Subsidiary shown to be due on any return of the Company or any Subsidiary
or otherwise assessed or upon the income, profits or property of the Company or
any Subsidiary if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder and (b) all lawful claims for labor, materials
and supplies, which, if unpaid, would by law become a Lien upon the property of
the Company or any Subsidiary, except for any Lien permitted to be incurred
under Section 1012, if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder; PROVIDED, HOWEVER, that the Company shall not
be required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings properly instituted and
diligently conducted and in respect of which appropriate reserves (in the good
faith judgment of management of the Company) are being maintained in accordance
with GAAP.
Section 1006. MAINTENANCE OF PROPERTIES.
The Company shall cause all material properties owned by the
Company or any Subsidiary or used or held for use in the conduct of its business
or the business of any Subsidiary to be maintained and kept in good condition,
repair and working order (ordinary wear and tear excepted) and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the reasonable
judgment of the Company may be consistent with sound business practice and
necessary so that the business carried on in connection therewith may be
properly conducted at all times; PROVIDED, HOWEVER, that nothing in this Section
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the reasonable judgment of the Company,
desirable in the conduct of its business or the business of any Subsidiary and
not reasonably expected to have a material adverse effect on the ability of the
Company to perform its obligations hereunder.
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Section 1007. INSURANCE.
The Company shall at all times keep all of its and its
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by the Company in good faith to be financially sound and responsible,
against loss or damage to the extent that property of similar character is
usually so insured by corporations similarly situated and owning like properties
in the same general geographic areas in which the Company and its Subsidiaries
operate, except where the failure to do so could not reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or prospects of the Company and its Subsidiaries,
taken as a whole.
Section 1008. LIMITATION ON INDEBTEDNESS.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, create, issue, assume, guarantee, or otherwise in any manner
become directly or indirectly liable for or with respect to or otherwise incur
(collectively, "incur") any Indebtedness (including any Acquired Indebtedness),
except that the Company may incur Indebtedness (including any Acquired
Indebtedness) and any Subsidiary may incur Acquired Indebtedness if, in each
case, the Consolidated Fixed Charge Coverage Ratio for the Company for the four
full fiscal quarters immediately preceding the incurrence of such Indebtedness
taken as one period (and after giving PRO FORMA effect to (i) the incurrence of
such Indebtedness and (if applicable) the application of the net proceeds
therefrom, including to refinance other Indebtedness, as if such Indebtedness
was incurred, and the application of such proceeds occurred, at the beginning of
such four-quarter period; (ii) the incurrence, repayment or retirement of any
other Indebtedness by the Company and its Subsidiaries since the first day of
such four-quarter period as if such Indebtedness was incurred, repaid or
retired at the beginning of such four-quarter period (except that, in making
such computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such four-quarter period); (iii) in the case of Acquired Indebtedness,
the related acquisition, as if such acquisition occurred at the beginning of
such four-quarter period; and (iv) any acquisition or disposition by the Company
and its Subsidiaries of any company or any business or any assets out of the
ordinary course of business, whether by merger, stock purchase or sale or asset
purchase or sale or any related repayment of Indebtedness, in each case since
the first day of such four-quarter period, assuming such acquisition or
disposition had been consummated on the first day of such four-quarter period)
is at least equal to 1.0:1.0 for any such incurrence.
(b) The foregoing limitation will not apply to the incurrence
of any of the following (collectively "Permitted Indebtedness"):
(i) Indebtedness of the Company or any of its
Subsidiaries under the Credit Facility in an aggregate principal amount
at any one time
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73
outstanding not to exceed the greater of (x) $90,000,000 and (y) the
maximum amount of Indebtedness that could be incurred by the Company
and its Subsidiaries under the Credit Facility;
(ii) Indebtedness of the Company pursuant to the
Securities;
(iii) Indebtedness of the Company and any Subsidiary
outstanding on the date of this Indenture;
(iv) Indebtedness of the Company owing to a
Subsidiary;
(v) Indebtedness of a Wholly Owned Subsidiary owing
to the Company or another Wholly Owned Subsidiary;
(vi) guarantees of the Company or any Subsidiary of
any Indebtedness permitted under this Section 1008;
(vii) obligations of the Company or any Subsidiary
entered into in the ordinary course of business pursuant to Interest
Rate Agreements designed to protect the Company or any Subsidiary
against fluctuations in interest rates in respect of Indebtedness of
the Company or any Subsidiary as long as such obligations do not exceed
the aggregate principal amount of such Indebtedness then outstanding;
(viii) Indebtedness secured by Purchase Money Liens
not to exceed, in the aggregate for the Company and its Subsidiaries
combined, [$2,500,000] outstanding at any one time.
(ix) any renewals, extensions, substitutions,
refundings, refinancings or replacements (collectively, a
"refinancing") of any Indebtedness described in clauses (ii) and (iii)
of this definition of "Permitted Indebtedness," including any
successive refinancings so long as (A) the aggregate principal amount
of Indebtedness represented thereby is not increased by such
refinancing plus the lesser of (I) the stated amount of any premium or
other payment required to be paid in connection with such a refinancing
pursuant to the terms of the Indebtedness being refinanced or (II) the
amount of premium or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the amount of
expenses of the Company or any Subsidiary incurred in connection such
refinancing and, (B) in the case of Subordinated Indebtedness, such
refinancing does not reduce the Average Life to Stated Maturity or the
Stated Maturity of such Indebtedness; and
(x) Indebtedness of the Company or any Subsidiary in
addition to that described in clauses (i) through (ix) above, and any
renewals, extensions, substitutions, refinancings or replacements of
such Indebtedness, so long as the
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74
aggregate principal amount of all such Indebtedness shall not exceed
$20,000,000 outstanding at any one time in the aggregate.
Section 1009. LIMITATION ON RESTRICTED PAYMENTS.
(a) The Company shall not, and shall not permit any Subsidiary
to, directly or indirectly:
(i) declare or pay any dividend on, or make any
distribution to holders of, any shares of the Company's Capital Stock
(other than dividends or distributions payable solely in shares of its
Qualified Capital Stock or in options, warrants or other rights to
acquire shares of such Qualified Capital Stock);
(ii) purchase, redeem or otherwise acquire or retire
for value, directly or indirectly, the Company's Capital Stock or any
Capital Stock of any Affiliate of the Company (other than any Wholly
Owned Subsidiary of the Company) or options, warrants or other rights
to acquire such Capital Stock;
(iii) make any principal payment on, or repurchase,
redeem, defease, retire or otherwise acquire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any
Subordinated Indebtedness;
(iv) declare or pay any dividend or distribution on
any Capital Stock of any Subsidiary to any Person (other than the
Company or any of its Wholly Owned Subsidiaries) or purchase, redeem or
otherwise acquire or retire for value any Capital Stock of any
Subsidiary held by any Person (other than the Company or any of its
Wholly Owned Subsidiaries) other than any such dividend, distribution,
purchase, redemption, acquisition or retirement on a pro rata basis to
all holders of Capital Stock;
(v) incur, create or assume any guarantee of
Indebtedness of any Affiliate (other than Indebtedness of the Company
or a Wholly Owned Subsidiary of the Company); or
(vi) make any Investment in any Person (other
than any Permitted Investments)
(any of the foregoing payments described in clauses (i) through (vi), other than
any such action that is a Permitted Payment, collectively, "Restricted
Payments") (the amount of any such Restricted Payment, if other than cash, as
determined by the Board of Directors of the Company, whose determination shall
be conclusive and evidenced by a Board Resolution), unless (1) immediately
before and immediately after giving effect to such Restricted Payment on a PRO
FORMA basis, no Default or Event of Default shall have occurred and be
continuing; (2) immediately before and immediately after giving effect to such
Restricted
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75
Payment on a PRO FORMA basis, the Company could incur $1.00 of additional
Indebtedness (other than Permitted Indebtedness) under the provisions contained
in Section 1008(a); and (3) after giving effect to the proposed Restricted
Payment, the aggregate amount of all such Restricted Payments declared or made
after the date of this Indenture does not exceed the sum of:
(A) 50% of the aggregate Consolidated Net Income of
the Company accrued on a cumulative basis during the period beginning
on the first day of the Company's fiscal quarter commencing after the
date of this Indenture and ending on the last day of the Company's last
fiscal quarter ending prior to the date of the Restricted Payment (or,
if such aggregate cumulative Consolidated Net Income shall be a loss,
minus 100% of such loss);
(B) the aggregate Net Cash Proceeds received after
the date of this Indenture by the Company from the issuance or sale
(other than to any of its Subsidiaries) of Qualified Capital Stock of
the Company or any options, warrants or rights to purchase such
Qualified Capital Stock of the Company (except, in each case, to the
extent such proceeds are used to purchase, redeem or otherwise retire
Capital Stock or Subordinated Indebtedness as set forth in clause (ii)
or (iii) of paragraph (b) below);
(C) the aggregate Net Cash Proceeds received after
the date of this Indenture by the Company (other than from any of its
Subsidiaries) upon the exercise of any options or warrants to purchase
Qualified Capital Stock of the Company;
(D) the aggregate Net Cash Proceeds received after
the date of this Indenture by the Company from the conversion or
exchange, if any, of Indebtedness, debt securities or Redeemable
Capital Stock of the Company or its Subsidiaries into or for Qualified
Capital Stock of the Company plus, to the extent such Indebtedness,
debt securities or Redeemable Capital Stock were issued after the date
of this Indenture, the aggregate Net Cash Proceeds from their original
issuance; and
(E) $5,000,000.
(b) Notwithstanding the foregoing, and in the case of clauses
(ii) through (iv) below, so long as there is no Default or Event of Default
continuing, the foregoing provisions shall not prohibit the following actions
(clauses (i) through (iv) being referred to as "Permitted Payments"):
(i) the payment of any dividend within 60 days after
the date of declaration thereof, if at such date of declaration such
payment would be permitted by the provisions of paragraph (a) of this
Section and such payment shall be
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76
deemed to have been paid on such date of declaration for purposes of
the calculation required by paragraph (a) of this Section;
(ii) the repurchase, redemption, or other acquisition
or retirement of any shares of any class of Capital Stock of the
Company in exchange for (including any such exchange pursuant to the
exercise of a conversion right or privilege in connection therewith
cash is paid in lieu of the issuance of fractional shares or scrip), or
out of the Net Cash Proceeds of a substantially concurrent issue and
sale for cash (other than to a Subsidiary) of, other shares of
Qualified Capital Stock of the Company; PROVIDED that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock
are excluded from clause (3)(B) of paragraph (a) of this Section;
(iii) the repurchase, redemption, defeasance,
retirement or acquisition for value or payment of principal of any
Subordinated Indebtedness in exchange for, or in an amount not in
excess of the net proceeds of, a substantially concurrent issuance and
sale for cash (other than to any Subsidiary of the Company) of any
Qualified Capital Stock of the Company, PROVIDED that the Net Cash
Proceeds from the issuance of such shares of Qualified Capital Stock
are excluded from clause (3)(B) of paragraph (a) of this Section;
(iv) the repurchase, redemption, defeasance,
retirement, refinancing or acquisition for value or payment of
principal of any Subordinated Indebtedness (other than Redeemable
Capital Stock) (a "refinancing") through the issuance of new
Subordinated Indebtedness of the Company, PROVIDED that any such new
Subordinated Indebtedness (1) shall be in a principal amount that does
not exceed the principal amount so refinanced (or, if such Subordinated
Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration or acceleration
thereof, then such lesser amount as of the date of determination), plus
the lesser of (I) the stated amount of any premium or other payment
required to be paid in connection with such a refinancing pursuant to
the terms of the Indebtedness being refinanced or (II) the amount of
premium or other payment actually paid at such time to refinance the
Indebtedness, plus, in either case, the amount of expenses of the
Company incurred in connection with such refinancing; (2) has an
Average Life to Stated Maturity greater than the remaining Average Life
to Stated Maturity of the Securities; (3) has a Stated Maturity for its
final scheduled principal payment later than the Stated Maturity for
the final scheduled principal payment of the Securities; and (4) is
expressly subordinated in right of payment to the Securities at least
to the same extent as the Indebtedness to be refinanced; and
(v) the redemption, repurchase or acquisition of
Common Stock or other equity interests from time to time under
management equity subscription agreements or stock option agreements or
plans in existence on the date of this
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77
Indenture, so long as such redemptions (x) do not exceed $5,000,000 in
the aggregate and (y) do not otherwise result in an Event of Default or
an event that, after notice or lapse of time or both, would become an
Event of Default; PROVIDED that amounts expended pursuant to this
clause (v) will be subtracted from the amounts available for Restricted
Payments pursuant to paragraph (a) hereof.
Section 1010. LIMITATION ON TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, enter into or suffer to exist any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with any
Affiliate of the Company (other than the Company or a Wholly Owned Subsidiary)
unless (a) such transaction or series of transactions is in writing on terms
that are no less favorable to the Company or such Subsidiary, as the case may
be, than would be available in a comparable transaction in arm's length dealings
with an unrelated third party and (b) with respect to any transaction or series
of transactions involving aggregate value in excess of $5,000,000, the Company
delivers an Officers' Certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (a) above
and such transaction or series of related transactions has been approved by the
Board of Directors of the Company (and approved by a majority of the Independent
Directors of the Company, or in the event there is only one Independent
Director, by such Independent Director); PROVIDED, HOWEVER, that this provision
shall not apply to (A) any transaction with an officer or director of the
Company entered into in the ordinary course of business (including compensation
or employee benefit arrangements with any officer or director of the Company)
and (B) transactions pursuant to agreements in existence on the date of this
Indenture. This limitation shall not apply to (i) transactions among the Company
and its wholly owned Subsidiaries or among wholly owned Subsidiaries of the
Company, (ii) the provision of directors and officers insurance for the benefit
of the directors and officers of the Company, (iii) indemnification payments to
directors and officers of the Company in accordance with applicable state law
and (iv) payments to all holders of Capital Stock of the Company on a pro rata
basis.
Section 1011. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Subsidiary of
the Company to, enter into any Sale and Leaseback Transaction with respect to
any property or assets (whether now owned or hereafter acquired) unless (i) the
sale or transfer of such property or assets to be leased complies with Section
1013, PROVIDED that the Net Cash Proceeds therefrom, to the extent not applied
to the permanent repayment or prepayment of any portion of the Credit Facility
or used to purchase Securities pursuant to an Offer (whether or not such Offer
is accepted), shall be used to invest in properties and assets that will be used
in the businesses of the Company or its Subsidiaries existing on the date of
this Indenture or reasonably related thereto and (ii) the Company or such
Subsidiary would be
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78
entitled under Section 1008 to incur any Capital Lease Obligations in respect of
such Sale and Leaseback Transaction.
Section 1012. LIMITATION ON LIENS.
The Company shall not directly or indirectly, create, incur,
affirm or suffer to exist any Lien of any kind in respect of any Indebtedness
upon any of its property or assets (including any intercompany notes), owned at
the date of this Indenture or acquired after the date of this Indenture, or any
income or profits therefrom, except if the Securities are directly secured
equally and ratably with (or prior or senior thereto in the case of Liens with
respect to Subordinated Indebtedness) the obligation or liability secured by
such Lien, excluding, however, from the operation of the foregoing any of the
following:
(a) any Lien existing as of the date of this Indenture;
(b) any Lien arising by reason of (1) any judgment, decree or
order of any court, so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have expired;
(2) taxes, assessments, governmental charges or claims not yet delinquent or
which are being contested in good faith; (3) security for payment of workers'
compensation or other insurance related obligations; (4) deposits made in the
ordinary course of business in connection with tenders, leases, contracts (other
than contracts for the payment of money); (5) zoning restrictions, easements,
licenses, reservations, provisions, covenants, conditions, waivers, restrictions
on the use of property or minor irregularities of title (and with respect to
leasehold interests, mortgages, obligations, liens and other encumbrances
incurred, created, assumed or permitted to exist and arising by, through or
under a landlord or owner of the leased property, with or without consent of the
lessee), none of which materially impairs the use of any parcel of property
material to the operation of the business of the Company or any Subsidiary or
the value of such property for the purpose of such business; (6) deposits to
secure public or statutory obligations, or in lieu of surety or appeal bonds;
(7) certain surveys, exceptions, title defects, encumbrances, easements,
reservations of, or rights of others for, rights of way, sewers, electric lines,
telegraph or telephone lines and other similar purposes or zoning or other
restrictions as to the use of real property not interfering with the ordinary
conduct of the business of the Company or any of its Subsidiaries; (8) operation
of law in favor of mechanics, materialmen, laborers, employees or suppliers,
incurred in the ordinary course of business for sums which are not yet
delinquent or are being contested in good faith by negotiations or by
appropriate proceedings which suspend the collection thereof or (9) contracts to
sell assets that are not otherwise prohibited hereunder;
(c) any Lien now or hereafter existing on property of the
Company or any Subsidiary pursuant to the Credit Facility, PROVIDED that any
Indebtedness so secured
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79
by any Lien created after the date hereof is permitted to be incurred under
clause (b)(i) of the provisions contained in Section 1008;
(d) any Lien securing Acquired Indebtedness created prior to
(and not created in connection with, or in contemplation of) the incurrence of
such Indebtedness by the Company or any Subsidiary, in each case which
Indebtedness is permitted under the provisions of Section 1008; PROVIDED that
any such Lien only extends to the assets that were subject to such Lien securing
such Acquired Indebtedness prior to the related transaction by the Company or
its Subsidiaries; and
(e) any extension, renewal, refinancing or replacement, in
whole or in part, of any Lien described in the foregoing clauses (a) through (d)
so long as the amount of security is not increased thereby.
This covenant shall not restrict in any manner any Subsidiary
of the Company, including, without limitation, the pledging of assets pursuant
to the Credit Facility.
Section 1013. LIMITATION ON SALE OF ASSETS.
(a) The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, consummate an Asset Sale unless (i) at
least 75% of the Net Cash Proceeds from such Asset Sale are received in cash and
(ii) the Company or such Subsidiary receives consideration at the time of such
Asset Sale at least equal to the Fair Market Value of the shares or assets sold
(as determined by the Board of Directors of the Company and evidenced in a Board
Resolution).
(b) If all or a portion of the Net Cash Proceeds of any Asset
Sale are not required to be applied to repay permanently any portion of the
Credit Facility then outstanding as required by the terms thereof, or the
Company determines not to apply such Net Cash Proceeds to the permanent
prepayment of any portion of the Credit Facility or if the Credit Facility is
not then outstanding, then the Company or a Subsidiary may within twelve months
of the Asset Sale invest the Net Cash Proceeds in properties and other assets
that (as determined by the Board of Directors of the Company) replace the
properties and assets that were the subject of the Asset Sale or in properties
and assets that will be used in the businesses of the Company or its
Subsidiaries existing on the date of this Indenture or in businesses reasonably
related thereto. The amount of such Net Cash Proceeds neither used to
permanently repay or prepay any portion of the Credit Facility nor used or
invested as set forth in this paragraph constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds equals
$5,000,000 or more, the Company shall apply the Excess Proceeds to the repayment
of the Securities and any Pari Passu Indebtedness required to be repurchased
under the instrument governing such Pari Passu Indebtedness as follows: (a) the
Company will make an offer to purchase
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(an "Offer") from all holders of the Securities in accordance with the
procedures set forth in this Indenture in the maximum Accreted Value with
Original Issue Price (expressed as a multiple of $100) of Securities that may be
purchased out of an amount (the "Security Amount") equal to the product of such
Excess Proceeds multiplied by a fraction, the numerator of which is the
outstanding Accreted Value of the Securities, and the denominator of which is
the sum of the outstanding Accreted Value of the Securities and the outstanding
principal amount of such Pari Passu Indebtedness (subject to proration in the
event such amount is less than the aggregate Offered Price (as defined herein)
of all Securities tendered) and (b) to the extent required by such Pari Passu
Indebtedness to permanently reduce the principal amount of such Pari Passu
Indebtedness, the Company will make an offer to purchase or otherwise repurchase
or redeem Pari Passu Indebtedness (a "Pari Passu Offer") in an amount (the "Pari
Passu Debt Amount") equal to the excess of the Excess Proceeds over the Security
Amount; provided that in no event will the Company be required to make a Pari
Passu Offer in a Pari Passu Debt Amount exceeding the principal amount of such
Pari Passu Indebtedness plus the amount of any premium required to be paid to
repurchase such Pari Passu Indebtedness. The offer price will be payable in cash
in an amount equal to 100% of the Accreted Value of the Securities plus accrued
and unpaid interest, if any, to the date (the "Offer Date") such Offer is
consummated (the "Offered Price"), in accordance with the procedures set forth
in this Indenture. To the extent that the aggregate Offered Price of the
Securities tendered pursuant to the Offer is less than the Security Amount
relating thereto or the aggregate amount of Pari Passu Indebtedness that is
purchased is less than the Pari Passu Debt Amount (the amount of such shortfall,
if any, constituting a "Deficiency"), the Company will use such Deficiency in
the business of the Company and its Subsidiaries for general corporate purposes.
Upon completion of the purchase of all the Securities tendered pursuant to an
Offer and repurchase of the Pari Passu Indebtedness pursuant to a Pari Passu
Offer, the amount of Excess Proceeds, if any, shall be reset at zero.
(d) Whenever the Excess Proceeds received by the Company
exceed $5,000,000, such Excess Proceeds shall, prior to any purchase of
Securities or Pari Passu Indebtedness described in paragraph (c) above, be set
aside by the Company in a separate account pending (i) deposit with the
depositary or a Paying Agent of the amount required to purchase the Securities
or Pari Passu Indebtedness tendered in an Offer or a Pari Passu Offer, (ii)
delivery by the Company of the Offered Price to the Holders or holders of Pari
Passu Indebtedness tendered in an Offer or a Pari Passu Offer and (iii)
application, as set forth above, of Excess Proceeds in the business of the
Company and its Subsidiaries for general corporate purposes. Such Excess
Proceeds may be invested in Temporary Cash Investments, PROVIDED that the
maturity date of any such investment made after the amount of Excess Proceeds
exceeds $5,000,000 shall not be later than the Offer Date. The Company shall be
entitled to any interest or dividends accrued, earned or paid on such Temporary
Cash Investments, PROVIDED that the Company shall not withdraw such interest
from the separate account if an Event of Default has occurred and is continuing.
<PAGE>
(e) If the Company becomes obligated to make an Offer pursuant
to clause (c) above, the Securities shall be purchased by the Company, at the
option of the Holder thereof, in whole or in part in amounts of Accreted Value
with an Original Issue Price of $100 (or integral multiples thereof), on a date
that is not earlier than 45 days and not later than 60 days from the date the
notice is given to Holders, or such later date as may be necessary for the
Company to comply with the requirements under the Exchange Act, subject to
proration in the event the Security Amount is less than the aggregate Offered
Price of all Securities tendered.
(f) The Company shall comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws or regulations in connection with an Offer.
(g) The Company will not, and will not permit any Subsidiary
to, create or permit to exist or become effective any restriction (other than
restrictions existing under Indebtedness as in effect on the date of this
Indenture as such Indebtedness may be refinanced from time to time, PROVIDED
that such restrictions are no less favorable to the Holders than those existing
on the date of this Indenture) that would materially impair the ability of the
Company to make an Offer to purchase the Securities or, if such Offer is made,
to pay for the Securities tendered for purchase.
(h) Subject to paragraph (f) above, within 30 days after the
date on which the amount of Excess Proceeds equals or exceeds $5,000,000, the
Company shall send or cause to be sent by first-class mail, postage prepaid, to
the Trustee and to each Holder, at his address appearing in the Security
Register, a notice stating or including:
(1) that the Holder has the right to require the
Company to repurchase, subject to proration, such Holder's Securities
at the Offered Price;
(2) the Offer Date;
(3) the instructions a Holder must follow in order to
have his Securities purchased in accordance with paragraph (c) of this
Section; and
(4) [intentionally omitted];
(5) the Offered Price;
(6) the names and addresses of the Paying Agent and
the offices or agencies referred to in Section 1002;
(7) that Securities must be surrendered at least
three Business Days prior to the Offer Date to the Paying Agent to an
office or agency referred to in Section 1002 to collect payment;
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82
(8) that any Securities not tendered will continue to
accrue interest and that unless the Company defaults in the payment of
the purchase price, any Security accepted for payment pursuant to the
Offer shall cease to accrue interest on and after the Offer Date; and
(9) the procedures for withdrawing a tender.
(i) Holders electing to have Securities purchased hereunder
will be required to surrender such Securities at the address specified in the
notice at least three Business Days prior to the Offer Date. Holders will be
entitled to withdraw their election to have their Securities purchased pursuant
to this Section 1013 if the Company receives, not later than the Offer Date, a
telegram, telex, facsimile transmission or letter setting forth (1) the name of
the Holder, (2) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted, (3) the Original Issue Price of the
Security (which shall be $100 or an integral multiple thereof) the Accreted
Value of which was delivered for purchase by the Holder and as to which his
election is to be withdrawn, (4) a statement that such Holder is withdrawing his
election to have such Accreted Value of such Security purchased, and (5) the
Original Issue Price, if any, of such Security (which shall be $100 or an
integral multiple thereof) the Accreted Value of which remains subject to the
original notice of the Offer and that has been or will be delivered for purchase
by the Company.
(j) The Company shall (i) not later than the Offer Date,
accept for payment Securities or portions thereof tendered pursuant to the
Offer, (ii) not later than 10:00 a.m. (New York time) on the Offer Date, deposit
with the Trustee or with a Paying Agent (or, if the Company or any of its
Affiliates is acting as Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in same day funds (or New York Clearing House
funds if such deposit is made prior to the Offer Date) sufficient to pay the
aggregate Offered Price of all the Securities or portions thereof which are to
be purchased on that date and (iii) not later than 10:00 a.m. (New York time) on
the Offer Date, deliver to the Paying Agent (if other than the Company) an
Officers' Certificate stating the Securities or portions thereof accepted for
payment by the Company.
Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest, if any, thereon, held by
them for the payment of the Offered Price; PROVIDED, HOWEVER, that (x) to the
extent that the aggregate amount of cash deposited by the Company with the
Trustee in respect of an Offer exceeds the aggregate Offered Price of the
Securities or portions thereof to be purchased, then the Trustee shall hold such
excess for the Company and (y) unless otherwise directed by the Company in
writing, promptly after the Business Day following the Offer Date the Trustee
shall return any such excess to the Company together with interest or dividends,
if any, thereon.
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(k) Securities to be purchased shall, on the Offer Date,
become due and payable at the Offered Price and from and after such date (unless
the Company shall default in the payment of the Offered Price) such Securities
shall cease to bear interest. Such Offered Price shall be paid to such Holder
promptly following the later of the Offer Date and the time of delivery of such
Security to the relevant Paying Agent at the office of such Paying Agent by the
Holder thereof in the manner required. Upon surrender of any such Security for
purchase in accordance with the foregoing provisions, such Security shall be
paid by the Company at the Offered Price; PROVIDED, HOWEVER, that installments
of interest whose Stated Maturity is on or prior to the Offer Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates according to
the terms and the provisions of Section 307 (unless the Company shall have
elected to pay such interest through an addition to the Accreted Value of the
Securities); PROVIDED FURTHER, that Securities to be purchased are subject to
proration in the event the Excess Proceeds are less than the aggregate Offered
Price of all Securities tendered for purchase, with such adjustments as may be
appropriate by the Trustee so that only Securities having an Accreted Value with
an Original Issue Price of $100 or integral multiples thereof, shall be
purchased. If any, Security tendered for purchase shall not be so paid upon
surrender thereof by deposit of funds with the Trustee or a Paying Agent in
accordance with paragraph (j) above, the Accreted Value thereof (and premium, if
any, thereon) shall, until paid, bear interest from the Offer Date at the rate
borne by such Security. Any Security that is to be purchased only in part shall
be surrendered to a Paying Agent at the office of such Paying Agent (with, if
the Company, the Security Registrar or the Trustee so requires, due endorsement
by or a written instrument of transfer in form satisfactory to the Company and
the Security Registrar or the Trustee duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing), and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, one or more new Securities of any authorized
denomination as requested by such Holder in an aggregate Accreted Value equal
to, and in exchange for, the portion of the Accreted Value of the Security so
surrendered that is not purchased. The Company shall publicly announce the
results of the Offer on or as soon as practicable after the Offer Date.
Section 1014. [intentionally omitted].
Section 1015. PURCHASE OF SECURITIES UPON A CHANGE OF CONTROL.
(a) If a Change of Control shall occur at any time, then each
Holder shall have the right to require that the Company purchase such Holder's
Securities in whole or in part with Accreted Values with an Original Issue Price
of $100 (or integral multiples thereof), at a purchase price (the "Change of
Control Purchase Price") in cash in an amount equal to [101]% of the Accreted
Value of such Securities, plus accrued and unpaid interest, if any, to the date
of purchase (the "Change of Control Purchase Date"), pursuant to the offer set
forth below in this Section 1015 (the "Change of Control Offer") and in
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84
accordance with the procedures set forth in Subsections (b), (c), (d) and (e) of
this Section 1015.
(b) Within 15 days following any Change of Control, the
Company shall notify the Trustee thereof and give written notice (a "Change of
Control Purchase Notice") of such Change of Control to each Holder, by
first-class mail, postage prepaid, at his address appearing in the Security
Register stating or including:
(1) that a Change of Control has occurred, the date
of such event, and that such Holder has the right to require the
Company to repurchase such Holder's Securities at the Change of Control
Purchase Price;
(2) the circumstances and relevant facts regarding
such Change of Control (including but not limited to information with
respect to PRO FORMA historical income, cash flow and capitalization
after giving effect to such Change of Control);
(3) [intentionally omitted];
(4) that the Change of Control Offer is being made
pursuant to this Section 1015(a) and that all Securities properly
tendered pursuant to the Change of Control Offer will be accepted for
payment at the Change of Control Purchase Price;
(5) the Change of Control Purchase Date which shall
be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed, or such later date as is necessary to
comply with requirements under the Exchange Act;
(6) the Change of Control Purchase Price;
(7) the names and addresses of the Paying Agent and
the offices or agencies referred to in Section 1002;
(8) that Securities must be surrendered on or prior
to the Change of Control Purchase Date to the Paying Agent at the
office of the Paying Agent or to an office or agency referred to in
Section 1002 to collect payment;
(9) that the Change of Control Purchase Price for any
Security which has been properly tendered and not withdrawn will be
paid promptly following the Change of Control Offer Purchase Date;
(10) the procedures for withdrawing a tender of
Securities and Change of Control Purchase Notice;
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85
(11) that any Security not tendered will continue to
accrue interest; and
(12) that, unless the Company defaults in the payment
of the Change of Control Purchase Price, any Securities accepted for
payment pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Purchase Date.
(c) Upon receipt by the Company of the proper tender of
Securities, the Holder of the Security in respect of which such proper tender
was made shall (unless the tender of such Security is properly withdrawn)
thereafter be entitled to receive solely the Change of Control Purchase Price
with respect to such Security. Upon surrender of any such Security for purchase
in accordance with the foregoing provisions, such Security shall be paid by the
Company at the Change of Control Purchase Price; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Change of
Control Purchase Date shall be payable to the Holders of such Securities, or one
or more Predecessor Securities, registered as such on the relevant Regular
Record Dates according to the terms and the provisions of Sec tion 307 (unless
the Company shall have elected to pay such interest through an addition to the
Accreted Value of the Securities). If any Security tendered for purchase in
accordance with the provisions of this Section 1015 shall not be so paid upon
surrender thereof, the Accreted Value thereof (and premium, if any, thereon)
shall, until paid, bear interest from the Change of Control Purchase Date at the
rate borne by such Security. Holders electing to have Securities purchased will
be required to surrender such to the Paying Agent at the address specified in
the Change of Control Purchase Notice at least one Business Day prior to the
Change of Control Purchase Date. Any Security that is to be purchased only in
part shall be surrendered to a Paying Agent at the office of such Paying Agent
(with, if the Company, the Security Registrar or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Security Registrar or the Trustee, as the case may be, duly
executed by, the Holder thereof or such Holder's attorney duly authorized in
writing), and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge, one or more new
Securities of any authorized denomination as requested by such Holder in an
aggregate Accreted Value equal to, and in exchange for, the portion of the
Accreted Value of the Security so surrendered that is not purchased.
(d) The Company shall (i) not later than the Change of Control
Purchase Date, accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) not later than 10:00 a.m. (New
York time) on the Change of Control Purchase Date, deposit with the Paying Agent
an amount of cash sufficient to pay the aggregate Change of Control Purchase
Price of all the Securities or portions thereof which are to be purchased as of
the Change of Control Purchase Date and (iii) not later than 10:00 a.m. (New
York time) on the Change of Control Purchase Date, deliver to the Paying Agent
an Officers' Certificate stating the Securities or portions thereof accepted for
<PAGE>
86
payment by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Securities so accepted payment in an amount equal to the Change of
Control Purchase Price of the Securities purchased from each such Holder, and
the Company shall execute and the Trustee shall promptly authenticate and mail
or deliver to such Holders a new Security equal in Accreted Value to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
shall be promptly mailed or delivered by the Paying Agent at the Company's
expense to the Holder thereof. The Company will publicly announce the results of
the Change of Control Offer on the Change of Control Purchase Date. For purposes
of this Section 1015, the Company shall choose a Paying Agent which shall not be
the Company.
(e) A tender made in response to a Change of Control Purchase
Notice may be withdrawn before or after delivery by the Holder to the Paying
Agent at the office of the Paying Agent of the Security to which such tender
relates, by means of a written notice of withdrawal delivered by the Holder to
the Paying Agent at the office of the Paying Agent or to the office or agency
referred to in Sec tion 1002 to which the related tender was delivered prior to
the Change of Control Purchase Date specifying, as applicable:
(1) the name of the Holder;
(2) the certificate number of the Security in respect
of which such notice of withdrawal is being submitted;
(3) the Original Issue Price of the Security (which
shall be $100 or an integral multiple thereof) the Accreted Value of
which was delivered for purchase by the Holder and as to which such
notice of withdrawal is being submitted; and
(4) the Original Issue Price, if any, of such
Security (which shall be $ 100 or an integral multiple thereof) the
Accreted Value of which remains subject to the original Change of
Control Purchase Notice and that has been or will be delivered for
purchase by the Company.
(f) Subject to applicable escheat laws, as provided in the
Securities, the Trustee and the Paying Agent shall return to the Company any
cash that remains unclaimed, together with interest or dividends, if any,
thereon, held by them for the payment of the Change of Control Purchase Price;
PROVIDED, HOWEVER, that, (x) to the extent that the aggregate amount of cash
deposited by the Company pursuant to clause (ii) of paragraph (d) above exceeds
the aggregate Change of Control Purchase Price of the Securities or portions
thereof to be purchased, then the Trustee shall hold such excess for the Company
and (y) unless otherwise directed by the Company in writing, promptly after the
Business Day following the Change of Control Purchase Date the Trustee shall
return any such excess to the Company together with interest, if any, thereon.
<PAGE>
87
The Company shall not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements applicable to a Change of Control Offer made by the Company and
purchases all Securities validly tendered and not withdrawn under such Change of
Control Offer.
(g) The Company shall comply with the applicable tender offer
rules, including any such rules with respect to unlawful tender offer practices,
and any other applicable securities laws or regulations in connection with a
Change of Control Offer.
(h) The Company shall not, and shall not permit any Subsidiary
to, create or permit to exist or become effective any restriction (other than
restrictions existing under Indebtedness as in effect on the date of this
Indenture or under any refinancings thereof no more onerous than the
restrictions as in effect on the date of this Indenture) that would materially
impair the ability of the Company to make a Change of Control Offer to purchase
the Securities or, if such Change of Control Offer is made, to pay for the
Securities tendered for purchase.
Section 1016. LIMITATION ON SUBSIDIARY CAPITAL STOCK.
The Company shall not, and shall not permit any Subsidiary of
the Company to, issue, sell or otherwise transfer any Capital Stock of any
Subsidiary, except for (i) Capital Stock issued to and held by the Company or a
Wholly Owned Subsidiary, and (ii) Capital 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 Capital Stock was not issued or incurred by such Person in anticipation of
the type of transaction contemplated by subclause (A), (B) or (C).
Section 1017. LIMITATION ON DIVIDENDS AND OTHER PAYMENT RESTRICTIONS
AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make any other distribution on
its Capital Stock, (ii) pay any Indebtedness owed to the Company or any other
Subsidiary, (iii) make any Investment in the Company or any other Subsidiary or
(iv) transfer any of its properties or assets to the Company or any other
Subsidiary, except (a) any encumbrance or restriction under the Credit Facility;
(b) any encumbrance or restriction, with respect to a Subsidiary that is not a
Subsidiary of the Company on the date of this Indenture, in existence at the
time such Person becomes a Subsidiary of the Company and not incurred in
connection with, or in contemplation of, such Person becoming a Subsidiary; and
(c) any encumbrance or restriction existing under any agreement that extends,
renews, refinances or replaces the agreements containing the encumbrances or
restrictions in the foregoing clauses (a) or (b), or in this clause (c),
<PAGE>
88
PROVIDED that the terms and conditions of any such encumbrances or restrictions
are no more restrictive in any material respect than those under or pursuant to
the agreement evidencing the Indebtedness so extended, renewed, refinanced or
replaced.
Section 1018. PROVISION OF FINANCIAL STATEMENTS.
Whether or not the Company is subject to Section 13(a) or
15(d) of the Exchange Act, the Company shall, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Company would have been required to file with the
Commission pursuant to such Sections 13(a) or 15(d) if the Company were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (y) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost.
Section 1019. STATEMENT BY OFFICERS AS TO DEFAULT.
(a) The Company will deliver to the Trustee, on or before a
date not more than 60 days after the end of each fiscal quarter and not more
than 120 days after the end of each fiscal year of the Company ending after the
date hereof, a written statement signed by two executive officers of the
Company, one of whom shall be the principal executive officer, principal
financial officer or principal accounting officer of the Company, stating
whether or not, after a review of the activities of the Company during such year
or such quarter and of the Company's performance under this Indenture, to the
best knowledge, based on such review, of the signers thereof, the Company has
fulfilled all of its obligations and is in compliance with all conditions and
covenants under this Indenture throughout such year or quarter, as the case may
be, and, if there has been a Default specifying each Default and the nature and
status thereof and any actions being taken by the Company with respect thereto.
(b) When any Default or Event of Default has occurred and is
continuing, or if the Trustee or any Holder or the trustee for or the holder of
any other evidence of Indebtedness of the Company or any Subsidiary gives any
notice or takes any other action with respect to a claimed default, the Company
shall deliver to the Trustee by registered or certified mail or facsimile
transmission followed by hard copy an Officers'
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89
Certificate specifying such Default, Event of Default, notice or other action,
the status thereof and what actions the Company is taking or proposes to take
with respect thereto, within five Business Days of its occurrence.
Section 1020. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1006 through 1012, 1014 and 1016
through 1018, if, before or after the time for such compliance, the Holders of
not less than a majority in aggregate Accreted Value of the Securities at the
time Outstanding shall, by Act of such Holders, waive such compliance in such
instance with such covenantor condition, but no such waiver shall extend to or
affect such covenant or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. RIGHTS OF REDEMPTION.
(a) The Securities may be redeemed at the election of the
Company, in whole or in part, at any time, subject to the conditions, and at the
Redemption Prices specified in the form of Security, together with accrued and
unpaid interest, if any, to the Redemption Date (subject to the right of Holders
of record on relevant Regular Record Dates and Special Record Dates to receive
interest due on relevant Interest Payment Dates and Special Payment Dates).
Section 1102. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article Eleven.
Section 1103. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Company Order and an Officers'
Certificate. In case of any redemption at the election of the Company, the
Company shall, not less than 45 nor more than 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice period shall be satisfactory
to the Trustee), notify the Trustee in writing of such Redemption Date and of
the Accreted Value of Securities to be redeemed.
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90
Section 1104. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the
particular Securities or portions thereof to be redeemed shall be selected not
more than 30 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption in compliance with
the requirements of the principal national securities exchange, if any, on which
the Securities being redeemed are listed, or if the Securities are not listed on
a national securities exchange, pro rata, by lot or such other method as the
Trustee shall deem fair and reasonable, and the amounts to be redeemed may be
equal to Accreted Values with Original Issue Price of $100 or an integral
multiple thereof.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the Accreted Value thereof to
be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the Accreted Value of such Security which has been or is to be
redeemed.
Section 1105. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price.
(c) if less than all Outstanding Securities are to be
redeemed, the identification of the particular Securities to be redeemed;
(d) in the case of a Security to be redeemed in part, the
Accreted Value amount of such Security, to be redeemed and that after the
Redemption Date upon surrender of such Security, new Security or Securities in
the aggregate Accreted Value equal to the unredeemed portion thereof will be
issued;
(e) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price;
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(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or portion thereof to be
redeemed, and that (unless the Company shall default in payment of the
Redemption Price) interest thereon shall cease to accrue on and after said date;
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(h) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
If the Company elects to give notice of redemption, it shall provide the Trustee
with a certificate stating that such notice has been given in compliance with
the requirements of this Section 1105.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the Holder receives
such notice. In any case, failure to give such notice by mail or any defect in
the notice to the Holder of any Security designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of
any other Security.
Section 1106. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company or any of its
Affiliates is acting as Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in same day funds sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date or Special Payment Date) accrued interest on, all the Securities or
portions thereof which are to be redeemed on that date. All money earned on
funds held in trust by the Trustee or any Paying Agent shall be remitted to the
Company.
Section 1107. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price together with
accrued interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Regular Record Dates and Special
Record Dates according to the terms and
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92
the provisions of Section 307 (unless the Company shall have elected to pay such
interest through an addition to the Accreted Value of the Securities).
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Accreted Value and premium, if any,
shall, until paid, bear interest from the Redemption Date at the rate borne by
such Security.
Section 1108. SECURITIES REDEEMED OR PURCHASED IN PART.
Any Security which is to be redeemed or purchased only in part
shall be surrendered to the Paying Agent at the office or agency maintained for
such purpose pursuant to Section 1002 (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar or the Trustee, as the case may be, duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Accreted Value
equal to, and in exchange for, the unredeemed portion of the Accreted Value of
the Security so surrendered that is not redeemed or purchased.
ARTICLE XII
SATISFACTION AND DISCHARGE
Section 1201. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of Securities herein
expressly provided for) and the Trustee, upon Company Request and at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306
or (ii) all Securities for whose payment United States dollars have
theretofore been deposited in trust or segregated and held in trust by
the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
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93
(2) all such Securities not theretofore delivered to
the Trustee for cancellation (x) have become due and payable, (y) will
become due and payable at their Stated Maturity within one year or (z)
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company; and the
Company has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust an amount, in United States dollars
sufficient to pay and discharge the entire Indebtedness on the
Securities not theretofore delivered to the Trustee for cancellation,
including the Accreted Value of, premium, if any, and accrued interest
on such Securities at such Maturity, Stated Maturity or Redemption
Date;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Independent Counsel each stating that (i) all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with and (ii) such satisfaction
and discharge will not result in a breach or violation of, or constitute a
default under, this Indenture or any other material agreement or instrument to
which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary is bound.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 607 and,
if United States dollars shall have been deposited with the Trustee pursuant to
subclause (2) of Subsection (a) of this Section 1201, the obligations of the
Trustee under Section 1202 and the last paragraph of Section 1003 shall survive.
Section 1202. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all United States dollars deposited with the Trustee pursuant to Section
1201 shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the
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94
Accreted Value of, premium, if any, and interest on the Securities for whose
payment such United States dollars have been deposited with the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the day and year first above written.
LOEHMANN'S HOLDINGS INC.
By:
-----------------------------
Name: Robert N. Friedman
Title: Chairman and CEO
Attest:
--------------------------------
Name: Robert Glass
Title: President and Secretary
. UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee.
By:
------------------------
Name:
Title:
Attest:
---------------------------
Name:
Title:
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _____________, 2000, before me personally came
________________ to me known, who, being by me duly sworn, did depose and say
that he resides at ____________________________; that he is ____________ of
Loehmann's Holdings Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like authority.
(NOTARIAL SEAL)
/s/
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of ____________, 2000, before me personally came
_________________ to me known, who, being by me duly sworn, did depose and say
that he resides at _________________; that he is ______________ of United States
Trust Company of New York, one of the corporations described in and which
executed the foregoing instrument; that he knows the corporate seal of such
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed pursuant to authority of the Board of Directors of such
corporation; and that he signed his name thereto pursuant to like authority.
(NOTARIAL SEAL)
/s/
