<PAGE> 1
EXHIBIT 4.1
UNITED STATES CAN COMPANY,
Issuer
U.S. CAN CORPORATION,
Parent Guarantor
BANK ONE TRUST COMPANY, N.A.,
Trustee
INDENTURE
Dated as of October 4, 2000
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12 3/8% Senior Subordinated Notes Due 2010
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CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
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310(a)(1) ....................................................................................... 7.10
(a)(2) .......................................................................................... 7.10
(a)(3) .......................................................................................... N.A.
(a)(4) .......................................................................................... N.A.
(b) ............................................................................................. 7.08; 7.10
(c) ............................................................................................. N.A.
311(a) .......................................................................................... 7.11
(b) ............................................................................................. 7.11
(c) ............................................................................................. N.A.
312(a) .......................................................................................... 2.05
(b) ............................................................................................. 12.03
(c) ............................................................................................. 12.03
313(a) .......................................................................................... 7.06
(b)(1) .......................................................................................... N.A.
(b)(2) .......................................................................................... 7.06
(c) ............................................................................................. 12.02
(d) ............................................................................................. 7.06
314(a) .......................................................................................... 4.02;
4.11; 12.02
(b) ............................................................................................. N.A.
(c)(1) .......................................................................................... 12.04
(c)(2) .......................................................................................... 12.04
(c)(3) .......................................................................................... N.A.
(d) ............................................................................................. N.A.
(e) ............................................................................................. 12.05
(f) ............................................................................................. 4.11
315(a)........................................................................................... 7.01
(b) ............................................................................................. 7.05; 12.02
(c) ............................................................................................. 7.01
(d) ............................................................................................. 7.01
(e) ............................................................................................. 6.11
316(a)(last sentence) ........................................................................... 12.06
(a)(1)(A) ....................................................................................... 6.05
(a)(1)(B) ....................................................................................... 6.04
(a)(2) .......................................................................................... N.A.
(b) ............................................................................................. 6.07
317(a)(1) ....................................................................................... 6.08
(a)(2) .......................................................................................... 6.09
(b) ............................................................................................. 2.04
318(a) .......................................................................................... 12.01
</TABLE>
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"N.A." means Not Applicable.
----------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of this Indenture.
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TABLE OF CONTENTS
<TABLE>
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.............................................................1
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Other Definitions........................................................................21
SECTION 1.03. Incorporation by Reference of Trust Indenture Act........................................21
SECTION 1.04. Rules of Construction....................................................................22
ARTICLE 2 THE SECURITIES........................................................................................22
SECTION 2.01. Form and Dating..........................................................................22
SECTION 2.02. Execution and Authentication.............................................................23
SECTION 2.03. Registrar and Paying Agent...............................................................23
SECTION 2.04. Paying Agent To Hold Money in Trust......................................................24
SECTION 2.05. Holder Lists.............................................................................24
SECTION 2.06. Replacement Securities...................................................................25
SECTION 2.07. Outstanding Securities...................................................................25
SECTION 2.08. Temporary Securities.....................................................................25
SECTION 2.09. Cancellation.............................................................................25
SECTION 2.10. Defaulted Interest.......................................................................26
SECTION 2.11. CUSIP Numbers............................................................................26
SECTION 2.12. Securities Depository....................................................................26
ARTICLE 3 REDEMPTION............................................................................................27
SECTION 3.01. Notices to Trustee.......................................................................27
SECTION 3.02. Selection of Securities To Be Redeemed...................................................27
SECTION 3.03. Notice of Redemption.....................................................................27
SECTION 3.04. Effect of Notice of Redemption...........................................................28
SECTION 3.05. Deposit of Redemption Price..............................................................28
SECTION 3.06. Securities Redeemed in Part..............................................................28
SECTION 3.07. Optional Redemption......................................................................28
ARTICLE 4 COVENANTS.............................................................................................29
SECTION 4.01. Payment of Securities....................................................................29
SECTION 4.02. Commission Reports.......................................................................30
SECTION 4.03. Limitation on Indebtedness...............................................................30
SECTION 4.04. Limitation on Restricted Payments........................................................30
SECTION 4.05. Limitation on Dividends and Other Payment Restrictions Affecting Restricted
Subsidiaries.............................................................................33
SECTION 4.06. Limitation on Asset Dispositions.........................................................34
SECTION 4.07. Limitation on Transactions with Affiliates...............................................36
SECTION 4.08. Change of Control........................................................................37
SECTION 4.09. Designation of Restricted and Unrestricted Subsidiaries..................................39
SECTION 4.10. Limitation on Layered Indebtedness.......................................................39
SECTION 4.11. Compliance Certificate...................................................................39
SECTION 4.12. Further Instruments and Acts.............................................................40
SECTION 4.13. Limitation on Liens......................................................................40
SECTION 4.14. Future Subsidiary Guarantors.............................................................40
</TABLE>
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<TABLE>
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ARTICLE 5 SURVIVING ENTITY......................................................................................40
SECTION 5.01. Merger, Consolidation and Sale of Assets.................................................40
ARTICLE 6 DEFAULTS AND REMEDIES.................................................................................42
SECTION 6.01. Events of Default........................................................................42
SECTION 6.02. Acceleration.............................................................................43
SECTION 6.03. Other Remedies...........................................................................44
SECTION 6.04. Waiver of Past Defaults..................................................................44
SECTION 6.05. Control by Majority......................................................................44
SECTION 6.06. Limitation on Suits......................................................................44
SECTION 6.07. Rights of Holders to Receive Payment.....................................................45
SECTION 6.08. Collection Suit by Trustee...............................................................45
SECTION 6.09. Trustee May File Proofs of Claim.........................................................45
SECTION 6.10. Priorities...............................................................................45
SECTION 6.11. Undertaking for Costs....................................................................46
SECTION 6.12. Waiver of Stay or Extension Laws.........................................................46
ARTICLE 7 TRUSTEE...............................................................................................46
SECTION 7.01. Duties of Trustee........................................................................46
SECTION 7.02. Rights of Trustee........................................................................47
SECTION 7.03. Individual Rights of Trustee.............................................................48
SECTION 7.04. Trustee's Disclaimer.....................................................................48
SECTION 7.05. Notice of Defaults.......................................................................49
SECTION 7.06. Reports by Trustee to Holders............................................................49
SECTION 7.07. Compensation and Indemnity...............................................................49
SECTION 7.08. Replacement of Trustee...................................................................50
SECTION 7.09. Successor Trustee by Merger..............................................................50
SECTION 7.10. Eligibility; Disqualification............................................................51
SECTION 7.11. Preferential Collection of Claims Against Company........................................51
ARTICLE 8 DISCHARGE OF INDENTURE; DEFEASANCE....................................................................51
SECTION 8.01. Discharge of Liability on Securities; Defeasance.........................................51
SECTION 8.02. Conditions to Defeasance.................................................................52
SECTION 8.03. Application of Trust Money...............................................................53
SECTION 8.04. Repayment to Company.....................................................................54
SECTION 8.05. Indemnity for Government Obligations.....................................................54
SECTION 8.06. Reinstatement............................................................................54
ARTICLE 9 AMENDMENTS............................................................................................54
SECTION 9.01. Without Consent of Holders...............................................................54
SECTION 9.02. With Consent of Holders..................................................................55
SECTION 9.03. Compliance with Trust Indenture Act......................................................56
SECTION 9.04. Revocation and Effect of Consents and Waivers............................................56
SECTION 9.05. Notation on or Exchange of Securities....................................................57
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SECTION 9.06. Trustee to Sign Amendments...............................................................57
SECTION 9.07. Payment for Consent......................................................................57
ARTICLE 10 SUBORDINATION OF SECURITIES..........................................................................57
SECTION 10.01. Agreement to Subordinate................................................................57
SECTION 10.02. Liquidation, Dissolution, Bankruptcy....................................................58
SECTION 10.03. Default on Senior Indebtedness..........................................................58
SECTION 10.04. Acceleration of Payment of Securities...................................................59
SECTION 10.05. When Distribution Must Be Paid Over.....................................................59
SECTION 10.06. Subrogation.............................................................................59
SECTION 10.07. Relative Rights.........................................................................59
SECTION 10.08. Subordination May Not Be Impaired by Company............................................59
SECTION 10.09. Rights of Trustee and Paying Agent......................................................59
SECTION 10.10. Distribution or Notice to Representative................................................60
SECTION 10.11. Article 10 Not to Prevent Events of Default or Limit Right to Accelerate................60
SECTION 10.12. Trust Moneys Not Subordinated...........................................................60
SECTION 10.13. Trustee Entitled to Rely................................................................60
SECTION 10.14. Trustee to Effectuate Subordination.....................................................61
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior Indebtedness................................61
SECTION 10.16. Reliance by Holders of Senior Indebtedness on Subordination Provisions..................61
ARTICLE 11 GUARANTIES; SUBORDINATION OF GUARANTIES..............................................................61
SECTION 11.01. Parent and Subsidiary Guaranties........................................................61
SECTION 11.02. Contribution............................................................................62
SECTION 11.03. Agreement to Subordinate................................................................63
SECTION 11.04. Liquidation, Dissolution, Bankruptcy....................................................63
SECTION 11.05. Default on Senior Indebtedness of the Guarantors........................................63
SECTION 11.06. Acceleration of Payment of Securities...................................................64
SECTION 11.07. When Distribution Must Be Paid Over.....................................................64
SECTION 11.08. Subrogation.............................................................................64
SECTION 11.09. Relative Rights.........................................................................65
SECTION 11.10. Subordination May Not Be Impaired by the Guarantors.....................................65
SECTION 11.11. Rights of Trustee and Paying Agent......................................................65
SECTION 11.12. Distribution or Notice to Representative................................................65
SECTION 11.13. Article 11 Not to Prevent Events of Default or Limit Right to Accelerate................65
SECTION 11.14. Trust Moneys Not Subordinated...........................................................65
SECTION 11.15. Trustee Entitled to Rely................................................................66
SECTION 11.16. Trustee to Effectuate Subordination.....................................................66
SECTION 11.17. Trustee Not Fiduciary for Holders of Senior Indebtedness of the Guarantors..............66
SECTION 11.18. Reliance by Holders of Senior Indebtedness of the Guarantors on Subordination
Provisions..............................................................................66
SECTION 11.19. Release of Guarantors...................................................................67
</TABLE>
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<TABLE>
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ARTICLE 12 MISCELLANEOUS........................................................................................67
SECTION 12.01. Trust Indenture Act Controls............................................................67
SECTION 12.02. Notices.................................................................................67
SECTION 12.03. Communication by Holders with Other Holders.............................................68
SECTION 12.04. Certificate and Opinion as to Conditions Precedent......................................68
SECTION 12.05. Statements Required in Certificate or Opinion...........................................68
SECTION 12.06. When Securities Disregarded.............................................................69
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar............................................69
SECTION 12.08. Legal Holidays..........................................................................69
SECTION 12.09. GOVERNING LAW...........................................................................69
SECTION 12.10. No Recourse Against Others..............................................................69
SECTION 12.11. Successors..............................................................................70
SECTION 12.12. Multiple Originals......................................................................70
SECTION 12.13. Table of Contents; Headings.............................................................70
SECTION 12.14. Severability............................................................................70
</TABLE>
Exhibit A - Form of Face of Initial Notes
Exhibit B - Form of Face of Exchange Note
<PAGE> 8
INDENTURE, dated as of October 4, 2000, among UNITED STATES
CAN COMPANY, a Delaware corporation (the "Company"), U.S. CAN CORPORATION, a
Delaware corporation and the Company's sole stockholder (the "Parent
Guarantor"), the Subsidiary Guarantors (as defined herein) and BANK ONE TRUST
COMPANY, N.A., a national banking association (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders (as defined herein)
of (i) the Company's 12 3/8% Senior Subordinated Notes Due 2010 issued on the
date hereof, (ii) any Additional Notes (as defined herein) that may be issued on
any other Issue Date (all such Securities in clauses (i) and (ii) being referred
to collectively as the "Initial Notes"), (iii) if and when issued in exchange
for the Initial Notes, the Company's Series B 12*% Senior Subordinated Notes Due
2010 (the "Exchange Notes"). Except as otherwise provided herein, the Securities
will be limited to $275,000,000 in aggregate principal amount outstanding, of
which $175,000,000 in aggregate principal amount will be initially issued on the
date hereof. Subject to the conditions set forth herein, the Company may issue
up to an additional $100,000,000 aggregate principal amount of Securities.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"10-1/8% Notes" means the 10-1/8% Senior Subordinated Notes
due 2006 of the Parent Guarantor.
"Additional Assets" means (i) any property or assets (other
than Indebtedness and Capital Stock) that are used or intended to be used in a
Related Business; (ii) Capital Stock of a Person that becomes a Restricted
Subsidiary as a result of the acquisition of such Capital Stock by the Company
or another Restricted Subsidiary; or (iii) Capital Stock constituting a minority
interest in any Person that at such time is a Restricted Subsidiary; provided,
however, that, in the case of clauses (ii) and (iii), such Restricted Subsidiary
is primarily engaged in a Related Business.
"Additional Notes" means up to $100,000,000 in aggregate
principal amount of Initial Notes initially issued subsequent to the date hereof
pursuant to Article II and in compliance with Section 4.03.
"Affiliate" of any specified Person means (i) any other
Person, directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person or (ii) any other Person who
is a director or officer (a) of such specified Person, (b) of any subsidiary of
such specified Person or (c) of any Person described in clause (i) above. For
the purposes of this definition, "control" when used with respect to any Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. For purposes of Section 4.07 only,
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"Affiliate" shall also mean any beneficial owner of shares representing 10% or
more of the total voting power of the Voting Stock (on a fully diluted basis) of
the Company or of rights or warrants to purchase such Voting Stock (whether or
not currently exercisable) and any Person who would be an Affiliate of any such
beneficial owner pursuant to the first sentence of this definition.
"Asset Disposition" means any direct or indirect sale
including a Sale/Leaseback Transaction, lease, transfer, conveyance or other
disposition (or series of related sales, Sale/Leaseback Transactions, leases,
transfers, conveyances or dispositions) of shares of Capital Stock of a
Restricted Subsidiary (other than directors' qualifying shares), property or
other assets (each referred to for the purposes of this definition as a
"disposition") by the Company, the Parent Guarantor or any of the Restricted
Subsidiaries other than (a) a disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to a Wholly Owned
Subsidiary, (b) a disposition of property or assets at Fair Market Value in the
ordinary course of business of the Company or any of the Restricted
Subsidiaries, as applicable, (c) a disposition with a Fair Market Value and a
sale price of less than $5 million, (d) operating leases entered in the ordinary
course of business, (e) for purposes of Section 4.06, only, a disposition
subject to the limitations set forth under Section 4.04 and (f) when used with
respect to the Company or any Guarantor, any Asset Disposition pursuant to
Section 5.01 which constitutes a disposition of all or substantially all of the
Company's or such Guarantor's property.
"Attributable Indebtedness" means Indebtedness deemed to be
Incurred in respect of a Sale/Leaseback Transaction and shall be, at the date of
determination, the present value (discounted at the actual rate of interest
implicit in such transaction, compounded annually) of the total obligations of
the lessee for rental payments during the remaining term of the lease included
in such Sale/Leaseback Transaction (including any period for which such lease
has been extended).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness or Preferred Stock, the quotient obtained by
dividing (i) the sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal payment of
such Indebtedness or redemption or similar payment with respect to such
Preferred Stock multiplied by the amount of such payment by (ii) the sum of all
such payments.
"Bank Indebtedness" means any and all amounts payable under or
in respect of the Credit Agreement from time to time, whether outstanding on the
Issue Date or thereafter incurred, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company or any Guarantor
whether or not a claim for post-filing interest is allowed in such proceedings),
fees, charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof.
"Board of Directors" means, as applicable, the Board of
Directors of the Company or the Parent Guarantor, or any committee thereof duly
authorized to act on behalf of such Board of Directors.
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"Business Day" shall mean any Monday, Tuesday, Wednesday,
Thursday, or Friday which is not a Legal Holiday.
"Capital Expenditure Indebtedness" means Indebtedness issued
to finance the purchase or construction of any assets acquired or constructed
after the Issue Date (i) to the extent the purchase or construction prices for
such assets are or should be included in "addition to property, plant or
equipment" in accordance with GAAP, (ii) if the acquisition or construction of
such assets is not part of any acquisition of a person or business unit and
(iii) if such Indebtedness is issued within 360 days of the acquisition or
completion of construction of such assets.
"Capitalized Lease Obligations" means an obligation that is
required to be classified and accounted for as a capitalized lease for financial
reporting purposes in accordance with GAAP; and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with GAAP; and the Stated Maturity thereof
shall be the date of the last payment of rent or any other amount due under such
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities convertible or
exchangeable into such equity.
"Certified Resolution" means a duly adopted resolution of the
Board of Directors in full force and effect at the time of determination and
certified as such by the Secretary or an Assistant Secretary of the Company or
the Parent Guarantor, as applicable.
"Change of Control" means the occurrence of any of the
following events: (a) prior to the first Public Equity Offering that results in
a Public Market, (i) the Permitted Holders cease to be the "beneficial owners"
(as defined in Rule 13d-3 under the Exchange Act, except that a Person will be
deemed to have "beneficial ownership" of all shares that any such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of at least 40% of the total
voting power of the Voting Stock of the Company or the Parent Guarantor, whether
as a result of the issuance of securities of the Company or the Parent
Guarantor, any merger, consolidation, liquidation or dissolution of the Company
or the Parent Guarantor, any direct or indirect transfer of securities by the
Permitted Holders or otherwise, or (ii) any "person" or "group" (as such terms
are used in Section 13(d) or Section 14(d) of the Exchange Act or any successor
provisions to either of the foregoing, including any group acting for the
purpose of acquiring, voting or disposing of securities within the meaning of
Rule 13d-5(b)(1) under the Exchange Act) becomes the "beneficial owner" (as
defined above), directly or indirectly, of more Voting Stock of the Company or
the Parent Guarantor than is "beneficially owned" by the Permitted Holders (for
purposes of this clause (a) the Permitted Holders will be deemed to beneficially
own any Voting Stock of a specified corporation held by a parent corporation so
long as the Permitted Holders beneficially own, directly or indirectly, in the
aggregate a majority of the total voting power of the Voting Stock of such
parent corporation); (b) on or after the first Public Equity Offering that
results in a Public
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Market, if any "person" or "group" (as such terms are used in Sections 13(d) and
14(d) of the Exchange Act or any successor provisions to either of the
foregoing), including any group acting for the purpose of acquiring, holding,
voting or disposing of securities within the meaning of Rule 13d-5(b)(1) under
the Exchange Act, other than one or more Permitted Holders or an underwriter
engaged in a firm commitment underwriting in connection with a public offering
of the Voting Stock of the Company or the Parent Guarantor, is or becomes the
"beneficial owner" (as such term is used in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50% of the total voting power of the Voting
Stock of the Company or the Parent Guarantor; (c) the Company or the Parent
Guarantor consolidates or merges with or into any other Person, other than a
consolidation or merger (i) with a Wholly Owned Subsidiary or a Permitted Holder
or (ii) pursuant to a transaction in which the outstanding Voting Stock of the
Company or the Parent Guarantor is changed into or exchanged for cash,
securities or other property with the effect that (x) the outstanding Voting
Stock of the Company or the Parent Guarantor is changed into or exchanged for
other Voting Stock of the Company, the Parent Guarantor or the surviving
corporation, or (y) the beneficial owners of the outstanding Voting Stock of the
Company or the Parent Guarantor immediately prior to such transaction,
beneficially own, directly or indirectly, more than 50% of the total voting
power of the Voting Stock of the surviving corporation immediately following
such transaction, (d) the Company, the Parent Guarantor or any of the Restricted
Subsidiaries, directly or indirectly, sells, assigns, conveys, transfers,
leases, or otherwise disposes of, in one transaction or a series of related
transactions, all or substantially all of the property or assets of the Company,
the Parent Guarantor and the Restricted Subsidiaries to any Person or group of
related Persons (as such term is used in Section 13(d) of the Exchange Act),
other than the Company, a Wholly Owned Subsidiary or a Permitted Holder; or (e)
the stockholders of the Company or the Parent Guarantor shall have approved any
plan of liquidation or dissolution of the Company or the Parent Guarantor, as
the case may be. For purposes of this definition, the collective parties to the
Stockholder Agreement, as such may be amended from time to time, shall not
constitute a "group" solely as a result of being parties to the Stockholder
Agreement.
"Closing Date" means October 4, 2000.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the United States Securities and Exchange
Commission.
"Company" means the party named as such in this Indenture
until a successor replaces it and, thereafter, means the successor and, for
purposes of any provision contained herein and required by the TIA, each other
obligor on the indenture securities.
"Company Order" means a written order signed in the name of
the Company by its Chairman of the Board, its President or a Vice President, and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Coverage Ratio" as of any date of determination
means the ratio of
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(i) the aggregate amount of EBITDA for the period of the most recent four
consecutive fiscal quarters ending at least 30 days prior to the date of such
determination to (ii) Consolidated Interest Expense for such four fiscal
quarters; provided, however, that (a) if the Company or any Restricted
Subsidiary has Incurred any Indebtedness (other than revolving credit borrowings
made in the ordinary course of business for working capital purposes) since the
beginning of such period that remains outstanding, or if the transaction giving
rise to the need to calculate the Consolidated Coverage Ratio is an Incurrence
of Indebtedness, or both, Consolidated Interest Expense for such period shall be
calculated after giving effect on a pro forma basis to such Indebtedness as if
such Indebtedness had been Incurred on the first day of such period, and the
discharge of any other Indebtedness repaid, repurchased, defeased or otherwise
discharged with the proceeds of such new Indebtedness as if such discharge had
occurred on the first day of such period; (b) if, since the beginning of such
period, the Company or any Restricted Subsidiary shall have made any Asset
Disposition, or if the transaction giving rise to the need to calculate the
Consolidated Coverage Ratio is an Asset Disposition, the EBITDA for such period
shall be reduced by an amount equal to the EBITDA (if positive) directly
attributable to the assets which are the subject of such Asset Disposition for
such period, or increased by an amount equal to the EBITDA (if negative)
directly attributable thereto for such period, as if such Asset Disposition had
occurred on the first day of such period, and Consolidated Interest Expense for
such period shall be reduced by an amount equal to the Consolidated Interest
Expense directly attributable to any Indebtedness of the Company or any
Restricted Subsidiary repaid, repurchased, defeased or otherwise discharged with
respect to the Company and its continuing Restricted Subsidiaries in connection
with such Asset Disposition for such period as if such Asset Disposition had
occurred on the first day of such period (or, if the Capital Stock of any
Restricted Subsidiary is sold, the Consolidated Interest Expense for such period
as if such Asset Disposition had occurred on the first day of such period
directly attributable to the Indebtedness of such Restricted Subsidiary to the
extent the Company and its continuing Restricted Subsidiaries are no longer
liable for such Indebtedness after such sale); (c) if, since the beginning of
such period the Company or any Restricted Subsidiary (by merger or otherwise)
shall have made an Investment in any Restricted Subsidiary (or any Person which
becomes a Restricted Subsidiary), or an acquisition of assets (including any
acquisition of assets occurring in connection with a transaction causing a
calculation to be made hereunder) which constitutes all or substantially all of
an operating unit of a business, EBITDA and Consolidated Interest Expense for
such period shall be calculated after giving pro forma effect thereto (including
the Incurrence of any Indebtedness) as if such Investment or acquisition
occurred on the first day of such period; and (d) if since the beginning of such
period any Person (that subsequently became a Restricted Subsidiary or was
merged with or into the Company or any Restricted Subsidiary since the beginning
of such period) shall have made any Asset Disposition or any Investment that
would have required an adjustment pursuant to clause (b) or (c) above if made by
the Company or a Restricted Subsidiary during such period, EBITDA and
Consolidated Interest Expense for such period shall be calculated after giving
pro forma effect thereto as if such Asset Disposition or Investment occurred on
the first day of such period. For purposes of this definition, whenever pro
forma effect is to be given to an acquisition of assets, the pro forma
calculations of the amount of income or earnings relating thereto and the amount
of Consolidated Interest Expense associated with any Indebtedness Incurred in
connection therewith shall be determined in good faith by a responsible
financial or accounting officer of the Company and as further contemplated by
the definition of pro forma. If any
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<PAGE> 13
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness shall be calculated as if the
rate in effect on the date of determination had been the applicable rate for the
entire period (taking into account any Interest Rate Agreement applicable to
such Indebtedness if such Interest Rate Agreement has a remaining term in excess
of 12 months).
"Consolidated Interest Expense" means, for any period, the
total interest expense of the Company and its Restricted Subsidiaries determined
in accordance with GAAP, plus, to the extent not included in such interest
expense, (i) interest expense attributable to Capitalized Lease Obligations,
(ii) amortization of debt discount and debt issuance cost, (iii) capitalized
interest, (iv) non-cash interest expense, (v) accrued interest, (vi)
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing, (vii) to the extent any
Indebtedness of any Person is Guaranteed by the Company or any Restricted
Subsidiary, the aggregate amount of interest related to such Guarantee actually
paid or required by GAAP to be accrued in the Company's financial statements,
(viii) net costs associated with Interest Rate Agreements and Currency Exchange
Agreements (including, in each case, amortization of fees), (ix) the interest
portion of any deferred obligation, (x) Preferred Stock Dividends in respect of
all Preferred Stock of the Company and its Restricted Subsidiaries and
Redeemable Stock of the Company held by Persons other than the Company or a
Wholly Owned Subsidiary, (xi) fees payable in connection with financings to the
extent not being amortized as contemplated by (ii) above, including commitment,
availability and similar fees and (xii) the cash contributions to any employee
stock ownership plan or similar trust to the extent such contributions are used
by such plan or trust to pay interest or fees to any Person (other than the
Company) in connection with Indebtedness Incurred by such plan or trust.
"Consolidated Net Income" means, for any period, the net
income (loss) of the Company and its Subsidiaries determined in accordance with
GAAP; provided, however, that there shall not be included in such Consolidated
Net Income (i) any net income (loss) of any Person if such Person is not a
Restricted Subsidiary, except that (a) subject to the limitations contained in
clause (iv) below, the Company's equity in the net income of any such Person for
such period shall be included in such Consolidated Net Income up to the
aggregate amount of cash actually distributed by such Person during such period
to the Company or a Restricted Subsidiary as a dividend or other distribution
(subject, in the case of a dividend or other distribution to a Restricted
Subsidiary, to the limitations contained in clause (iii) below) and (b) the
Company's equity in a net loss of any such Person (including an Unrestricted
Subsidiary) for such period shall be included in determining such Consolidated
Net Income to the extent funded in cash by the Company, (ii) except as required
by the pro forma requirements of the definition of "Consolidated Coverage
Ratio", any net income (loss) of any Person acquired by the Company or a
Subsidiary in a pooling of interests transaction for any period prior to the
date of such acquisition, (iii) any net income (loss) of any Restricted
Subsidiary if such Subsidiary is subject to restrictions, directly or
indirectly, on the payment of dividends or the making of distributions by such
Restricted Subsidiary, directly or indirectly, to the Company (other than
pursuant to the Credit Agreement), except that (a) subject to the limitations
contained in clause (iv) below, the Company's equity in the net income of any
such Restricted Subsidiary for such period shall be included in such
Consolidated Net Income up to the aggregate amount of cash that could have been
distributed by such Restricted Subsidiary during such period to the Company or
another
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<PAGE> 14
Restricted Subsidiary as a dividend (subject, in the case of a dividend to
another Restricted Subsidiary, to the limitation contained in this clause) and
(b) the Company's equity in a net loss of any such Restricted Subsidiary for
such period shall be included in determining such Consolidated Net Income, (iv)
any gain or loss realized upon the sale or other disposition of any property,
plant or equipment of the Company or its consolidated Subsidiaries (including
pursuant to any Sale/Leaseback Transaction) which is not sold or otherwise
disposed of in the ordinary course of business and any gain or loss realized
upon the sale or other disposition of any Capital Stock of any Person, (v) any
extraordinary gain or loss, (vi) the cumulative effect of a change in accounting
principles, (vii) non-cash compensation charges incurred as a result of the
issuance of employee stock options or restricted stock for less than fair market
value and (viii) the non-recurring fees, expenses and other costs incurred in
connection with the Transactions that are reflected in the financial statements
of the Company in the period the Transactions are consummated.
"Credit Agreement" means that certain Credit Agreement, dated
October 4, 2000, as amended, among the Company and the Guarantors and the
syndicate of lenders named therein, together with any guarantees, collateral
documents or other instruments or agreements executed in connection therewith,
as the same may be amended, supplemented or otherwise modified from time to time
and any renewal, extensions, revisions, restructuring, refinancings or
replacements thereof (whether with the original agent or agents or lenders or
other agents or lenders and whether pursuant to the original credit agreement or
another credit or other agreement or indenture).
"Currency Exchange Agreement" means, in respect of any Person,
any foreign currency swap agreement or other agreement pursuant to which the
Company, the Parent Guarantor or any of the Company's Subsidiaries hedge their
exposure to foreign currency exchange rates in connection with their business
operations.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means (i) the Bank
Indebtedness and (ii) any other Senior Indebtedness which, at the date of
determination, has an aggregate principal amount outstanding of, or under which,
at the date of determination, the holders thereof are committed to lend up to,
at least $25 million, and is specifically designated by the Company in the
instrument evidencing or governing such Senior Indebtedness as "Designated
Senior Indebtedness" for purposes of this Indenture and has been designated as
"Designated Senior Indebtedness" for purposes of this Indenture in an Officers'
Certificate received by the Trustee.
"Designated Senior Indebtedness of Guarantors" means (i) with
respect to the Guarantors, the Bank Indebtedness and (ii) any other Senior
Indebtedness of the Guarantors which, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $25
million, and is specifically designated by such Guarantor in the instrument
evidencing or governing such Senior Indebtedness of the Guarantors as
"Designated Senior Indebtedness of Guarantors" for purposes of this Indenture
and has been designated as "Designated Senior Indebtedness of Guarantors" for
purposes of this Indenture in an Officers' Certificate received by the Trustee.
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<PAGE> 15
"Disinterested Director" means a director of the Company other
than a director (i) who is an employee of the Company or a Subsidiary of the
Company or (ii) who is a party, or who is a director, officer, employee or
Affiliate (or is related by blood or marriage to any such Person) of a party, to
the transaction in question, and who is, in fact, independent in respect of such
transaction.
"Disqualified Stock" of a Person means Redeemable Stock of
such Person as to which the maturity, mandatory redemption, conversion or
exchange or redemption at the option of the holder thereof occurs, or may occur,
on or prior to the first anniversary of the Stated Maturity of the Securities.
"Domestic Restricted Subsidiary" means any Restricted
Subsidiary of the Company other than a Foreign Restricted Subsidiary.
"Domestic Subsidiary" means any subsidiary of the Company
other than a Foreign Subsidiary.
"EBITDA" means, for any period, the sum for such period of
Consolidated Net Income plus, to the extent reflected in the income statement of
such Person for such period from which Consolidated Net Income is determined,
without duplication, (i) Consolidated Interest Expense, (ii) net provision for
plant closing costs, (iii) income tax expense, (iv) depreciation expense, (v)
amortization expense, (vi) any charge related to any premium or penalty paid in
connection with redeeming or retiring any Indebtedness prior to its Stated
Maturity and (vii) any other non-cash charges to the extent deducted from or
reflected in Consolidated Net Income except for any non-cash charges that
represent accruals of, or reserves for, cash disbursements to be made in any
future accounting period (less any non-cash items increasing Consolidated Net
Income for such period that were not accrued in the ordinary course of
business).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fair Market Value" means, with respect to any asset or
property, the price which could be negotiated in an arm's length free market
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the transaction. Fair
Market Value shall be determined, except as otherwise provided, (i) if such
property or asset has a Fair Market Value of less than $3.0 million, by any
Officer of the Company or (ii) if such property or asset has a Fair Market Value
in excess of $3.0 million, by a majority of the Board of Directors and evidenced
by a Certified Resolution, dated within 30 days of the relevant transaction.
"Foreign Restricted Subsidiary" means any Restricted
Subsidiary of the Company that is not organized under the laws of the United
States of America or any state thereof or the District of Columbia.
"Foreign Significant Subsidiary" means any foreign Restricted
Subsidiary of the Company meeting the standards specified in Rule 1-02(w) of
Regulation S-X promulgated by the Commission as in effect on the Issue Date.
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<PAGE> 16
"Foreign Subsidiary" means any Subsidiary of the Company that
is not organized under the laws of the United States of America or any state
thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the Issue Date, including those set
forth in (i) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, (ii) statements and
pronouncements of the Financial Accounting Standards Board and (iii) such other
statements by such other entity as approved by a significant segment of the
accounting profession. All ratios and computations based on GAAP contained in
this Indenture shall be computed in conformity with GAAP consistently applied.
"Guarantors" means the Parent Guarantor and the Subsidiary
Guarantors, collectively.
"Guarantee" means any obligation, contingent or otherwise, of
any Person, directly or indirectly, guaranteeing any Indebtedness or other
obligation of any other Person and any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or advance or
supply funds for the purchase or payment of) such Indebtedness or other
obligation of such other Person (whether arising by virtue of partnership
arrangements, or by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for purposes of assuring in any
other manner the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided, however, that the term "Guarantee" shall not include
endorsements for collection or deposit in the ordinary course of business. The
term "Guarantee" used as a verb has a corresponding meaning.
"Holder" means the Person in whose name a Security is
registered on the Registrar's books.
"Incur" means issue, assume, Guarantee, incur or otherwise
become liable for; provided, however, that any Indebtedness or Capital Stock of
a Person existing at the time such Person becomes a Subsidiary (whether by
merger, consolidation, acquisition or otherwise) shall be deemed to be incurred
by such Subsidiary at the time it becomes a Subsidiary. The terms "Incurred",
"Incurrence" and "Incurring" shall each have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date
of determination (without duplication), (i) the principal of and premium (if
any) in respect of indebtedness of such Person for borrowed money; (ii) the
principal of and premium (if any) in respect of obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
Capitalized Lease Obligations and Attributable Indebtedness of such Person; (iv)
all obligations of such Person to pay the deferred and unpaid purchase price of
property or services (except Trade Payables), which purchase price is due more
than six months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services; (v) all
obligations of such Person in respect of letters of credit, banker's acceptances
or other similar instruments or credit transactions (including reimbursement
obligations with respect thereto), other than obligations with respect to
letters of credit securing obligations (other than obligations
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<PAGE> 17
described in clauses (i) through (iv) above) entered into in the ordinary course
of business of such Person to the extent such letters of credit are not drawn
upon, or, if and to the extent drawn upon, such drawing is reimbursed no later
than the third Business Day following receipt by such Person of a demand for
reimbursement following payment on the letter of credit; (vi) the amount of all
obligations of such Person with respect to the redemption, repayment or other
repurchase of any Disqualified Stock or, with respect to any Subsidiary that is
not a Subsidiary Guarantor, any Preferred Stock (but excluding, in each case,
any accrued dividends); (vii) all Indebtedness of other Persons secured by a
Lien on any asset of such Person, whether or not such Indebtedness is assumed by
such Person; provided, however, that the amount of such Indebtedness shall be
the lesser of (a) the fair market value of such asset at such date of
determination and (b) the amount of such Indebtedness of such other Persons;
(viii) all Indebtedness of other Persons to the extent Guaranteed by such
Person; and (ix) to the extent not otherwise included in this definition, net
obligations in respect of Interest Rate Agreements and Currency Exchange
Agreements.
The amount of Indebtedness of any Person at any date shall be
the outstanding balance at such date of all unconditional obligations as
described above and the maximum liability, upon the occurrence of the
contingency giving rise to the obligation, of any contingent obligations at such
date.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the TIA that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Initial Purchasers" means Salomon Smith Barney Inc. and Banc
of America Securities LLC.
"Interest Rate Agreement" means, in respect of a Person, any
interest rate swap agreement, interest rate option agreement, interest rate cap
agreement, interest rate collar agreement, interest rate floor agreement or
other similar agreement or arrangement.
"Investment" in any Person means any direct or indirect
advance, loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable or trade receivables on the
balance sheet of such Person) or other extension of credit (including by way of
Guarantee or similar arrangement) or capital contribution to (by means of any
transfer of cash or other property to others or any payment for property or
services for the account or use of others), or any purchase or acquisition of
Capital Stock, Indebtedness or other similar instruments issued by such Person.
For purposes of Section 4.09 and the limitations set forth in Section 4.04, (i)
"Investment" shall include the portion (proportionate to the Company's equity
interest in such Subsidiary) of the Fair Market Value of the net assets of any
Subsidiary of the Company at the time that such Subsidiary is designated an
Unrestricted Subsidiary; provided, however, that, upon a redesignation of such
Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue
to have a permanent "Investment" in an Unrestricted Subsidiary in an amount (if
positive) equal to (a) the Company's "Investment" in such Subsidiary at the time
of such redesignation less (b) the portion (proportionate to the Company's
equity interest in such
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<PAGE> 18
Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the
time that such Subsidiary is so redesignated a Restricted Subsidiary; and (ii)
any property transferred to or from an Unrestricted Subsidiary shall be valued
at its Fair Market Value at the time of such transfer. In determining the amount
of any Investment in respect of any property or assets other than cash, such
property or asset shall be valued at its Fair Market Value at the time of such
Investment (unless otherwise specified in this definition), as determined in
good faith by the Board of Directors, whose determination shall be evidenced by
a Certified Resolution.
"Issue Date" means the date on which the Initial Notes are
originally issued.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof) or any Sale/Leaseback
Transaction.
"Net Available Cash" from an Asset Disposition means cash
payments received (including any cash payments received by way of deferred
payment of principal pursuant to a note or installment receivable or otherwise,
but only as and when received, but excluding any other consideration received in
the form of assumption by the acquiring Person of Indebtedness or other
obligations relating to such properties or assets or received in any other
noncash form) therefrom, in each case, net of (i) all legal, title and recording
tax expenses, commissions and other fees and expenses incurred, and all federal,
state, provincial, foreign and local taxes required to be paid or accrued as a
liability under GAAP, as a consequence of such Asset Disposition, (ii) all
payments made on any Indebtedness that is secured by any assets subject to such
Asset Disposition, in accordance with the terms of any Lien upon such assets, or
which must by its terms, or in order to obtain a necessary consent to such Asset
Disposition, or by applicable law, be repaid out of the proceeds from such Asset
Disposition, (iii) all distributions and other payments required to be made to
minority interest holders in Subsidiaries or joint ventures as a result of such
Asset Disposition and (iv) the deduction of appropriate amounts to be provided
by the seller as a reserve, in accordance with GAAP, against any liabilities
associated with the assets disposed of in such Asset Disposition and retained by
the Company or any Restricted Subsidiary after such Asset Disposition.
"Net Cash Proceeds", with respect to any issuance or sale of
Capital Stock, means the cash proceeds of such issuance or sale net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees actually
incurred in connection with such issuance or sale and net of taxes paid or
payable as a result thereof.
"Officer" means the Chairman of the Board, President, Chief
Executive Officer, Chief Operating Officer, Senior Vice President, Chief
Financial Officer, Treasurer or Controller of the Company.
"Officers' Certificate" means a certificate signed by two
Officers at least one of whom shall be the principal executive officer,
principal accounting officer or principal financial officer of the Company.
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<PAGE> 19
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be counsel to the
Company or an employee of or counsel to the Trustee.
"Parent Guarantor" means U.S. Can Corporation, the Company's
sole stockholder and parent corporation.
"pari passu", as applied to the ranking of any Indebtedness of
a Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness
as is the other, and is so subordinate to the same extent, and is not
subordinate in right of payment to each other or to any Indebtedness as to which
the other is not so subordinate.
"Permitted Holder" means Berkshire Partners LLC (and its
Affiliates) or any Person of which the foregoing "beneficially owns" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act) voting securities representing
at least 75% of the total voting power of all classes of Capital Stock of such
Person (exclusive of any matters as to which class voting rights exist).
"Permitted Indebtedness" means (i) Indebtedness Incurred if,
after giving pro forma effect to the Incurrence and application of the proceeds
thereof, the Consolidated Coverage Ratio exceeds 2.0 to 1.0; (ii) Indebtedness
Incurred pursuant to the Credit Agreement in an amount outstanding at any time
not to exceed $400.0 million (reduced by any required permanent repayments of
the principal amount of Indebtedness under the Credit Agreement with the
proceeds of Asset Dispositions that are accompanied by a corresponding permanent
commitment reduction thereunder); (iii) Capital Expenditure Indebtedness
Incurred in an aggregate principal amount not to exceed $15 million in any
fiscal year of the Company; (iv) Indebtedness under Interest Rate Agreements and
Currency Exchange Agreements, entered into for the purpose of limiting interest
rate or foreign exchange risk, as the case may be, provided that the obligations
under Interest Rate Agreements are related to payment obligations on Permitted
Indebtedness and provided further that obligations under Currency Exchange
Agreements are entered into in connection with foreign business transactions in
the ordinary course of business; (v) Indebtedness of the Company to any
Restricted Subsidiary or of any Restricted Subsidiary to the Company or any
other Restricted Subsidiary for so long as such Indebtedness is held by the
Company or such Restricted Subsidiary, in each case subject to no Lien held by a
Person other than the Company or a Restricted Subsidiary; provided that if as of
any date any Person other than the Company or a Restricted Subsidiary owns or
holds any such Indebtedness or holds a Lien in respect of such Indebtedness,
such date shall be deemed the incurrence of Indebtedness not constituting
Permitted Indebtedness (under any clause other than clause (i) of this
definition) by the issuer of such Indebtedness; (vi) Indebtedness evidenced by
the Initial Notes and the Guarantees not to exceed the $175 million initially
outstanding on the date hereof; (vii) Indebtedness outstanding immediately after
the issuance of the Initial Notes on the date hereof and the application of the
proceeds thereof reduced by the amount of any scheduled amortization payments or
mandatory prepayments when actually paid or permanent reductions thereon; (viii)
Refinancing Indebtedness incurred with respect to Indebtedness referred to in
clauses (i), (iii), (vi), (vii) and (xiii) of this paragraph; (ix) Indebtedness
incurred by the Company or any of its Restricted Subsidiaries
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<PAGE> 20
constituting reimbursement obligations with respect to letters of credit issued
in the ordinary course of business, including, without limitation, letters of
credit in respect of workers' compensation claims or self-insurance, or other
Indebtedness with respect to reimbursement type obligations regarding workers'
compensation claims and letters of credit and bankers acceptances for the
purchase of inventory and other goods; (x) Indebtedness arising from agreements
of the Company or a Restricted Subsidiary providing for indemnification,
adjustment of purchase price, or other similar obligations (exclusive of any
Guaranty of Indebtedness of the purchaser in such transaction), in each case,
incurred or assumed in connection with the disposition of any business, assets
or a Restricted Subsidiary of the Company, provided that the maximum assumable
liability in respect of all such Indebtedness shall at no time exceed the gross
proceeds actually received by the Company and its Restricted Subsidiaries in
connection with such disposition; (xi) obligations in respect of performance and
surety bonds and completion guarantees provided by the Company or any Restricted
Subsidiary of the Company in the ordinary course of business; (xii) Indebtedness
of Foreign Subsidiaries not borrowed under the Credit Agreement in an amount
outstanding at any time not to exceed $75 million, including any guarantees
thereof by the Company, provided, however, that the amount of Indebtedness of
Foreign Subsidiaries outstanding at any particular time under this clause (xii)
shall reduce on a dollar-for-dollar basis both the amount that may be borrowed
at that time under the Credit Agreement referred to in clause (ii) of this
definition and under the sub-facility available to Foreign Subsidiaries under
the Credit Agreement; (xiii) Indebtedness in an amount not to exceed $7 million
that is incurred or assumed by the Company or a Subsidiary in connection with
its acquisition of the majority interest in the Company's Formametal S.A. joint
venture in Argentina; and (xiv) Indebtedness not otherwise permitted to be
incurred pursuant to Section 4.03 in an aggregate principal amount not to exceed
at any one time outstanding $15.0 million.
"Permitted Investment" means an Investment by the Company or
any Restricted Subsidiary in (i) a Restricted Subsidiary or a Person which will,
upon the making of such Investment, become a Restricted Subsidiary; provided,
however, that the primary business of such Restricted Subsidiary is a Related
Business; (ii) another Person if as a result of such Investment such other
Person is merged or consolidated with or into, or transfers or conveys all or
substantially all its assets to, the Company or a Restricted Subsidiary;
provided, however, that such Person's primary business is a Related Business;
(iii) Temporary Cash Investments; (iv) receivables owing to the Company or any
Restricted Subsidiary, if created or acquired in the ordinary course of business
and payable or dischargeable in accordance with customary trade terms; provided,
however, that such trade terms may include such concessionary trade terms as the
Company or any such Restricted Subsidiary deems reasonable under the
circumstances; (v) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as expenses
for accounting purposes and that are made in the ordinary course of business;
(vi) loans or advances to employees made in the ordinary course of business of
the Company or such Restricted Subsidiary, as the case may be, not to exceed
$1.0 million per employee and $3.0 million in the aggregate; (vii) stock,
obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Company or any Restricted
Subsidiary or in satisfaction of judgments; (viii) Investments in foreign joint
ventures in an aggregate amount not to exceed $5.0 million; and (ix) any
securities received or other Investments made as a result of the receipt of
non-cash consideration received in
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<PAGE> 21
connection with an Asset Disposition that was made pursuant to and in compliance
with the provisions of Section 4.06 or in connection with any other disposition
of assets not constituting an Asset Disposition.
"Permitted Liens" means, with respect to any Person, (i)
pledges or deposits by such Person under workers' compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or United
States government bonds to secure surety or appeal bonds to which such Person is
a party, or deposits and other Liens as security for taxes or import duties or
for the payment of rent, in each case, Incurred in the ordinary course of
business; (ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens, in each case, for sums not yet due or being contested in good
faith by appropriate proceedings, or other Liens arising out of judgments or
awards against such Person with respect to which such Person shall then be
prosecuting an appeal or other proceedings for review; (iii) Liens for property
taxes not yet delinquent or which are being contested in good faith by
appropriate proceedings; (iv) Liens in favor of issuers of surety bonds or
letters of credit issued pursuant to the request of and for the account of such
Person in the ordinary course of its business; (v) minor survey exceptions,
minor encumbrances, easements or reservations of, or rights of others for,
licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the use of
real property or Liens incidental to the conduct of the business of such Person
or to the ownership of its properties which were not Incurred in connection with
Indebtedness and which do not in the aggregate materially adversely affect the
value of said properties or materially impair their use in the operation of the
business of such Person; (vi) Liens existing on the Issue Date; (vii) Liens on
property or shares of stock of a Person at the time such Person becomes a
Subsidiary; provided, however, that any such Lien may not extend to any other
property owned by the Company, the Parent Guarantor or any Restricted
Subsidiary; provided further, that such Liens are not Incurred in anticipation
of or in connection with the transaction or series of related transactions
pursuant to which such Person became a Restricted Subsidiary; (viii) Liens on
property at the time the Company, the Parent Guarantor or a Subsidiary acquired
the property, including any acquisition by means of a merger or consolidation
with or into the Company, the Parent Guarantor or any Restricted Subsidiary;
provided, however, that any such Lien may not extend to any other property owned
by the Company, the Parent Guarantor or any Restricted Subsidiary; provided
further, that such Liens are not Incurred in anticipation of or in connection
with the acquisition of such property; (ix) Liens to secure any refinancing,
refunding, extension, renewal or replacement (or successive refinancings,
refundings, extensions, renewals or replacements) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (vi),
(vii) and (viii); provided, however, that (a) such new Lien shall be limited to
all or part of the same property that secured the original Lien (plus
improvements on such property) and (b) the Indebtedness secured by such Lien at
such time is not increased to any amount greater than the sum of (1) the
outstanding principal amount or, if greater, committed amount of the
Indebtedness described under clauses (vi), (vii) and (viii) at the time the
original Lien became a Permitted Lien under this Indenture and (2) an amount
necessary to pay any fees and expenses, including premiums, related to such
refinancing, refunding, extension, renewal or replacement; (x) Liens
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<PAGE> 22
securing Senior Indebtedness that the Company or its Restricted Subsidiaries are
permitted to incur under this Indenture, including Capital Expenditure
Indebtedness; (xi) Liens in favor of the Company or the Guarantors; (xii) Liens
upon specific items of inventory or other goods and proceeds of any Person
securing such Person's obligations in respect of bankers' acceptances and
letters of credit issued or created for the account of such Person to facilitate
the purchase, shipment or storage of such inventory or other goods incurred in
the ordinary course of business; (xiii) Liens encumbering deposits made to
secure obligations arising from statutory, regulatory, contractual or warranty
requirements of the Company or any of its Restricted Subsidiaries, including
rights of offset and set-off incurred in the ordinary course of business; (xiv)
leases or subleases granted to others and entered into in the ordinary course of
business; and (xv) Liens to secure the performance of statutory obligations and
Liens imposed by law, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of business.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Preferred Stock Dividends" means all dividends with respect
to Preferred Stock of Restricted Subsidiaries held by Persons other than the
Company or a Wholly Owned Subsidiary. The amount of any such dividend shall be
equal to the quotient of such dividend divided by the difference between one and
the maximum statutory federal income tax rate (expressed as a decimal number
between 1 and 0) then applicable to the issuer of such Preferred Stock.
"Principal" of a Security means the principal of the Security
plus the premium, if any, payable on the Security which is due or overdue or is
to become due at the relevant time.
"pro forma" means, with respect to any calculation made or
required to be made pursuant to the terms hereof, a calculation in accordance
with Article 11 of Regulation S-X promulgated under the Securities Act (to the
extent applicable).
"Public Equity Offering" means an underwritten public offering
of Capital Stock of the Company (other than Disqualified Stock) pursuant to a
registration statement filed with the Commission in accordance with the
Securities Act or a firm commitment private placement of Capital Stock (other
than Disqualified Stock) pursuant to an agreement that requires the registration
of the resale of such Capital Stock (or Capital Stock issued upon conversion
thereof) contemporaneously with the issuance thereof or as soon as practical
thereafter.
"Public Market" means any time after (a) a Public Equity
Offering has been
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<PAGE> 23
consummated and (b) at least 10.0% of the total issued and outstanding common
stock of the Company has been distributed by means of an effective registration
statement under the Securities Act or sales pursuant to Rule 144 under the
Securities Act.
"Recapitalization Agreement" means the Agreement and Plan of
Merger, dated as of June 1, 2000, as amended by the First Amendment to Agreement
and Plan of Merger, dated as of June 28, 2000, and the Second Amendment to
Agreement and Plan of Merger, dated as of August 22, 2000, between the Parent
Guarantor and Pac Packaging Acquisition Corporation, a Delaware corporation.
"Record Date" means the date(s) specified as the record date
on the face of any Security.
"Redeemable Stock" means, with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Disqualified Stock, or (iii) is redeemable at the option of the holder thereof,
in whole or in part.
"Refinancing Indebtedness" means Indebtedness that refunds,
refinances, replaces, renews, repays or extends (including pursuant to any
defeasance or discharge mechanism) (collectively, "refinances," and "refinanced"
shall have a correlative meaning) any Indebtedness existing on the date of this
Indenture or Incurred in compliance with this Indenture (including Indebtedness
of the Company that refinances Indebtedness of any Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary that refinances Indebtedness of
another Restricted Subsidiary) including Indebtedness that refinances
Refinancing Indebtedness; provided, however, that (i) the Refinancing
Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the
Indebtedness being refinanced, (ii) the Refinancing Indebtedness has an Average
Life at the time such Refinancing Indebtedness is Incurred that is equal to or
greater than the Average Life of the Indebtedness being refinanced, (iii) such
Refinancing Indebtedness is Incurred in an aggregate principal amount (or if
issued with original issue discount, an aggregate issue price) that is equal to
or less than the aggregate principal amount (or if issued with original issue
discount, the aggregate accreted value) then outstanding of the Indebtedness
being refinanced plus an amount necessary to pay any fees and expenses,
including premiums, relating to such refinancing and (iv) if the Indebtedness of
the Company or a Restricted Subsidiary being refinanced is subordinated to other
Indebtedness of the Company or a Restricted Subsidiary in any respect, such
Refinancing Indebtedness is subordinated at least to the same extent; provided
further, however, that Refinancing Indebtedness shall not include (a)
Indebtedness of a Subsidiary that refinances Indebtedness of the Company or (b)
Indebtedness of the Company or a Restricted Subsidiary that refinances
Indebtedness of an Unrestricted Subsidiary.
"Registration Rights Agreement" means (i) with respect to the
Initial Notes issued on the date hereof, the Registration Rights Agreement,
dated October 4, 2000, among the Company, the Guarantors and the Initial
Purchasers, as such agreement may be amended, modified, or supplemented from
time to time in accordance with the terms thereof and (ii) with
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<PAGE> 24
respect to any Additional Notes, any registration rights agreement entered into
among the Company, any Guarantors and the relevant initial purchasers or
underwriters, as the same may be amended, modified or supplemented from time to
time in accordance with the terms thereof.
"Related Business" means any business related, or
complementary (as determined in good faith by the Board of Directors), to the
business of the Company and the Restricted Subsidiaries on the Issue Date.
"Representative" means the trustee, agent or representative
(if any) for an issue of Senior Indebtedness.
"Restricted Investment" means any Investment other than a
Permitted Investment.
"Restricted Subsidiary" means (i) U.S.C. Europe N.V., (ii)
U.S.C. Europe Netherlands B.V., (iii) U.S.C. Holding U.K. Ltd., (iv) U.K. Can
Ltd., (v) U.S.C. Europe U.K. Ltd., (vi) U.S.C. Europe Italia, S.r.l., (vii)
U.S.C. France Holding, S.A.S., (viii) USC Aerosols France, S.A.S., (ix) USC May
Verpackungen Holding Inc., (x) U.S.C. Aerosoldosen Deutschland GmbH, (xi) U.S.C.
Can Espana Holding SCpA, (xii) U.S.C. Europe Espana SA, (xiii) May Verpackungen
GmbH & Co. KG, (xiv) Wilhelm Wessel Nachfl. Blechemballagenfabrik GmbH & Co. KG,
(xv) May Verpackungen Verwaltung GmbH, (xvi) May Can Company GmbH, (xvii)
Wessel-Emballagen GmbH, (xviii) any other direct or indirect Subsidiary of the
Company that is not designated by the Board of Directors to be an Unrestricted
Subsidiary and (xix) an Unrestricted Subsidiary that is redesignated as a
Restricted Subsidiary as permitted pursuant to the definition of "Unrestricted
Subsidiary."
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company, the Parent
Guarantor or a Restricted Subsidiary transfers such property to a Person and the
Company, the Parent Guarantor or a Restricted Subsidiary leases it from such
Person.
"Securities" means the Initial Notes and any other securities
authenticated and delivered under this Indenture. For all purposes of this
Indenture, the term "Securities" shall include any Exchange Notes to be issued
and exchanged for any Initial Notes pursuant to a Registration Rights Agreement
and this Indenture. From and after the issuance of any Additional Notes (but not
for purposes of determining whether such issuance is permitted hereunder),
"Securities" shall include such Additional Notes for purposes of this Indenture
and all Exchange Notes from time to time issued with respect to any Initial
Notes that constitute such Additional Notes. All Securities, including any such
Additional Notes, shall vote together as one series of Securities under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means (i) all monetary obligations under
the Credit Agreement, including without limitation, obligations to pay principal
and interest, reimbursement obligations under letters of credit, fees, expenses
and indemnities under the Credit Agreement, and (ii) all Indebtedness of the
Company including interest thereon, whether outstanding on the
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<PAGE> 25
date of this Indenture or thereafter issued, created or incurred, unless in the
instrument creating or evidencing the same, or pursuant to which the same is
outstanding, it is provided that such obligations are not superior in right of
payment to the Securities; provided, however, that Senior Indebtedness shall not
include (i) any obligation of the Company to any Subsidiary, (ii) any liability
for federal, state, local, foreign or other taxes owed or owing by the Company,
(iii) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities), (iv) any Indebtedness, Guarantee or obligation of
the Company which is subordinate or junior in any respect to any other
Indebtedness, Guarantee or obligation of the Company, including any Senior
Subordinated Indebtedness and any Subordinated Obligations, (v) any obligations
with respect to any Capital Stock or (vi) any Indebtedness Incurred in violation
of this Indenture.
"Senior Indebtedness of the Guarantors" means all Indebtedness
of the Guarantors including interest thereon, whether outstanding on the date of
this Indenture or thereafter issued, unless in the instrument creating or
evidencing the same or pursuant to which the same is outstanding it is provided
that such obligations are not superior in right of payment to the Guarantees,
provided, however, that Senior Indebtedness of the Guarantors shall not include
(a) any obligation of the Guarantors to any Subsidiary, (b) any liability for
federal, state, local, foreign or other taxes owed or owing by the Guarantors,
(c) any accounts payable or other liability to trade creditors arising in the
ordinary course of business (including Guarantees thereof or instruments
evidencing such liabilities), (d) any Indebtedness, Guarantee or obligation of
the Guarantors that is subordinate or junior in any respect to any other
Indebtedness, Guarantee or obligation of the Guarantors, including Senior
Subordinated Indebtedness of the Guarantors and any Subordinated Obligations,
(e) any obligations with respect to any Capital Stock or (f) any Indebtedness
Incurred in violation of this Indenture.
"Senior Subordinated Indebtedness" means the Securities and
any other Indebtedness of the Company that specifically provides that such
Indebtedness is to rank pari passu with the Securities and is not subordinated
by its terms to any Indebtedness or other obligation of the Company which is not
Senior Indebtedness.
"Senior Subordinated Indebtedness of the Guarantors" means (i)
the Guarantees and (ii) any other Indebtedness of the Guarantors that
specifically provides that such Indebtedness is to rank pari passu with the
Guarantees and is not subordinated by its terms to any Indebtedness or other
obligation of the Guarantors which is not Senior Indebtedness of the Guarantors.
"Stated Maturity" means, with respect to any security, the
date specified in such security as the fixed date on which the payment of
principal of such security is due and payable, including pursuant to any
mandatory redemption provision (but excluding any provision providing for the
repurchase of such security at the option of the holder thereof upon the
happening of any contingency beyond the control of the issuer unless such
contingency has occurred).
"Stockholder Agreement" means that certain Stockholder
Agreement by and among the common equity stockholders of the Parent Guarantor,
including the Permitted Holders, certain management investors and the other
Persons listed therein, as in effect on the date of this Indenture.
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<PAGE> 26
"Subordinated Obligation" means (i) any Indebtedness of the
Company (whether outstanding on the date of this Indenture or thereafter
Incurred) which is subordinate or junior in right of payment to the Securities
or (ii) any Indebtedness of the Guarantors (whether outstanding on the date of
this Indenture or thereafter Incurred) which is subordinate or junior in right
of payment to the Guarantees or (iii) any Disqualified Stock of the Company or
the Guarantors.
"Subsidiary" or "subsidiary" of any specified Person means any
corporation, partnership, joint venture, association or other business entity,
whether now existing or hereafter organized or acquired, (i) in the case of a
corporation, of which at least 50% of the total voting power of the Voting Stock
is held by such first-named Person or any of its Subsidiaries and such
first-named Person or any of its Subsidiaries has the power to direct the
management, policies and affairs thereof; or (ii) in the case of a partnership,
joint venture, association, or other business entity, with respect to which such
first-named Person or any of its Subsidiaries has the power to direct or cause
the direction of the management and policies of such entity by contract or
otherwise if in accordance with GAAP such entity is consolidated with the
first-named Person for financial statement purposes.
"Subsidiary Guarantors" means (i) USC May Verpackungen Holding
Inc. and (ii) each Domestic Restricted Subsidiary that in the future executes a
supplemental indenture in which such Subsidiary agrees to be bound by the terms
of this Indenture as a Subsidiary Guarantor, provided that any Person
constituting a Subsidiary Guarantor as described above shall cease to constitute
a Subsidiary Guarantor when its respective Subsidiary Guarantee is released in
accordance with the terms of this Indenture.
"Temporary Cash Investments" means any of the following: (i)
investments in U.S. Government Obligations maturing within one year of the date
of acquisition thereof, (ii) investments in time deposit accounts, certificates
of deposit and money market deposits maturing within one year of the date of
acquisition thereof, issued by a bank or trust company which is organized under
the laws of the United States of America or any state thereof having capital,
surplus and undivided profits aggregating in excess of $500.0 million and whose
long-term debt is rated "A-3" or A- or higher according to Moody's Investors
Service, Inc. or Standard and Poor's (or such similar equivalent rating by at
least one "nationally recognized statistical rating organization" (as defined in
Rule 436 under the Securities Act)), (iii) repurchase obligations with a term of
not more than 7 days for underlying securities of the types described in clause
(i) above entered into with a bank meeting the qualifications described in
clause (ii) above, (iv) investments in commercial paper, maturing not more than
six months after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence 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" (or higher) according to Moody's Investors Service,
Inc. or "A-1" (or higher) according to Standard and Poor's and (v) mutual funds
whose assets consist primarily of Investments of the type described in clauses
(i) through (iv) above.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that, in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act of 1939, as may be amended from time to time.
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<PAGE> 27
"Trade Payables" means, with respect to any Person, any
accounts payable or any indebtedness or monetary obligation to trade creditors
created, assumed or Guaranteed by such Person arising in the ordinary course of
business of such Person in connection with the acquisition of goods or services.
"Transactions" means the recapitalization of the Company and
the Parent Guarantor pursuant to which Pac Packaging Acquisition Corporation, a
Delaware corporation, was merged with and into the Parent Guarantor and the
financing transactions of the Company and the Parent Guarantor related thereto.
"Transfer Restricted Securities" means Securities that bear or
are required to bear the legend set forth in the third and fourth paragraphs of
Exhibit A hereto.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture and, thereafter, means such successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or other representative of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform
Commercial Code as in effect from time to time.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors as permitted or required pursuant to
Section 4.09 and not thereafter redesignated as a Restricted Subsidiary as
permitted pursuant thereto and (ii) any Subsidiary of an Unrestricted
Subsidiary.
"U.S. Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United States of America (including any agency or instrumentality thereof) for
the payment of which the full faith and credit of the United States of America
is pledged and which are not callable or redeemable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital
Stock of such corporation then outstanding and normally entitled to vote in the
election of directors.
"Wholly Owned Subsidiary" means a Restricted Subsidiary of the
Company, all the Capital Stock of which (other than directors' qualifying
shares) is owned by the Company or another Wholly Owned Subsidiary.
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<PAGE> 28
SECTION 1.02. Other Definitions.
<TABLE>
<CAPTION>
TERM DEFINED IN
SECTION
<S> <C>
"Bankruptcy Law"................................................................. 6.01
"Blockage Notice"............................................................... 10.03
"covenant defeasance option"..................................................... 8.01
"Custodian Funds"................................................................ 6.01
"Event of Default"............................................................... 6.01
"Excess Proceeds"................................................................ 4.06
"Exchange Notes".............................................................. Recital
"incorporated provision"........................................................ 12.01
"Initial Notes"............................................................... Recital
"legal defeasance option"........................................................ 8.01
"Legal Holiday"................................................................. 12.08
"Offer".......................................................................... 4.06
"Offer Date"..................................................................... 4.06
"Offer Period"................................................................... 4.06
"Offered Price".................................................................. 4.06
"Pari Passu Debt Amount"......................................................... 4.06
"Pari Passu Offer"............................................................... 4.06
"pay the Securities"............................................................ 10.03
"Paying Agent"................................................................... 2.03
"Payment Blockage Period"....................................................... 10.03
"Purchase Date".................................................................. 4.06
"Redemption Account"............................................................. 4.16
"Registrar"...................................................................... 2.03
"Reports"........................................................................ 4.06
"Restricted Payment"............................................................. 4.04
"Security Amount"................................................................ 4.06
"Subsidiary Guaranties"......................................................... 11.01
"Subsidiary Guarantors Blockage Notice"......................................... 11.05
"Subsidiary Guarantors Payment Blockage Period"................................. 11.05
"Surviving Entity"............................................................... 5.01
</TABLE>
SECTION 1.03. Incorporation by Reference of Trust Indenture
Act. This Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the indenture securities.
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<PAGE> 29
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by Commission
rule have the meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context
otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) "including" means including without limitation;
(v) words in the singular include the plural and
words in the plural include the singular;
(vi) unsecured Indebtedness shall not be deemed to be
subordinate or junior to secured Indebtedness merely
by virtue of its nature as unsecured Indebtedness;
(vii) the principal amount of any noninterest bearing
or other discount security at any date shall be the
principal amount thereof that would be shown on a
balance sheet of the issuer dated such date prepared
in accordance with GAAP and accretion of principal on
such security shall not be deemed to be the
Incurrence of Indebtedness but shall be included in
Consolidated Interest Expense; and
(viii) the principal amount of any Preferred Stock
shall be the greater of (i) the maximum liquidation
value of such Preferred Stock, or (ii) the maximum
mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Initial Notes and the
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A which is hereby incorporated in and expressly made a part of this
Indenture. The Exchange Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit B, which is hereby incorporated in
and expressly made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule, agreements to
which the Company is subject, if any, or usage, provided that any such notation,
legend or endorsement
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<PAGE> 30
is in a form acceptable to the Company. Each Security shall be dated the date of
its authentication. The terms of the Securities set forth in Exhibit A and
Exhibit B are part of the terms of this Indenture. Any Additional Securities
shall be issued in the form of either (i) Exhibit A, if such Security is a
Transfer Restricted Security, or (ii) Exhibit B, if such Security is not a
Transfer Restricted Security.
SECTION 2.02. Execution and Authentication. Two Officers shall
sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture and not otherwise.
The Trustee shall authenticate and make available for delivery
upon a Company Order (i) Initial Notes for original issue on the date hereof in
an aggregate principal amount of $175,000,000, (ii) subject to Section 4.03,
Additional Notes in an aggregate principal amount of up to $100,000,000 and
(iii) Exchange Notes for issue only pursuant to a Registration Rights Agreement
and for Initial Notes for a like principal amount of Initial Notes exchanged
pursuant thereto. Such Company Order shall specify the amount of the Securities
to be authenticated, the date on which the original issue of Securities is to be
authenticated and whether the Securities are to be Initial Notes, Additional
Notes or Exchange Notes. The aggregate principal amount of Securities
outstanding at any time may not exceed $275,000,000, except as provided in
Section 2.06.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Securities. 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 Registrar, Paying Agent or agent
for service of notices and demands.
SECTION 2.03. Registrar and Paying Agent. The Company shall
maintain an office or agency where Securities may be presented for registration
of transfer or for exchange (the "Registrar") and an office or agency where
Securities may be presented for payment (the "Paying Agent"). The Registrar
shall keep a register of the Securities and of their transfer and exchange. The
Company may have one or more co-registrars and one or more additional paying
agents; provided, however, that so long as Bank One Trust Company, N.A. shall be
the Trustee,
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<PAGE> 31
without the consent of the Trustee, there shall be no more than one Registrar or
Paying Agent. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent or co-registrar not a party to this Indenture,
which shall incorporate the terms of the TIA. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 7.07. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar, co-registrar or transfer agent.
The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents, and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar is not required to transfer or exchange any Security
selected for redemption, or any Security for a period of 15 days before a
selection of Securities to be redeemed, or any Security for a period of 15 days
before an interest payment date. The Holder of a Security may be treated as the
owner of such Security for all purposes.
No service charge shall be made for any registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any transfer tax or other similar governmental charge payable in
connection therewith.
The Company initially appoints the Trustee as Registrar and
Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent To Hold Money in Trust. Prior to
each due date of the principal and interest on any Security, the Company shall
deposit with the Paying Agent a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Holders or the Trustee all money held by the Paying
Agent for the payment of principal of or interest on the Securities and shall
notify the Trustee of any default by the Company in making any such payment. If
the Company or a Subsidiary acts as Paying Agent, it shall segregate the money
held by it as Paying Agent and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed by the Paying Agent. Upon complying with
this Section, the Paying Agent shall have no further liability for the money
delivered to the Trustee.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee, in writing at least five Business Days
before each interest payment date and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders.
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<PAGE> 32
SECTION 2.06. Replacement Securities. If a mutilated Security
is surrendered to the Registrar or if the Holder of a Security claims that the
Security has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Security if the requirements of
Section 8-405 of the Uniform Commercial Code are met and the Holder satisfies
any other reasonable requirements of the Trustee. If required by the Trustee or
the Company, such Holder shall furnish an indemnity bond sufficient in the
judgment of the Company and the Trustee to protect the Company, the Trustee, the
Paying Agent, the Registrar and any co-registrar from any loss which any of them
may suffer if a Security is replaced. The Company and the Trustee may charge the
Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.07. Outstanding Securities. Securities outstanding
at any time are all Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation and those described in
this Section as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.06, it ceases
to be outstanding unless the Trustee and the Company receive proof satisfactory
to them that the replaced Security is held by a bona fide purchaser, in which
event the replacement Security shall cease to be outstanding, subject to the
provisions of Section 8-405 of the Uniform Commercial Code.
If the principal amount of any Security is considered paid
under Section 4.01 hereof, it shall cease to be outstanding on such date and
interest on the Security shall cease to accrue.
If the Paying Agent segregates and holds in trust, in
accordance with this Indenture, on a redemption date or maturity date money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, and the Paying Agent is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture, then on and after
that date such Securities (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.08. Temporary Securities. Until definitive
Securities are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Without unreasonable delay, the
Company shall prepare and the Trustee shall authenticate definitive Securities
and deliver them in exchange for temporary Securities.
SECTION 2.09. Cancellation. The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying
Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel and destroy (subject to the record retention requirements of the Exchange
Act) all Securities surrendered for registration of transfer, exchange, payment
or
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<PAGE> 33
cancellation and deliver a certificate of such destruction to the Company. The
Company may not issue new Securities to replace Securities it has redeemed, paid
or delivered to the Trustee for cancellation.
SECTION 2.10. Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, the Company shall pay defaulted interest
(plus interest on such defaulted interest to the extent lawful) in any lawful
manner. The Company may pay the defaulted interest to the Persons who are
Holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail to each Holder a notice that
states the special record date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.11. CUSIP Numbers. The Company, in issuing the
Securities, shall use "CUSIP" numbers, and the Trustee shall use "CUSIP" numbers
in notices of redemption as a convenience to Holders; provided, however, that
any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any
notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers.
SECTION 2.12. Securities Depository. In order to facilitate
the transfer of the Securities by book entry, the Securities may be registered
in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC")
(or such other nominee as DTC shall specify from time to time). Prior to such
registration, the Company and the Trustee will execute and deliver a Letter of
Representations to DTC (as may be in effect from time to time, the "Letter of
Representations"). All payments of principal of, redemption premium, if any, and
interest on the Securities so registered in the name of DTC's nominee and all
notices with respect thereto, including notices of full or partial redemption,
shall be made and given at the times and in the manner set forth in the Letter
of Representations. The terms and provisions of the Letter of Representations
shall govern the procedures for payment on and redemption of Securities in the
event of any inconsistency between the provisions of this Indenture and the
Letter of Representations; provided, however, that the terms and provisions of
the Letter of Representations shall in no manner affect the rights of Holders to
receive any payments of principal of, redemption premium, if any, and interest
on the Securities.
The book-entry registration system for all or a portion of the
Securities may be terminated and certificates delivered to and registered in the
name of the beneficial owners of the Securities, under either of the following
circumstances:
(i) DTC notifies the Company that it is no longer willing
or able to act as securities depository for the
Securities or has ceased to be a clearing agency
under the Exchange Act, and in either event the
Company thereupon fails to appoint a successor
depository; or
(ii) the Company in its sole discretion elects to cause
the issuance of the Securities in certificated form.
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In the event a successor securities depository is appointed by
the Company, the Securities will be registered in the name of such successor
securities depository or its nominee. In the event certificates are required to
be issued to beneficial owners, the Company and the Trustee shall be fully
protected in relying upon a certificate of DTC or any DTC participant as to the
identity of and the principal amount of Securities held by such beneficial
owners.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Company elects to
redeem Securities pursuant to paragraph 6 of the Securities, it shall notify the
Trustee in writing of the redemption date, the principal amount of Securities to
be redeemed and the paragraph of the Securities pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for
in this Section at least 45 days before the redemption date unless the Trustee
consents to a shorter period. Such notice shall be accompanied by an Officers'
Certificate and an Opinion of Counsel from the Company to the effect that such
redemption will comply with the conditions herein.
SECTION 3.02. Selection of Securities To Be Redeemed. If fewer
than all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by a method that complies with
applicable legal and securities exchange requirements, if any, and that the
Trustee considers fair and appropriate and in accordance with methods generally
used at the time of selection by fiduciaries in similar circumstances. The
Trustee shall make the selection from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of the
principal of Securities that have denominations larger than $1,000. Securities
and portions of them the Trustee selects shall be in amounts of $1,000 or a
whole multiple of $1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called for
redemption. If fewer than all the Securities are to be redeemed with the
proceeds of a Public Equity Offering, the Trustee shall select the Securities to
be redeemed pro rata, or nearly pro rata as is practicable, unless such method
is prohibited. The Trustee shall notify the Company promptly of the Securities
or portions of Securities to be redeemed.
SECTION 3.03. Notice of Redemption. At least 30 days but not
more than 60 days before a date for redemption of Securities, the Company shall
mail a notice of redemption by first-class mail to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(i) the redemption date;
(ii) the redemption price;
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(iii) the name and address of the Paying Agent;
(iv) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
redemption price;
(v) if fewer than all the outstanding Securities are
to be redeemed, the identification and principal
amounts of the particular Securities to be redeemed;
(vi) that, unless the Company defaults in making such
redemption payment or the Paying Agent is prohibited
from making such payment pursuant to the terms of
this Indenture, interest on Securities (or portion
thereof) called for redemption ceases to accrue on
and after the redemption date; and
(vii) that no representation is made as to the
correctness or accuracy of the CUSIP number listed in
such notice or printed on the Securities.
At the Company's written request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense. In such
event, the Company shall provide the Trustee with the information required by
this Section at least 45 days before the redemption date.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the redemption date and at the redemption price stated in the notice. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price stated in the notice, plus accrued interest to the redemption date.
Failure to give notice or any defect in the notice to any Holder shall not
affect the validity of the notice to any other Holder.
SECTION 3.05. Deposit of Redemption Price. Prior to the
redemption date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary is the Paying Agent, shall segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest on all
Securities to be redeemed on that date other than Securities or portions of
Securities called for redemption which have been delivered by the Company to the
Trustee for cancellation.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate for the Holder (at the Company's expense) a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.07. Optional Redemption.
(i) Except as set forth in clause (ii) of this
Section 3.07, the Company shall not have the option
to redeem the Securities pursuant to
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<PAGE> 36
this Section 3.07 prior to October 1, 2005. On and
after such date, the Company shall have the option to
redeem the Securities, in whole at any time or in
part from time to time, at the redemption prices
(expressed as percentages of principal amount) set
forth below plus accrued and unpaid interest thereon,
if any, through the applicable redemption date
(subject to the right of Holders of record on the
relevant Record Date to receive interest on the
relevant interest payment date), if redeemed during
the twelve-month period beginning on October 1, of
the years indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2005 106.188%
2006 104.125%
2007 102.063%
2008 and thereafter 100.000%
</TABLE>
(ii) Notwithstanding the provisions of clause (i) of
this Section 3.07, at any time on or prior October 1,
2003, the Company shall have the option to redeem,
with the net cash proceeds to the Company from one or
more Public Equity Offerings, up to 35% of the
aggregate principal amount of Securities at a
redemption price equal to 112.375% of the aggregate
principal amount thereof plus accrued and unpaid
interest, if any, through the redemption date;
provided that at least 65% of the aggregate principal
amount of Securities remains outstanding immediately
after the occurrence of such redemption and provided
further, that such redemption occurs within not more
than 180 days after the date of the closing of such
Public Equity Offering.
(iii) Any redemption pursuant to this Section 3.07
shall be made pursuant to the provisions of Section
3.01 through 3.06 hereof.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall
promptly pay the principal of and interest on the Securities on the dates and in
the manner provided in the Securities and in this Indenture due on such due
date. Principal and interest shall be considered paid on the date due if on such
date the Trustee or the Paying Agent holds in accordance with this Indenture
money sufficient to pay all principal and interest then due and the Trustee or
the Paying Agent, as the case may be, is not prohibited from paying such money
to the Holders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the
rate specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
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<PAGE> 37
SECTION 4.02. Commission Reports. The Company shall file with
the Trustee and provide Holders at the Company's expense, within 15 days after
it files them with the Commission, copies of the Company's annual, quarterly and
other reports, documents and information that the Company is required to file
with the Commission pursuant to Sections 13 or 15(d) of the Exchange Act.
Notwithstanding that the Company may not be subject to the reporting
requirements of Sections 13 or 15(d) of the Exchange Act, the Company shall file
with the Commission, to the extent permitted, and provide the Trustee and
Holders with the annual, quarterly and other reports, documents and information
specified in Sections 13 and 15(d) of the Exchange Act. The Company shall comply
with the other provisions of Section 314(a) of the TIA.
SECTION 4.03. Limitation on Indebtedness. The Company shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly,
Incur any Indebtedness, unless such Indebtedness is Permitted Indebtedness.
SECTION 4.04. Limitation on Restricted Payments.
(i) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly (a)
declare or pay any dividend on, or make any
distribution in respect of, any Capital Stock of the
Company or the Parent Guarantor, as the case may be,
except for dividends or distributions payable solely
in Capital Stock (other than Disqualified Stock), of
the Company or the Parent Guarantor, as the case may
be; (b) purchase, redeem, retire or acquire for value
any Capital Stock of the Company, the Parent
Guarantor or any Subsidiary of the Company or the
Parent Guarantor (other than a Restricted
Subsidiary); (c) purchase, repurchase, redeem,
defease or acquire for value, prior to scheduled
maturity, scheduled repayment or scheduled sinking
fund payment, any Subordinated Obligation; or (d)
make any Investment (other than Permitted
Investments) in any Person, (any such dividend,
distribution, purchase, redemption, repurchase,
defeasance, other acquisition, retirement or
Investment being herein referred to as a "Restricted
Payment") if at the time of and after giving effect
to the proposed Restricted Payment:
(1) any Default or Event of Default has occurred and is
continuing;
(2) the Company could not Incur at least $1.00 of additional
Indebtedness pursuant to clause (i) of the definition of Permitted
Indebtedness; or
(3) the aggregate amount expended or declared for all
Restricted Payments after the Issue Date exceeds (without duplication)
the sum of:
(A) 50% of the Consolidated Net Income accrued during
the period (treated as one accounting period) from the first
day of the fiscal quarter in which
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the Issue Date occurs to the end of the most recent fiscal
quarter ending at least 30 days prior to the date of such
Restricted Payment (or, in case such Consolidated Net Income
shall be a deficit, minus 100% of such deficit);
(B) 100% of the aggregate Net Cash Proceeds plus the
Fair Market Value of property other than cash received by the
Company from the issuance or sale of its respective Capital
Stock (excluding the issuance or sale of Disqualified Stock)
subsequent to the Issue Date (other than an issuance or a sale
to a Subsidiary of the Company or an employee stock ownership
plan or trust);
(C) the amount by which Indebtedness of the Company
or the Restricted Subsidiaries is reduced on the Company's
balance sheet upon the conversion or exchange (other than by a
Subsidiary) subsequent to the Issue Date, of any Indebtedness
of the Company or the Restricted Subsidiaries that is
convertible or exchangeable, or is exchanged, for Capital
Stock (other than Disqualified Stock) of the Company;
(D) an amount equal to the net reduction in
Investments resulting from dividends, distributions,
repayments of loans or advances or other transfers of assets
(to the extent not included in Consolidated Net Income), in
each case, to the Company or any Restricted Subsidiary, not to
exceed the amount of Investments previously made that were
included as Restricted Payments; and
(E) 50% of the gain realized by the Company or any
Restricted Subsidiary from the cash sale (other than to the
Company or a Restricted Subsidiary) of Restricted Investments
made by the Company or any Restricted Subsidiary after
issuance of the Initial Notes on the date hereof to the extent
not included in Consolidated Net Income.
(ii) The provisions of Section 4.04(i) shall not
prevent the Company or a Restricted Subsidiary from:
(a) paying a dividend on its Capital Stock
within 60 days after the declaration thereof, if, on the
declaration date, the Company could have paid such dividend in
compliance with this Indenture;
(b) redeeming, repurchasing, defeasing,
acquiring or retiring for value, Subordinated Obligations in
exchange for or from proceeds of Refinancing Indebtedness
permitted by clause (viii) of the definition of Permitted
Indebtedness;
(c) acquiring, redeeming or retiring Capital
Stock or Subordinated Obligations of the Company in exchange
for, or in connection with a substantially concurrent issuance
of, Capital Stock (other than Disqualified Stock) of the
Company;
(d) repurchasing or redeeming (or paying a
dividend to the Parent Guarantor to enable the Parent
Guarantor to purchase or redeem) shares of, or options to
purchase shares of,
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<PAGE> 39
Capital Stock of the Company or the Parent Guarantor or stock
appreciation rights from officers, directors and employees (or
the heirs of such persons) of the Company, the Parent
Guarantor or any Restricted Subsidiary whose employment has
terminated or who have died or retired or become disabled or
upon the vesting of stock appreciation rights, so long as the
aggregate amount of such payments in any fiscal year does not
exceed the sum of (i) $2.5 million plus (ii) the proceeds of
any "key man" life insurance policies purchased by the Company
for the specific purpose of making such repurchases or
redemptions, it being understood that the cancellation of
Indebtedness owed by management to the Company in connection
with such repurchase or redemption shall not be deemed to be a
Restricted Payment;
(e) any purchase of Subordinated Obligations
from Excess Proceeds remaining after an Offer made pursuant to
Section 4.06 to the extent permitted to be used for general
corporate purposes;
(f) cash dividends or advances to the Parent
Guarantor in amounts equal to (i) the amounts required for the
Parent Guarantor to pay any Federal, state or local income
taxes to the extent that such income taxes are attributable to
the income of the Company and its Subsidiaries, (ii) the
amounts required for the Parent Guarantor to pay franchise
taxes and other fees required to maintain its legal existence,
(iii) an amount not to exceed $200,000 in any fiscal year to
permit the Parent Guarantor to pay corporate overhead expenses
incurred in the ordinary course of business, (iv) on or about
the Issue Date the amount required to enable the Parent
Guarantor to repay the 10 1/8% Notes and to enable the Parent
Guarantor to make the payments due under the Recapitalization
Agreement; and (v) reasonable and customary costs and expenses
incident to a public offering of the common stock of the
Parent Guarantor to the extent that the proceeds therefrom are
intended to be contributed to the Company;
(g) repurchases of Capital Stock deemed to
occur upon the exercise of employee stock options if such
Capital Stock is surrendered in lieu of the exercise price
thereof;
(h) the payment of any dividend by a
Restricted Subsidiary of the Company to the holders of its
equity interests on a pro rata basis; and
(i) so long as no Event of Default shall
have occurred and be continuing, other Restricted Payments not
otherwise permitted pursuant to this covenant up to $10.0
million in the aggregate.
(iii) Proceeds of Capital Stock used to make
Restricted Payments described in Section 4.04(ii)(c)
shall not increase the amount available for
Restricted Payments. The Restricted Payments made
pursuant to Sections 4.04(ii)(b), (c), (d)(ii), (e),
(f), (g), (h) and (i) shall not be included in the
calculation of subsequent Restricted Payments.
Restricted
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<PAGE> 40
Payments made pursuant to Sections 4.04(ii)(a) and
(d)(i) shall be included in the calculation of
subsequent Restricted Payments.
SECTION 4.05. Limitation on Dividends and Other Payment
Restrictions Affecting Restricted Subsidiaries.
(i) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly,
cause to exist or become effective or enter into any
encumbrance or restriction (other than pursuant to
law or regulation) on the ability of any Restricted
Subsidiary (a) to pay dividends or make any other
distributions in respect of its Capital Stock or pay
any debt or other obligation owed to the Company or
any other Restricted Subsidiary; (b) to make loans or
advances to the Company or any other Restricted
Subsidiary; or (c) to transfer any of its property or
assets to the Company or any other Restricted
Subsidiary.
(ii) The provisions of Section 4.05(i) shall not
apply: (a) with respect to Sections 4.05(i)(a), (b)
and (c), to encumbrances and restrictions (1) in
existence under or by reason of any agreements (not
otherwise described in clause (3) below) in effect on
the Issue Date; (2) relating to Indebtedness of a
Restricted Subsidiary and existing at such Restricted
Subsidiary at the time it became a Restricted
Subsidiary if such encumbrance or restriction was not
created in connection with or in anticipation of the
transaction or series of related transactions
pursuant to which such Restricted Subsidiary became a
Restricted Subsidiary or was acquired by the Company;
(3) pursuant to the Credit Agreement, provided that
such restrictions or encumbrances are not more
restrictive with respect to dividend and other
payment restrictions than those contained in the
Credit Agreement as in effect on the Issue Date; (4)
pursuant to the Indenture and the Securities; (5)
which result from the renewal, refinancing, extension
or amendment of an agreement referred to in Sections
4.05(ii)(a)(1), (2) and (6) and in Sections
4.05(ii)(b)(1) and (2), provided that such
encumbrances or restrictions, when taken as a whole,
are no more restrictive to such Restricted Subsidiary
and are not materially less favorable to the Holders
than those under or pursuant to the agreement
evidencing the Indebtedness so extended, renewed,
refinanced or replaced; or (6) relating to
Refinancing Indebtedness Incurred pursuant to the
definition of Permitted Indebtedness; and (b) with
respect to Section 4.05(i)(c) only, to (1) any
encumbrance or restriction relating to Indebtedness
that is permitted to be Incurred and secured pursuant
to Sections 4.03 and 4.13 that limits the right of
the debtor to dispose of the assets or property
securing such Indebtedness; (2) any encumbrance or
restriction in connection with an acquisition of
property, so long as such encumbrance or restriction
relates solely to the property so acquired and was
not created in connection with or in anticipation of
such acquisition; (3) customary non-assignment and
non-transfer provisions in leases,
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<PAGE> 41
contracts or licenses entered into in the ordinary
course of business; (4) customary restrictions
contained in asset sale agreements limiting the
transfer of such assets pending the closing of such
sale; (5) Liens permitted pursuant to Section 4.13
and restrictions in the agreements creating such
Liens; (6) any agreement or instrument governing
Indebtedness of a Foreign Subsidiary now or hereafter
outstanding if it constitutes Permitted Indebtedness,
and (7) any amendments to any of the foregoing that,
when taken as a whole, are not more restrictive than
those contained in the agreement being amended.
SECTION 4.06. Limitation on Asset Dispositions.
(i) The Company shall not, and shall not permit any
Restricted Subsidiary to, make any Asset Disposition
unless (a) the Company or such Restricted Subsidiary
receives consideration at the time of such Asset
Disposition at least equal to the Fair Market Value
of the shares and assets subject to such Asset
Disposition; (b) at least 75% of the consideration
thereof received by the Company or such Restricted
Subsidiary is in the form of cash or cash
equivalents, provided, however, that any securities
or notes received by the Company or such Restricted
Subsidiary in connection with such Asset Disposition
that are converted by the Company or such Restricted
Subsidiary into cash or cash equivalents within 10
business days of the date of such Asset Disposition
shall be deemed to be cash equivalents; (c) the
Company delivers an Officers' Certificate to the
Trustee certifying that such Asset Disposition
complies with subclauses (a) and (b); and (d) an
amount equal to 100% of the Net Available Cash from
such Asset Disposition is applied by the Company (or
such Restricted Subsidiary) (1) first, to the extent
the Company elects (or is required by the terms of
any Senior Indebtedness), to prepay, repay or
purchase Senior Indebtedness or Senior Indebtedness
of the Subsidiary Guarantors (in each case, other
than Indebtedness owed to the Company or an Affiliate
of the Company) or, if the Asset Disposition is made
by a Foreign Restricted Subsidiary, Senior
Indebtedness of a Foreign Restricted Subsidiary,
within 270 days from the later of the date of such
Asset Disposition or the receipt of such Net
Available Cash; provided, however, that in connection
with any prepayment, repayment or purchase of
Indebtedness pursuant to this subclause (1), the
Company or such restricted Subsidiary will retire
such Indebtedness and will cause the related loan
commitment, if any, to be permanently reduced in an
amount equal to the principal amount so prepaid,
repaid or purchased; (2) second, to the extent of the
balance of Net Available Cash after application in
accordance with sub-subclause (1), to the extent the
Company or such Restricted Subsidiary elects, to
reinvest in Additional Assets (including by means of
an Investment in Additional Assets by the Company or
a Restricted Subsidiary with Net Available Cash
received by the Company or another Restricted
Subsidiary) within 270 days from the later of such
Asset Disposition or the
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receipt of such Net Available Cash; and (3) third, to
the extent of the balance of such Net Available Cash
after application in accordance with sub-subclauses
(1) and (2) (which balance constitutes "Excess
Proceeds"), to make an Offer (as defined in the next
paragraph) to purchase Securities pursuant to and
subject to the conditions of the following paragraph.
Pending application of Net Available Cash pursuant to
this provision, such Net Available Cash shall be
invested in Temporary Cash Investments or used to
reduce revolving credit borrowings of Senior
Indebtedness.
(ii) When the aggregate amount of Excess Proceeds
exceeds $15 million, the Company shall apply the
Excess Proceeds to the repayment of the Securities
pursuant to an offer to purchase (an "Offer") from
all holders of the Securities in accordance with the
procedures set forth in this Indenture in the
principal amount (expressed as a multiple of $1,000)
of Securities that may be purchased out of an amount
(the "Security Amount") equal to such Excess
Proceeds. The offer price for the Securities shall be
payable in cash in an amount equal to 100% of the
principal amount 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, the Company may use any remaining Excess
Proceeds for general corporate purposes. If the
aggregate principal amount of Securities surrendered
by holders thereof exceeds the amount of Excess
Proceeds, the Trustee shall select the Securities to
be purchased on a pro rata basis. Upon the completion
of the purchase of all the Securities tendered
pursuant to an Offer, the amount of Excess Proceeds,
if any, shall be reset at zero.
(iii)(a) Within 10 days after the Company becomes
obligated to make an Offer, the Company shall deliver
to the Trustee and mail to each Holder a written
notice of its Offer to purchase Securities, in whole
or in part, (subject to proration as hereinafter
described in the event the Offer is oversubscribed)
in integral multiples of $1,000 of principal amount,
at the applicable purchase price. The notice shall
specify a purchase date not less than 30 days nor
more than 60 days after the date of such notice (the
"Purchase Date") and all instructions and materials
necessary to tender Securities pursuant to the Offer,
together with the information contained in Section
4.06(iii)(b).
(b) Not later than the date upon which
written notice of an Offer is delivered to
the Trustee as provided below, the Company
shall deliver to the Trustee an Officers'
Certificate as to (i) the Offered Price,
(ii) the allocation of the Net Available
Cash from the Asset Dispositions pursuant to
which such Offer is being made
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<PAGE> 43
and (iii) the compliance of such allocation
with the provisions of this Indenture. On
such date, the Company shall also
irrevocably deposit with the Trustee or with
a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold
in trust) in Temporary Cash Investments an
amount equal to the Offered Price to be held
for payment in accordance with the
provisions of this Indenture.
(c) If the terms of any outstanding pari
passu Indebtedness require the Company to
make a similar offer to purchase to all
holders of such pari passu Indebtedness with
the proceeds from any Asset Disposition, the
Excess Proceeds available to fund an Offer
to the Holders of Securities shall be
reduced on a pro rata basis to reflect the
Company's offer to purchase obligation under
such pari passu Indebtedness.
(d) The Company shall comply, to the extent
applicable, with the requirements of Section
14(e) of the Exchange Act and any other
securities laws or regulations in connection
with the repurchase of Securities pursuant
to this Section 4.06. To the extent that the
provisions of any securities laws or
regulations conflict with the provisions of
this Section 4.06, the Company shall comply
with the applicable securities laws and
regulations and shall not be deemed to have
breached its obligations under this Section
4.06 by virtue thereof.
SECTION 4.07. Limitation on Transactions with Affiliates.
(i) The Company shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly,
conduct any business or enter into any transaction or
series of related transactions with or for the
benefit of any Affiliate, unless (a) the terms of
such transaction or series of related transactions
are (1) set forth in writing and (2) no less
favorable to the Company or such Restricted
Subsidiary than those that could reasonably be
obtained at such time in a comparable arm's length
transaction with an unrelated third party; (b) with
respect to a transaction or series of related
transactions involving aggregate payments or value in
excess of $3.0 million, the Board of Directors
(including a majority of the Disinterested Directors
thereof) approves such transaction or series of
related transactions and, in its good faith judgment,
believes that such transaction or series of related
transactions complies with Section 4.07(i)(a), as
evidenced by a Certified Resolution delivered to the
Trustee; and (c) with respect to a transaction or
series of related transactions
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<PAGE> 44
involving aggregate payments or value in excess of
$15.0 million, the Company shall, prior to the
consummation thereof, obtain a written opinion of a
nationally recognized accounting, appraisal or
investment banking firm stating that the transaction
is fair to the Company or such Restricted Subsidiary
from a financial point of view and file the same with
the Trustee.
(ii) Section 4.07(i) shall not prohibit (a) any
Restricted Payment permitted to be paid pursuant to
Section 4.04, (b) any issuance of securities, or
other payments, awards or grants in cash, securities
or otherwise pursuant to, or the funding of,
employment arrangements, stock options and stock
ownership plans approved by the Board of Directors
(including a majority of the Disinterested Directors
thereof), (c) any transaction pursuant to any
agreement in existence on the Issue Date or any
amendment or replacement thereof that, taken in its
entirety, is no less favorable to the Company than
the agreement as in effect on the Issue Date, (d)
loans or advances to employees in the ordinary course
of business of the Company, not to exceed $1.0
million per employee and $3.0 million in the
aggregate, (e) the payment of indemnities provided
for by the Company's charter, by-laws and written
agreements and reasonable fees to directors of the
Company, the Parent Guarantor and the Restricted
Subsidiaries who are not employees of the Company,
the Parent Guarantor or the Restricted Subsidiaries,
(f) any transaction between the Company and a
Restricted Subsidiary or between Restricted
Subsidiaries, (g) the making of payments to Salomon
Smith Barney Inc. or its Affiliates for investment
banking or other financial services, (h) fees,
compensation, and indemnities under employment
arrangements entered into by the Company or its
Restricted Subsidiaries in the ordinary course of
business, and (I) issuance of Capital Stock (other
than Disqualified Stock) of the Company and the
granting of registration rights with respect thereto.
SECTION 4.08. Change of Control.
(i) Upon a Change of Control, each Holder shall have
the right to require that the Company repurchase all
or any part of such Holder's Securities at a
repurchase price in cash equal to 101% of the
principal amount thereof plus accrued and unpaid
interest thereon, if any, through the date of
repurchase. In the event that at the time of such
Change of Control the terms of the Bank Indebtedness
or other Senior Indebtedness restrict or prohibit the
repurchase of Securities pursuant to this Section
4.08, then prior to the mailing of the notice to
Holders provided for Section 4.08(ii) below, but in
any event within 30 days following any Change of
Control, the Company covenants to (a) repay in full
all Bank Indebtedness or such other Senior
Indebtedness to the extent required to permit the
repurchase of Securities pursuant to this provision
or (b) obtain the requisite consent under the
agreements governing the Bank Indebtedness or such
other Senior Indebtedness to permit the repurchase of
the Securities as provided for in Section 4.08(ii).
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(ii) Within 30 days following any Change of Control,
the Company shall send, by first-class mail to each
Holder, a notice to each Holder with a copy to the
Trustee stating:
(a) that a Change of Control has occurred
and that such Holder has the right to
require the Company to purchase such
Holder's Securities at a purchase price in
cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest
thereon, if any, to the date of purchase;
(b) the purchase date (which shall be no
earlier than 30 days nor later than 60 days
from the date such notice is mailed); and
(c) the instructions determined by the
Company, consistent with this Section 4.08,
that a Holder must follow in order to have
its Securities purchased, together with the
information contained in Section 4.08(iii)
(and including any related materials).
(iii) Holders electing to have a Security purchased
will be required to surrender the Security, with an
appropriate form duly completed, to the Company at
the address specified in the notice at least five
Business Days prior to the purchase date. Holders
will be entitled to withdraw their election if the
Trustee or the Company receives not later than three
Business Days prior to the purchase date, a telegram,
telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the
Security that was delivered for purchase by the
Holder and a statement that such Holder is
withdrawing its election to have such Security
purchased.
(iv) On the purchase date, all Securities purchased
by the Company under this provision shall be
delivered by the Trustee for cancellation, and the
Company shall pay the purchase price plus accrued and
unpaid interest thereon, if any, to the Holders
entitled thereto.
(v) The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of
the Exchange Act and any other securities laws or
regulations in connection with the repurchase of
Securities pursuant to this Section 4.08. To the
extent that the provisions of any securities laws or
regulations conflict with the provisions of this
Section 4.08, the Company shall comply with the
applicable securities laws
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and regulations and shall not be deemed to have
breached its obligations under this Section 4.08 by
virtue thereof.
SECTION 4.09. Designation of Restricted and Unrestricted
Subsidiaries. The Board of Directors may designate any Subsidiary of the Company
(including any newly acquired or newly formed Subsidiary of the Company) to be
an Unrestricted Subsidiary if (i) the Subsidiary to be so designated does not
own any Capital Stock or Indebtedness of, or own or hold any Lien on any
property of, the Company or any other Restricted Subsidiary, (ii) the Subsidiary
to be so designated is not obligated under any Indebtedness or other obligation
that, if in default, would result (with the passage of time or the giving of
notice or otherwise) in a default on any Indebtedness of the Company or any
Restricted Subsidiary and (iii) either (a) the Subsidiary to be so designated
has total assets of $1,000 or less or (b) if such Subsidiary has assets greater
than $1,000, such designation would be permitted under Section 4.04 as a
Restricted Payment. Unless so designated as an Unrestricted Subsidiary, any
Person that becomes a Subsidiary of the Company or of any Restricted Subsidiary
will be classified as a Restricted Subsidiary.
Notwithstanding the foregoing sentence, the Board of Directors may
designate any Unrestricted Subsidiary to be a Restricted Subsidiary if,
immediately after giving pro forma effect to such designation, (i) the Company
could incur $1.00 of additional Indebtedness pursuant to clause (i) of the
definition of Permitted Indebtedness and (ii) no Default shall have occurred and
be continuing. Any such designation by the Board of Directors shall be evidenced
to the Trustee by promptly filing with the Trustee a copy of the Certified
Resolution giving effect to such designation and an Officers' Certificate
certifying that such designation complies with this Section 4.09.
SECTION 4.10. Limitation on Layered Indebtedness.
(i) Each of the Company and the Parent Guarantor
shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, Incur any
Indebtedness that is subordinate in right of payment
to any other Indebtedness of the Company, the Parent
Guarantor or such Restricted Subsidiary, as the case
may be, unless such Indebtedness is subordinate in
right of payment to, or ranks pari passu with, the
Securities in the case of the Company or the
Guarantees in the case of the Guarantors.
(ii) The Guarantors shall not, directly or
indirectly, Guarantee any Indebtedness of the Company
that is subordinated in right of payment to any other
Indebtedness of the Company unless such Guarantee is
subordinate in right of payment to, or ranks pari
passu with, the Guarantees.
SECTION 4.11. Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of the
Company an Officers' Certificate stating that in the course of the performance
by the signers of their duties as Officers of the Company they would normally
have knowledge of any Default and whether or not the signers
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know of any Default that occurred during such period. If they do, the
certificate shall describe the Default, its status and what action the Company
is taking or proposes to take with respect thereto. The Company also shall
comply with Section 314(a)(4) of the TIA.
SECTION 4.12. Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments and
do such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
SECTION 4.13. Limitation on Liens. Each of the Company and the
Parent Guarantor shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, Incur any Lien of any kind, other than Permitted Liens,
on or with respect to any property or assets now owned or hereafter acquired or
any interest therein or any income or profits therefrom to secure Indebtedness
that is subordinate in right of payment to, or ranks pari passu with, in the
case of the Company, the Securities, or, in the case of the Guarantors, the
Guarantees, unless the Securities are secured prior to (in the case of any
Indebtedness that is subordinated in right of payment), or equally and ratably
with (in the case of any Indebtedness that ranks pari passu), the Indebtedness
so secured.
SECTION 4.14. Future Subsidiary Guarantors. The Company shall
cause each Domestic Restricted Subsidiary created or acquired after the Issue
Date that has at any time a Fair Market Value of more than $500,000 to execute
and deliver to the Trustee a supplemental indenture pursuant to which such
Restricted Subsidiary will Guarantee payment of the Securities on the same terms
and conditions as those set forth in this Indenture; provided that the aggregate
Fair Market Value of Domestic Restricted Subsidiaries that are not Subsidiary
Guarantors shall not at any time exceed $1,500,000. Each Subsidiary Guarantee
will be limited in amount to an amount not to exceed the maximum amount that can
be Guaranteed by the applicable Subsidiary Guarantor without rendering such
Subsidiary Guarantee voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally. Notwithstanding the foregoing, if any Foreign Restricted
Subsidiary shall Guarantee any Indebtedness of the Company, the Parent Guarantor
or any Domestic Subsidiary while the Securities are outstanding, then the
Company shall cause such Foreign Restricted Subsidiary to execute and deliver to
the Trustee a supplemental indenture pursuant to which such Foreign Restricted
Subsidiary will guarantee payment of the Securities on the same terms and
conditions as those set forth in this Indenture.
ARTICLE 5
SURVIVING ENTITY
SECTION 5.01. Merger, Consolidation and Sale of Assets.
(i) The Company shall not, and shall not permit any
Restricted Subsidiary to, merge or consolidate with
or into any other entity or sell, convey, assign,
transfer, lease or otherwise dispose of all or
substantially all of the Company's assets (determined
on a consolidated
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basis for the Company and the Restricted
Subsidiaries) unless (a) the entity formed by or
surviving any such consolidation or merger (if other
than the Company or such Restricted Subsidiary) or to
which such sale, transfer or conveyance is made (the
"Surviving Entity") shall be a corporation organized
and existing under the laws of the United States of
America (or any state thereof) and such corporation
expressly assumes, by supplemental indenture
satisfactory to the Trustee, all obligations of the
Company or such Restricted Subsidiary, as the case
may be, pursuant to this Indenture; (b) immediately
before and after giving effect to such transaction or
series of transactions on a pro forma basis, no
Default or Event of Default (and no event that, after
notice or lapse of time, or both, would become an
Event of Default) shall have occurred and be
continuing; (c) immediately after giving effect to
such transaction or series of transactions on a pro
forma basis (including, without limitation, any
Indebtedness Incurred or anticipated to be Incurred
in connection with such transaction or series of
transactions), the Company or the Surviving Entity,
as the case may be, would be able to Incur at least
$1.00 of additional debt pursuant to clause (i) of
the definition of Permitted Indebtedness; and (d) the
Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger or transfer
and such supplemental indenture (if any) comply with
this Indenture. Notwithstanding the foregoing, no
Subsidiary Guarantor shall merge or consolidate with
or into any other entity, or sell, convey, assign,
transfer, lease or otherwise dispose of all or
substantially all of its assets (other than to the
Company or another Subsidiary Guarantor), unless the
Company and its remaining Restricted Subsidiaries are
in compliance with Sections 5.01(i)(b), (c) and (d).
(ii) The Surviving Entity shall succeed to, and be
substituted for, and may exercise every right and
power of, the Company or such Restricted Subsidiary,
as the case may be, under this Indenture, but in the
case of a lease, the Company or such Restricted
Subsidiary, as the case may be, shall not be released
from the obligation to pay the principal of and
interest on the Notes.
(iii) Notwithstanding Sections 5.01(i)(b), (c) and
(d), any Domestic Restricted Subsidiary may
consolidate with, merge into or transfer all or part
of its properties and assets to the Company or any
other Domestic Restricted Subsidiary, and any Foreign
Restricted Subsidiary may consolidate with, merge
into or transfer all or part of its properties or
assets to (a) any other Foreign Restricted Subsidiary
or (b) the Company or any Domestic Restricted
Subsidiary, provided that the surviving company or
the transferee entity, as applicable, in such
consolidation, merger or transfer is the Company or
such Domestic Restricted Subsidiary.
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ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" occurs
if:
(i) the Company and the Guarantors default in any
payment of interest on any Security when the same
becomes due and payable, and such default continues
for a period of 30 days;
(ii) the Company and the Guarantors (a) default in
the payment of the principal of any Security when the
same becomes due and payable at its Stated Maturity,
upon redemption, upon declaration of acceleration or
otherwise, or (b) fail to redeem or purchase
Securities when required pursuant to this Indenture
or the Securities;
(iii) the Company or any Restricted Subsidiary fails
to comply with the provisions of Section 5.01;
(iv) the Company, the Parent Guarantor or any
Restricted Subsidiary, as the case may be, fails to
comply with Sections 4.03, 4.04, 4.05, 4.06, 4.07,
4.08, 4.10, 4.13 or 4.14 (other than a failure to
purchase Securities when required under Section 4.06
or 4.08) of this Indenture and such failure continues
for 30 days after the notice specified in Section
6.02;
(v) the Company, the Parent Guarantor or any
Restricted Subsidiary fails to comply with any of its
agreements in the Securities or this Indenture (other
than those referred to in clauses (i), (ii), (iii) or
(iv) above) and such failure continues for 60 days
after the notice specified in Section 6.02;
(vi) the principal, any premium or accrued and unpaid
interest of Indebtedness of the Company, the Parent
Guarantor or any Restricted Subsidiary is not paid
within any applicable grace period after final
maturity or is accelerated by the holders thereof
because of a default, the total amount of such
Indebtedness unpaid or accelerated exceeds $10
million at the time and such default continues for 10
days;
(vii) the Company, any Guarantor or any Foreign
Significant Subsidiary pursuant to or within the
meaning of any Bankruptcy Law: (a) commences a
voluntary case; (b) consents to the entry of an order
for relief against it in an involuntary case; (c)
consents to the appointment of a Custodian of it or
for any substantial part of its property; (d) makes a
general assignment for the benefit of its creditors;
or (e) takes any comparable action under any foreign
laws relating to insolvency;
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(viii) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that: (a) is
for relief against the Company, any Guarantor or any
Foreign Significant Subsidiary in an involuntary
case; (b) appoints a Custodian of the Company, any
Guarantor or any Foreign Significant Subsidiary or
for any substantial part of the Company's, any
Guarantor's or any Foreign Significant Subsidiary's
property; or (c) orders the winding up or liquidation
of the Company or any Guarantor or any Foreign
Significant Subsidiary; or any similar relief is
granted under any foreign laws and the order or
decree remains unstayed and in effect for 60 days;
(ix) any judgment or decree for the payment of money
in excess of $10 million at the time is entered
against the Company, the Parent Guarantor or any
Restricted Subsidiary and is not discharged and
either (a) an enforcement proceeding has been
commenced by any creditor upon such judgment or
decree or (b) there is a period of 60 days following
the entry of such judgment or decree during which
such judgment or decree is not discharged, waived or
the execution thereof stayed and, in the case of (a)
or (b), such default continues for 10 days; or
(x) the Parent Guarantee or any Subsidiary Guarantee
is held to be unenforceable or invalid or ceases to
be in full force and effect.
The foregoing shall constitute Events of Default whatever the
reason for any such Event of Default and whether it is voluntary or involuntary
or is 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.
The term "Bankruptcy Law" means Title 11, United States Code,
or any similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
SECTION 6.02. Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(vii) or (viii) with respect to the
Company or any Guarantor) occurs and is continuing, the Trustee by notice to the
Company, or the Holders of at least 25% in aggregate principal amount of the
Securities by written notice to the Company and the Trustee, may declare the
principal of and accrued interest on all the Securities to be due and payable.
Upon such a declaration, such principal and interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(vii) or (viii)
with respect to the Company or any Guarantor occurs, the principal of and
interest on all the Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holders. The Holders of a majority in principal amount of the Securities by
written notice to the Trustee may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
principal or interest that has become due solely because of acceleration. No
such rescission shall affect any subsequent Default or impair any right
consequent thereto.
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SECTION 6.03. Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect the
payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative, provided,
however, there shall be no duplication of any recovery provided by such
remedies.
SECTION 6.04. Waiver of Past Defaults. The Holders of a
majority in principal amount of the Securities by written notice to the Trustee
may waive an existing Default and its consequences except (i) a Default in the
payment of the principal of or interest on a Security or (ii) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected. When a Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.05. Control by Majority. The Holders of a majority
in principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Section 7.01, that the Trustee determines is unduly prejudicial to
the rights of other Holders, it being understood that the Trustee shall have no
duty to ascertain whether or not such actions or forbearances are unduly
prejudicial to such Holders, or would involve the Trustee in personal liability;
provided, however, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses and expenses caused by taking or
not taking such action.
SECTION 6.06. Limitation on Suits. Except as provided in
Section 6.07, a Holder may not pursue any remedy with respect to this Indenture
or the Securities, including any Guarantee provided hereunder, unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount
of the Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
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(5) the Holders of a majority in principal amount of the
Securities do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of and interest on the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of
Default in payment of interest or principal specified in Section 6.01(i) or (ii)
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal and interest remaining unpaid (together with interest on such unpaid
interest to the extent lawful) and the amounts provided for in Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee
may file such proofs of claim and other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee and the Holders allowed
in any judicial proceedings relative to the Company, its creditors or its
property and, unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other Person
performing similar functions, and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and its counsel, and any other amounts due the Trustee under Section 7.07.
SECTION 6.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 6, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent
required by Article 10;
THIRD: to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Securities
for principal and interest, respectively; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section. At least 15 days before such record
date, the Company shall mail to each Holder and the Trustee a notice that states
the record date, the payment date and the amount to be paid.
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SECTION 6.11. Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit by
Holders of more than 10% in principal amount of the Securities.
SECTION 6.12. Waiver of Stay or Extension Laws. The Company
(to the extent it may lawfully do so) shall 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 wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture; and
the Company (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and shall not hinder, delay or impede
the execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(i) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a
prudent Person would exercise or use under the
circumstances in the conduct of such Person's own
affairs.
(ii) Except during the continuance of an Event of
Default: (a) the Trustee undertakes to perform such
duties and only such duties as are specifically set
forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against
the Trustee; and (b) in the absence of bad faith on
its part, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions
to determine whether or not they conform to the
requirements of this Indenture.
(iii) 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: (a) this Section 7.01(iii) does not limit the
effect
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of Section 7.01(ii); (b) the Trustee shall not be
liable for any error of judgment made in good faith
by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent
facts; and (c) the Trustee shall not be liable with
respect to any action it takes or omits to take in
good faith in accordance with a direction received by
it pursuant to Section 6.05.
(iv) Every provision of this Indenture that in any
way relates to the Trustee is subject to Sections
7.01(i), (ii) and (iii).
(v) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may
agree in writing with the Company.
(vi) Money held in trust by the Trustee need not be
segregated from other funds except to the extent
required by law.
(vii) No provision of this Indenture shall require
the Trustee to expend or risk its own funds or
otherwise incur 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 to believe that repayment of
such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(viii) Every provision of this Indenture relating to
the conduct or affecting the liability of or
affording protection to the Trustee shall be subject
to the provisions of this Section and to the
provisions of the TIA.
SECTION 7.02. Rights of Trustee.
(i) The Trustee may rely on any document believed by
it to be genuine and to have been signed or presented
by the proper person. The Trustee need not
investigate any fact or matter stated in the
document.
(ii) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion
of Counsel. The Trustee shall not be liable for any
action it takes or omits to take in good faith in
reliance on the Officers' Certificate or Opinion of
Counsel.
(iii) The Trustee may act through agents and shall
not be responsible for the misconduct or negligence
of any agent appointed with due care.
(iv) The Trustee shall not be liable for any action
it takes or omits to take in good faith which it
believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct
does not constitute willful misconduct or negligence.
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(v) The Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal
matters relating to this Indenture and the Securities
shall be full and complete authorization and
protection from liability in respect of any action
taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of
such counsel.
(vi) The Trustee shall not be required to give any
bond or surety in respect of the performance of its
powers and duties hereunder.
(vii) The Trustee shall not be bound to ascertain or
inquire as to the performance or observance of any
covenants, conditions, or agreements on the part of
the Company, except as otherwise set forth herein,
but the Trustee may require of the Company full
information and advice as to the performance of the
covenants, conditions and agreements contained
herein.
(viii) The permissive rights of the Trustee to do
things enumerated in this Indenture shall not be
construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful
misconduct;
(ix) Except for (a) a default under Sections 6.01(i)
or (ii) hereof, or (b) any other event of which a
Trust Officer has "actual knowledge" and which event,
with the giving of notice or the passage of time or
both, would constitute an Event of Default under this
Indenture, the Trustee shall not be deemed to have
notice of any default or Event of Default unless
specifically notified in writing of such event by the
Company or the Holders of not less than 25% in
aggregate principal amount of the Securities then
outstanding; as used herein, the term "actual
knowledge" means the actual fact or state of knowing,
without any duty to make any investigation with
regard thereto.
SECTION 7.03. Individual Rights of Trustee. The Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with the
same rights it would have if it were not Trustee. Any Paying Agent, Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Securities or in the Securities other than the
Trustee's certificate of authentication.
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SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is actually known to a Trust Officer, the Trustee shall
mail to each Holder notice of the Default within 90 days after it occurs. Except
in the case of a Default in payment of principal of or interest on any Security
(including payments pursuant to the mandatory redemption provisions of such
Security, if any), the Trustee may withhold the notice if and so long as the
Trustee in good faith determines that withholding the notice is in the interests
of Holders.
SECTION 7.06. Reports by Trustee to Holders. At the expense of
the Company, as promptly as practicable after each August 15 beginning with the
August 15 following the date of this Indenture, and in any event prior to
October 15 in each year, the Trustee shall mail to each Holder a brief report
dated as of August 15 that complies with Section 313(a) of the TIA. The Trustee
also shall comply with Section 313(b) of the TIA.
A copy of each report at the time of its mailing to Holders
shall be filed with the Commission and each stock exchange (if any) on which the
Securities are listed. The Company agrees to notify promptly the Trustee
whenever the Securities become listed on any stock exchange and of any delisting
thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall
pay to the Trustee from time to time, and the Trustee shall be entitled to,
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. The
Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred or made by it, including costs of collection, in
addition to the compensation for its services. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. The Company shall indemnify
the Trustee and its agents, officers, directors and employees for, and hold them
harmless against, any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company
promptly of any claim for which it may seek indemnity. Failure by the Trustee to
so notify the Company shall not relieve the Company of its obligations
hereunder, except to the extent that such failure to notify the Company results
in additional liability to the Company. Upon notice of a claim, the Company
shall defend the claim with counsel reasonably satisfactory to the Trustee. If
the Company does not retain counsel within 10 Business Days after the notice,
the Trustee may retain separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not reimburse any expense or
indemnify against any loss, liability or expense incurred by the Trustee through
the Trustee's own willful misconduct or negligence. The Company need not pay for
any settlement made by the Trustee without the Company's consent, such consent
not to be unreasonably withheld.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of and interest on particular Securities.
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The Company's payment obligations pursuant to this Section
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(vii) or (viii) with
respect to the Company, the expenses are intended to constitute expenses of
administration under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign
at any time by so notifying the Company. The Holders of a majority in principal
amount of the Securities may remove the Trustee by so notifying the Trustee and
may appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of Trustee for any reason (the Trustee in such event being referred
to herein as the "retiring Trustee"), the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the Lien provided for
in Section 7.07.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or is removed, the retiring Trustee or the
Holders of 25% in aggregate principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to
this Section, the Company's obligations under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee
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corporation or banking association without any further act shall be the
successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation with 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 to the Trustee; and, in all such cases, such certificates 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.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of Section 310(a) of the TIA. The Trustee
shall have a combined capital and surplus of at least $50 million as set forth
in its most recent published annual report of condition. The Trustee shall
comply with Section 310(b) of the TIA; provided, however, that there shall be
excluded from the operation of Section 310(b)(1) of the TIA any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the TIA are
met.
SECTION 7.11. Preferential Collection of Claims Against
Company. The Trustee shall comply with Section 311(a) of the TIA, excluding any
creditor relationship listed in Section 311(b) of the TIA. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of the TIA to the
extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 8.01. Discharge of Liability on Securities;
Defeasance.
(i) When (a) the Company delivers to the Trustee all
outstanding Securities (other than Securities
replaced pursuant to Section 2.06) for cancellation
or (b) all outstanding Securities have become due and
payable, whether at maturity or as a result of the
mailing of a notice of redemption pursuant to Article
3 hereof and the Company irrevocably deposits with
the Trustee funds sufficient to pay at maturity or
upon redemption all outstanding Securities, including
interest thereon (other than Securities replaced
pursuant to Section 2.06), and, if in either case,
the Company pays all other sums payable hereunder by
the Company, then this Indenture shall, subject to
Sections 8.01(iii) and 8.06, cease to be of further
effect. The Trustee shall acknowledge satisfaction
and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of
the Company.
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(ii) Subject to Sections 8.01(iii), 8.02 and 8.06,
the Company at any time may terminate (a) all its
obligations under the Securities and this Indenture
("legal defeasance option") or (b) its obligations
under Sections 4.02 (to the extent that the failure
to comply with such Section 4.02 shall not violate
the TIA), 4.03, 4.04, 4.05, 4.06, 4.07, 4.08, 4.10,
4.12, 4.13 and 4.14 or Article 5 and the related
operation of Sections 6.01(iii), (iv), (v), (vi) and
(ix) ("covenant defeasance option"). The Company may
exercise its legal defeasance option notwithstanding
its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment
of the Securities may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option,
payment of the Securities may not be accelerated because of an Event of
Default specified in Sections 6.01(iii), (iv), (v), (vi) and (ix)
(except to the extent covenants or agreements referenced in such
Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon
written request of the Company, the Trustee shall acknowledge in
writing the discharge of those obligations that the Company terminates.
(iii) Notwithstanding clauses (i) and (ii) above, the
Company's obligations in Sections 2.03, 2.04, 2.05,
2.06, 7.07, 7.08, 8.04, 8.05 and 8.06 shall survive
until the Securities have been paid in full.
Thereafter, the Company's obligations in Sections
7.07, 8.04 and 8.05 shall survive.
SECTION 8.02. Conditions to Defeasance. The Company may
exercise its legal defeasance option or its covenant defeasance option only if:
(i) the Company irrevocably deposits in trust with
the Trustee money or U.S. Government Obligations for
the payment of principal and interest on the
Securities to maturity or redemption, as the case may
be;
(ii) the Company delivers to the Trustee a
certificate from a nationally recognized firm of
independent certified public accountants expressing
their opinion that the payments of principal and
interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any
deposited money without investment will provide cash
at such times and in such amounts as will be
sufficient to pay principal and interest when due on
all the Securities to maturity or redemption, as the
case may be;
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(iii) 91 days pass after the deposit is made and
during the 91-day period no Default specified in
Section 6.01(vii) or (viii) occurs with respect to
the Company, which is continuing at the end of the
period;
(iv) no Default or Event of Default has occurred and
is continuing on the date of such deposit and after
giving effect thereto;
(v) such deposit does not constitute a default under
any other agreement or instrument binding on the
Company and is not prohibited by Article 10 or 11;
(vi) the Company delivers to the Trustee an Opinion
of Counsel to the effect that the trust resulting
from the deposit does not constitute, or is qualified
as, a regulated investment company under the
Investment Company Act of 1940;
(vii) in the case of the legal defeasance option, the
Company shall have delivered to the Trustee an
Opinion of Counsel stating that (a) the Company has
received from the Internal Revenue Service a ruling,
or (b) since the date of this Indenture there has
been a change in the applicable federal income tax
law, in either case, to the effect that, and based
thereon such Opinion of Counsel shall confirm that,
the Holders of the 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 legal defeasance had not occurred;
(viii) in the case of the covenant defeasance option,
the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of
the Securities will not recognize income, gain or
loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to
federal income tax on the same amounts, in the same
manner and at the same times as would have been the
case if such covenant defeasance had not occurred;
and
(ix) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance and
discharge of the Securities as contemplated by this
Article 8 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date in
accordance with Article 3.
SECTION 8.03. Application of Trust Money. The Trustee shall
hold in trust money or U.S. Government Obligations deposited with it pursuant to
this Article 8. It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of and interest on the Securities.
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Money and securities so held in trust are not subject to Article 10.
SECTION 8.04. Repayment to Company. The Trustee and the Paying
Agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee
and the Paying Agent shall pay to the Company upon request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to the money must look to the Company
for payment as general creditors.
SECTION 8.05. Indemnity for Government Obligations. The
Company shall pay and shall indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against deposited U.S. Government Obligations or
the principal and interest received on such U.S. Government Obligations.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article 8 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 8 until such time as the Trustee
or Paying Agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article 8; provided, however, that, if the
Company has made any payment of principal of or interest on any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
money or U.S. Government Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Company, the
Guarantors and the Trustee may amend this Indenture, the Guarantees, or the
Securities without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities; provided, however, that the
uncertificated Securities are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code;
(4) to make any change in Article 10 that would limit or
terminate the benefits
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available to any holder of Senior Indebtedness (or Representatives therefor)
under Articles 10 and 11;
(5) to add guarantees with respect to the Securities or to
secure the Securities;
(6) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(7) to comply with any requirements of the Commission in
connection with qualifying this Indenture under the TIA;
(8) to make any change to Article 2, Section 4.01 or the
Exhibits hereto that applies only to Additional Notes (other than a
change relating to other provisions of this Indenture incorporated or
referenced in Article 2, Section 4.01 or any such Exhibit); or
(9) to make any change that does not adversely affect the
rights of any Holder.
An amendment under this Section may not make any change that
adversely affects the rights under Articles 10 and 11 of any holder of Senior
Indebtedness then outstanding unless the holders of such Senior Indebtedness (or
any group or representative thereof authorized to give a consent), consent to
such change.
After an amendment under this Section becomes effective, the
Company or the Trustee at the Company's request and expense, shall mail to
Holders a notice briefly describing such amendment. The failure to give such
notice to all Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 9.02. With Consent of Holders. The Company, the
Guarantors and the Trustee may amend this Indenture, the Guarantees, or the
Securities without notice to any Holder but with the written consent of the
Holders of at least a majority in principal amount of the Securities; provided,
however, that no amendment may be made to Section 4.08 without the written
consent of the Holders of at least 75% in principal amount of the Securities.
However, without the consent of each Holder affected, an amendment may not:
(1) reduce the principal amount of Securities the Holders of
which must consent to an amendment;
(2) reduce the rate of or extend the time for payment of
interest on any Security;
(3) reduce the principal of or extend the Stated Maturity of
any Security;
(4) reduce the premium payable upon the redemption of any
Security or change the time at which any Security may be redeemed in
accordance with Article 3;
(5) reduce the premium payable upon the repurchase of any
Security pursuant to Section 4.08;
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(6) make any Security payable in money other than that stated
in the Security;
(7) make any change in Section 6.04 or 6.07 or the second
sentence of this Section; or
(8) make any change in Article 10 or 11 that adversely affects
the rights of any Holder under Article 10 or 11;
(9) release the Company or the Guarantors from their
respective obligations under the Securities or the Guarantees (except
pursuant to Article 5); or
(10) make any changes in the Securities not otherwise
permitted by this Indenture that would adversely affect the rights of
any Holder.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section may not make any change that
adversely affects the rights under Article 10 or 11 of any holder of Senior
Indebtedness or Senior Indebtedness of Guarantors then outstanding unless the
holders of such Senior Indebtedness or Senior Indebtedness of Guarantors, as the
case may be (or any group or representative thereof authorized to give a
consent), consent to such change.
After an amendment under this Section becomes effective, the
Company, or the Trustee at the Company's request and expense, shall mail to
Holders a notice briefly describing such amendment. The failure to give such
notice to all Holders, or any defect therein, shall not impair or affect the
validity of an amendment under this Section.
SECTION 9.03. Compliance with Trust Indenture Act. Every
amendment to this Indenture or the Securities shall comply with the TIA as then
in effect.
SECTION 9.04. Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. After an
amendment or waiver becomes effective, it shall bind every Holder.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to give their consent
or take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not
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such Persons continue to be Holders after such record date. No such consent
shall be valid or effective for more than 120 days after such record date.
SECTION 9.05. Notation on or Exchange of Securities. If an
amendment changes the terms of a Security, the Trustee may require the Holder of
the Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company,
in exchange for the Security, shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
SECTION 9.06. Trustee to Sign Amendments. The Trustee shall
sign any amendment authorized pursuant to this Article 9 if the amendment does
not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing any
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such (i) amendment is authorized or permitted by this Indenture and
that all conditions precedent to the execution, delivery and performance of such
amendment have been satisfied; (ii) the Company has all necessary corporate
power and authority to execute and deliver the amendment and that the execution,
delivery and performance of such amendment has been duly authorized by all
necessary corporate action; (iii) the execution, delivery and performance of the
amendment do not conflict with, or result in the breach of or constitute a
default under any of the terms, conditions or provisions of (a) this Indenture
or (b) the Certificate of Incorporation or By-laws of the Company; (iv) such
amendment has been duly and validly executed and delivered by the Company, and
this Indenture together with such amendment constitutes a legal, valid and
binding obligation of the Company enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and general equitable principles; and (v) this Indenture
together with such amendment complies with the TIA.
SECTION 9.07. Payment for Consent. Neither the Company nor any
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest, fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Securities unless such consideration is
offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 10
SUBORDINATION OF SECURITIES
SECTION 10.01. Agreement to Subordinate. The Company agrees,
and each Holder by accepting a Security agrees, that the Indebtedness evidenced
by the Securities is
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subordinated in right of payment, to the extent and in the manner provided in
this Article 10, to the prior payment in full, in cash or cash equivalents, of
all existing and future Senior Indebtedness and that the subordination is for
the benefit of and enforceable by the holders of Senior Indebtedness. The
Securities shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Company and only Indebtedness of the Company
that is Senior Indebtedness shall rank senior to the Securities in accordance
with the provisions set forth herein. All provisions of this Article 10 shall be
subject to Section 10.12.
SECTION 10.02. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full of the Senior Indebtedness before Holders shall
be entitled to receive any payment of principal of or interest on the
Securities; and
(2) until the Senior Indebtedness is paid in full, any
distribution to which Holders would be entitled but for this Article 10
shall be made to holders of Senior Indebtedness as their interests may
appear, except that Holders may receive shares of stock and any debt
securities that are subordinated to Senior Indebtedness to at least the
same extent as the Securities.
SECTION 10.03. Default on Senior Indebtedness. The Company may
not pay the principal of or interest on the Securities, or make any deposit
pursuant to Section 8.01, and may not repurchase, redeem or otherwise retire any
Securities (collectively, "pay the Securities") if (i) a default in the payment
of principal or interest on any Senior Indebtedness occurs and is continuing
beyond any applicable grace period, or (ii) any other default on Senior
Indebtedness occurs and the maturity of such Senior Indebtedness is accelerated
in accordance with its terms unless, in either case, (a) the default has been
cured or waived and any such acceleration has been rescinded or (b) such Senior
Indebtedness has been paid in full. During the continuance of any default (other
than a default described in clause (i) or (ii) of the preceding sentence) with
respect to any Designated Senior Indebtedness pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or the expiration of any
applicable grace periods, the Company may not pay the Securities for a period (a
"Payment Blockage Period") commencing upon the receipt by the Company and the
Trustee of written notice of such default from the Representative of any
Designated Senior Indebtedness specifying an election to effect a Payment
Blockage Period (a "Blockage Notice") and ending 179 days thereafter (or
earlier, if such Payment Blockage Period is terminated (1) by written notice to
the Trustee and the Company from the Person or Persons who gave such Blockage
Notice, (2) by repayment in full of such Designated Senior Indebtedness or (3)
because the default giving rise to such Blockage Notice is no longer
continuing). Notwithstanding the provisions described in the immediately
preceding sentence (but subject to the provisions contained in the first
sentence of this Section), unless the holders of such Designated Senior
Indebtedness or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Indebtedness, the Company may resume payments
on the
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Securities after such Payment Blockage Period. Not more than one Blockage Notice
may be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to Designated Senior Indebtedness during such period.
SECTION 10.04. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 10.05. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article 10 should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness and pay it over to them as their
interests may appear.
SECTION 10.06. Subrogation. After all Senior Indebtedness is
paid in full and until the Securities are paid in full, Holders shall be
subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article 10 to holders of Senior Indebtedness which otherwise would have been
made to Holders is not, as between the Company and Holders, a payment by the
Company on Senior Indebtedness.
SECTION 10.07. Relative Rights. This Article 10 defines the
relative rights of Holders and holders of Senior Indebtedness. Nothing in this
Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal
of and interest on the Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness to receive distributions otherwise payable to
Holders.
SECTION 10.08. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the subordination of
the Indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 10.09. Rights of Trustee and Paying Agent.
Notwithstanding Section 10.03, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives written notice satisfactory to it that payments
may not be made under this Article 10. The Company, the Registrar or
co-registrar, the Paying Agent, a Representative of holders of or a holder or
holders holding a majority of Senior Indebtedness may give the written notice;
provided, however, that, if holders of Senior Indebtedness have a
Representative, only such Representative may give the notice.
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The Trustee, in its individual or any other capacity, may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the same with like
rights. The Trustee shall be entitled to all the rights set forth in this
Article 10 with respect to any Senior Indebtedness which may at any time be held
by it, to the same extent as any other holder of Senior Indebtedness; and
nothing in Article 7 shall deprive the Trustee of any of its rights as such
holder. Nothing in this Article 10 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness, the distribution may be made and the notice given to their
Representative (if any).
SECTION 10.11. Article 10 Not to Prevent Events of Default or
Limit Right to Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 10 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 10 shall have
any effect on the right of the Holders or the Trustee to accelerate the maturity
of the Securities.
SECTION 10.12. Trust Monies Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article 8 by the Trustee for
the payment of principal of and interest on the Securities shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article 10, and none of the Holders shall be
obligated to pay over any such amount to the Company or any holder of Senior
Indebtedness of the Company or any other creditor of the Company.
SECTION 10.13. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 10, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 10.02
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders or (iii) upon the Representatives for the holders of Senior Indebtedness
for the purpose of ascertaining the Persons entitled to participate in such
payment or distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article 10. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 10, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article 10, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article 10.
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SECTION 10.14. Trustee to Effectuate Subordination. Each
Holder by accepting a Security authorizes and directs the Trustee on his, her or
its behalf to take such action as may be necessary or appropriate to acknowledge
or effectuate the subordination between the Holders and the holders of Senior
Indebtedness as provided in this Article 10 and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 10.15. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall mistakenly pay over or distribute to Holders or the Company or any other
Person money or assets to which any holders of Senior Indebtedness shall be
entitled by virtue of this Article 10 or otherwise.
SECTION 10.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions. Each Holder by accepting a Security acknowledges and
agrees that the foregoing subordination provisions are, and are intended to be,
an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Senior Indebtedness and such holder of Senior Indebtedness shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Indebtedness.
ARTICLE 11
GUARANTEES; SUBORDINATION OF GUARANTEES
SECTION 11.01. Parent and Subsidiary Guarantees. Subject to
the provisions of this Article 11, the Parent Guarantor and each Subsidiary
Guarantor hereby unconditionally guarantees, jointly and severally, on a senior
subordinated basis to each Holder and to the Trustee on behalf of the Holders
(i) the due and punctual payment of principal of and interest on each Security
when and as the same shall become due and payable whether at the date of
maturity or by declaration of acceleration or otherwise, (ii) the due and
punctual payment of interest on the overdue principal of and interest, if any,
on the Securities, to the extent lawful, and (iii) the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee, all in accordance with the terms of the Securities and this Indenture
(the "Guarantees"). In case of the failure of the Company punctually to make any
such principal or interest payment, the Guarantors hereby agree to cause any
such payment to be made punctually when and as the same shall become due and
payable, whether at the date of maturity or by declaration of acceleration or
otherwise, and as if such payment were made by the Company. Each Guarantor
hereby agrees that its obligations hereunder shall be unconditional,
irrespective of and unaffected by the validity, regularity or enforceability of
the Securities or this Indenture, or of any amendment thereto or hereto, the
absence of any action to enforce the same, the waiver or consent by any Holder
or by the Trustee with respect to any provisions thereof or of this Indenture,
the recovery of any judgment against the Company or any action to enforce the
same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Company hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger, insolvency or bankruptcy of the Company, any
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right to require a proceeding first against the Company, protest or notice with
respect to the Securities or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that the Guarantees will not be discharged except by
complete performance of the obligations contained in the Securities, in this
Indenture and pursuant to the Guarantees. The Guarantors further agree that, as
between the Guarantors, on the one hand, and Holders and the Trustee, on the
other hand, (i) for purposes of the Guarantees, the maturity of the obligations
guaranteed by the Guarantees may be accelerated as provided in Article 6,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed thereby, and (ii) in the
event of any acceleration of such obligations (whether or not due and payable),
such obligations shall forthwith become due and payable by the Guarantors for
purposes of the Guarantees.
The Guarantees shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment, or any part thereof,
of principal of or interest on any of the Securities is rescinded or must
otherwise be returned by the Holders or the Trustee upon the insolvency,
bankruptcy or reorganization of the Company or the Guarantors or otherwise, all
as though such payment had not been made.
The Guarantors shall be subrogated to all rights of the
Holders against the Company in respect of any amounts paid by the Guarantors
pursuant to the provisions of the Guarantees or this Indenture; provided,
however, that the Guarantors shall not be entitled to enforce or to receive any
payments until the principal of and interest on all Securities issued hereunder
shall have been paid in full.
The Guarantees are specifically designated by the Guarantors
as Indebtedness of the Guarantors for purposes of this Indenture.
Any term or provision of this Indenture to the contrary
notwithstanding, the maximum aggregate amount of the obligations guaranteed
hereunder by any Guarantor shall not exceed the maximum amount that, after
giving effect to all other contingent and fixed liabilities of such Guarantor
and after giving effect to any collections from or payments made on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under
its Guarantee or pursuant to its contribution obligations under this Indenture,
can be hereby guaranteed without rendering this Indenture, as it relates to such
Guarantor, voidable under the applicable law relating to fraudulent conveyance
or fraudulent transfer or similar laws affecting the rights of creditors
generally.
SECTION 11.02. Contribution. In order to provide for just and
equitable contribution among the Guarantors, the Guarantors agree, inter se,
that in the event any payment or distribution is made by a Guarantor (a "Funding
Guarantor") under its Guarantee, such Funding Guarantor shall be entitled to a
contribution from all other Guarantors in a pro rata amount based upon the
Adjusted Net Assets of each Guarantor (including the Funding Guarantor) for all
payments, damages and expenses incurred by that Funding Guarantor in discharging
the Company's obligations with respect to the Securities or any other
Guarantor's obligations with respect to the Guarantee.
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"Adjusted Net Assets" of such Guarantor at any date shall mean
the lesser of the amount by which (x) the fair value of the property of such
Guarantor exceeds the total amount of liabilities, including, without
limitation, contingent liabilities (after giving effect to all other fixed and
contingent liabilities Incurred or assumed on such date), but excluding
liabilities under the Guarantee, of such Guarantor at such date and (y) the
present fair saleable value of the assets of such Guarantor at such date exceeds
the amount that will be required to pay the probable liability of such Guarantor
on its debts including, without limitation, Senior Indebtedness of Guarantors
(after giving effect to all other fixed and contingent liabilities Incurred or
assumed on such date and after giving effect to any collection from any
Subsidiary of such Guarantor in respect of the obligations of such Subsidiary
under the Guarantee), excluding debt in respect of the Guarantee of such
Guarantor, as they become absolute and matured.
SECTION 11.03. Agreement to Subordinate. The Parent Guarantor
agrees, and each Holder by accepting a Security, agrees, that the Parent
Guarantee is subordinated in right of payment, to the extent and in the manner
provided in this Article 11, to the prior payment in full, in cash or cash
equivalents, of all existing and future Senior Indebtedness of the Parent
Guarantor and that the subordination is for the benefit of and enforceable by
the holders of Senior Indebtedness of the Parent Guarantor. The Subsidiary
Guarantors agree, and each Holder, by accepting a Security, agrees, that the
Subsidiary Guarantees are subordinated in right of payment, to the extent and in
the manner provided in this Article 11, to the prior payment in full, in cash or
cash equivalents, of all existing and future Senior Indebtedness of the
Subsidiary Guarantors and that the subordination is for the benefit of and
enforceable by the holders of Senior Indebtedness of the Subsidiary Guarantors.
The Guarantees shall in all respects rank pari passu with all other Senior
Subordinated Indebtedness of the Guarantors and only Indebtedness of the
Guarantors which is Senior Indebtedness of the Guarantors shall rank senior to
the Guarantees in accordance with the provisions set forth herein. All
provisions of this Article 11 shall be subject to Section 11.14.
SECTION 11.04. Liquidation, Dissolution, Bankruptcy. Upon any
payment or distribution of the assets of a Guarantor to creditors upon a total
or partial liquidation or a total or partial dissolution of such Guarantor, or
in a bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to a Guarantor or such Guarantor's property:
(1) holders of Senior Indebtedness of the Guarantors shall be
entitled to receive payment in full of the Senior Indebtedness of the
Guarantors before Holders shall be entitled to receive any payment of
principal of or interest on the Securities pursuant to the Guarantees;
and
(2) until the Senior Indebtedness of the Guarantors is paid in
full, any distribution to which Holders would be entitled but for this
Article 11 shall be made to holders of Senior Indebtedness of the
Guarantors as their interests may appear, except that Holders may
receive shares of stock and any debt securities that are subordinated
to Senior Indebtedness of the Guarantors to at least the same extent as
under the Guarantees.
SECTION 11.05. Default on Senior Indebtedness of the
Guarantors. The Guarantors may not pay the principal of or interest on the
Securities pursuant to the Guarantees
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or make any deposit for the purpose of the discharge of their liabilities under
this Indenture and may not repurchase, redeem or otherwise retire any Securities
pursuant to the Guarantees (collectively, "pay the Securities") if (i) any
Senior Indebtedness of the Guarantors is not paid when due or (ii) any other
default on Senior Indebtedness of the Guarantors occurs and the maturity of such
Senior Indebtedness of the Guarantors is accelerated in accordance with its
terms unless, in either case, (a) the default has been cured or waived and any
such acceleration has been rescinded or (b) such Senior Indebtedness of the
Guarantors has been paid in full. During the continuance of any default (other
than a default described in clause (i) or (ii) of the preceding sentence) with
respect to any Designated Senior Indebtedness of the Guarantors pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Guarantors may not pay the
Securities for a period (a "Guarantor Payment Blockage Period") commencing upon
the receipt by the Guarantors and the Trustee of written notice of such default
from the Representative of any Designated Senior Indebtedness of the Guarantors
specifying an election to effect a Guarantor Payment Blockage Period (a
"Guarantor Blockage Notice") and ending 179 days thereafter (or earlier, if such
Guarantor Payment Blockage Period is terminated (1) by written notice to the
Trustee and the Guarantor from the Person or Persons who gave such Guarantor
Blockage Notice, (2) by repayment in full of such Designated Senior Indebtedness
of Guarantors or (3) because the default giving rise to such Guarantor Blockage
Notice is no longer continuing). Notwithstanding the provisions described in the
immediately preceding sentence (but subject to the provisions contained in the
first sentence of this Section 11.05), unless the holders of such Designated
Senior Indebtedness of the Guarantors or the Representative of such holders
shall have accelerated the maturity of such Designated Senior Indebtedness of
the Guarantors, the Guarantors may resume payments on the Securities pursuant to
the Guarantees after such Guarantor Payment Blockage Period. Not more than one
Guarantor Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Designated Senior
Indebtedness of the Guarantors during such period.
SECTION 11.06. Acceleration of Payment of Securities. If
payment of the Securities is accelerated because of an Event of Default, the
Company shall promptly notify the holders of the Designated Senior Indebtedness
of the Guarantors (or their Representatives) of the acceleration.
SECTION 11.07. When Distribution Must Be Paid Over. If a
distribution is made to Holders that because of this Article 11 should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for holders of Senior Indebtedness of Guarantors and pay it over to them
as their interests may appear.
SECTION 11.08. Subrogation. After all Senior Indebtedness is
paid in full and until the Securities are paid in full, Holders shall be
subrogated to the rights of holders of Senior Indebtedness of the Guarantors to
receive distributions applicable to Senior Indebtedness of the Guarantors. A
distribution made under this Article 11 to holders of Senior Indebtedness of the
Guarantors which otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Guarantors on Senior Indebtedness of
the Guarantors.
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SECTION 11.09. Relative Rights. This Article 11 defines the
relative rights of Holders and holders of Senior Indebtedness of the Guarantors.
Nothing in this Indenture shall:
(1) impair, as between the Guarantors and Holders, the
obligation of the Guarantors, which is absolute and unconditional, to
pay principal of and interest on the Securities pursuant to the
Guarantees in accordance with their terms; or
(2) prevent the Trustee or any Holder from exercising its
available remedies upon a Default, subject to the rights of holders of
Senior Indebtedness of the Guarantors to receive distributions
otherwise payable to Holders.
SECTION 11.10. Subordination May Not Be Impaired by the
Guarantors. No right of any holder of Senior Indebtedness of the Guarantors to
enforce the subordination of the Indebtedness evidenced by the Securities shall
be impaired by any act or failure to act by any Guarantor or by its failure to
comply with this Indenture.
SECTION 11.11. Rights of Trustee and Paying Agent.
Notwithstanding Section 11.05, the Trustee or Paying Agent may continue to make
payments on the Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two Business Days prior to the date of such payment, a Trust
Officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article 11. The Guarantors, the Registrar or co-registrar,
the Paying Agent, a Representative of holders of, or holders holding a majority
of Senior Indebtedness may give the notice; provided, however, that, if holders
of Senior Indebtedness of the Guarantors have a Representative, only such
Representative may give the notice.
The Trustee, in its individual or any other capacity, may hold
Senior Indebtedness of the Guarantors with the same rights it would have if it
were not Trustee.
The Registrar and co-registrar and the Paying Agent may do the
same with like rights. The Trustee shall be entitled to all the rights set forth
in this Article 11 with respect to any Senior Indebtedness of the Guarantors
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness of the Guarantors; and nothing in Article 7 shall deprive
the Trustee of any of its rights as such holder. Nothing in this Article 11
shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 7.07.
SECTION 11.12. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior
Indebtedness of the Guarantors, the distribution may be made and the notice
given to their Representative (if any).
SECTION 11.13. Article 11 Not to Prevent Events of Default or
Limit Right to Accelerate. The failure to make a payment pursuant to the
Securities by reason of any provision in this Article 11 shall not be construed
as preventing the occurrence of a Default. Nothing in this Article 11 shall have
any effect on the right of the Holders or the Trustee to accelerate the maturity
of the Securities.
SECTION 11.14. Trust Monies Not Subordinated. Notwithstanding
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government
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Obligations held in trust under Article 8 by the Trustee for the payment of
principal of and interest on the Securities shall not be subordinated to the
prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article 11, and none of the Holders shall be obligated to pay over
any such amount to the Guarantors or any holder of Senior Indebtedness of the
Guarantors or any other creditor of the Guarantors.
SECTION 11.15. Trustee Entitled to Rely. Upon any payment or
distribution pursuant to this Article 11, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 11.04
are pending, (ii) upon a certificate of the liquidating trustee or agent or
other Person making such payment or distribution to the Trustee or to the
Holders, or (iii) upon the Representatives for the holders of Senior
Indebtedness of the Guarantors for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of the
Senior Indebtedness of the Guarantors and other Indebtedness of the Guarantors,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article 11. In the
event that the Trustee determines, in good faith, that evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness of the
Guarantors to participate in any payment or distribution pursuant to this
Article 11, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
of the Guarantors held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and other facts
pertinent to the rights of such Person under this Article 11, and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment. The provisions of Sections 7.01 and 7.02 shall be applicable to all
actions or omissions of actions by the Trustee pursuant to this Article 11.
SECTION 11.16. Trustee to Effectuate Subordination. Each
Holder by accepting a Security authorizes and directs the Trustee on its behalf
to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders and the holders of Senior
Indebtedness of the Guarantors as provided in this Article 11 and appoints the
Trustee as attorney-in-fact for any and all such purposes.
SECTION 11.17. Trustee Not Fiduciary for Holders of Senior
Indebtedness of the Guarantors. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness of the Guarantors and shall
not be liable to any such holders if it shall mistakenly pay over or distribute
to Holders or the Guarantors or any other Person money or assets to which any
holders of Senior Indebtedness of the Guarantors shall be entitled by virtue of
this Article 11 or otherwise.
SECTION 11.18. Reliance by Holders of Senior Indebtedness of
the Guarantors on Subordination Provisions. Each Holder by accepting a Security
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness of the Guarantors, whether such Senior Indebtedness of the
Guarantors was created or acquired before or after the issuance of the
Securities, to acquire and continue to hold, or to continue to hold, such Senior
Indebtedness of the Guarantors and such holder of Senior Indebtedness of the
Guarantors shall be deemed
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conclusively to have relied on such subordination provisions in acquiring and
continuing to hold, or in continuing to hold, such Senior Indebtedness of the
Guarantors.
SECTION 11.19. Release of Guarantors. This Subsidiary
Guarantee as to any Subsidiary Guarantor shall terminate and be of no further
force or effect on the sale or other transfer (i) by such Subsidiary Guarantor
of all or substantially all of its assets in compliance with the terms of this
Indenture or (ii) by the Company of all of its stock or other equity interests
in such Subsidiary Guarantor, in each case to a Person that is not an Affiliate
of the Company; provided, however, that such sale or transfer shall be deemed to
constitute an Asset Disposition and the Company shall comply with all applicable
provisions of Section 4.06 with respect to such Asset Disposition.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or with another provision (an "incorporated provision")
included in this Indenture by operation of, Sections 310 to 318, inclusive, of
the TIA, such imposed duties or incorporated provision shall control. If any
provision of this Indenture modifies or excludes any provision of the TIA that
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
SECTION 12.02. Notices. Any notice or communication shall be
in writing and delivered in person or mailed by first-class mail addressed as
follows:
If to the Company or any Guarantor:
United States Can Company
900 Commerce Drive
Oak Brook, Illinois 60521
Attention: Chief Financial Officer
General Counsel
With a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
Attention: Philip J. Smith, Esq.
Jane D. Goldstein, Esq.
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If to the Trustee:
Bank One Trust Company, N.A.
One N. State Street, 9th Floor
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
If to the Paying Agent:
Bank One Trust Company, N.A.
One N. State Street, 9th Floor
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be mailed
to the Holder at the Holder's address as it appears on the registration books of
the Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it. If the Company or a Guarantor
mails a notice or communication to Holders, it shall mail a copy to the Trustee
and each Paying Agent at the same time.
SECTION 12.03. Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
or refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee and complying with Section 12.05 stating
that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have
been complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a covenant or
condition provided for in this Indenture (other than a certificate pursuant to
Section 3.14(a)(4) of the TIA) shall comply with the provisions of Section
3.14(e) of the TIA and shall include:
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(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or
she or such individual has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with or
satisfied.
SECTION 12.06. When Securities Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Person, directly or indirectly, controlling or controlled by or under,
direct or indirect, common control with the Company shall be disregarded and
deemed not to be outstanding, except that, for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee has actual knowledge to be so
owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
SECTION 12.07. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is a
Saturday, a Sunday or a day on which banking institutions are not required to be
open in the State of New York or the State of Illinois. If a payment date is a
Legal Holiday, payment shall be made on the next succeeding day that is not a
Legal Holiday, and no interest shall accrue for the intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 12.09. GOVERNING LAW. THIS INDENTURE AND THE
SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF
CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 12.10. No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company, the Guarantors or the
Trustee (as the case may be) shall not have any liability for any obligations of
the Company, the Guarantors or the Trustee (as the case may be) under the
Securities or this Indenture or for any claim based on, in respect of or by
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reason of such obligations or their creation. By accepting a Security, each
Holder shall waive and release all such liability. The waiver and release shall
be part of the consideration for the issue of the Securities.
SECTION 12.11. Successors. All agreements of each of the
Company and the Guarantors in this Indenture and the Securities shall bind their
respective successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 12.12. Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 12.13. Table of Contents; Headings. The table of
contents, cross-reference sheet and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not
intended to be considered a part hereof and shall not modify or restrict any of
the terms or provisions hereof.
SECTION 12.14. Severability. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Indenture to
be duly executed as of the date first written above.
UNITED STATES CAN COMPANY,
as Issuer
By: /s/ Paul W. Jones
------------------------------------------
Paul W. Jones
Chairman of the Board, President and Chief
Executive Officer
U.S. CAN CORPORATION,
as Parent Guarantor
By: /s/ Paul W. Jones
------------------------------------------
Paul W. Jones
Chairman of the Board, President and Chief
Executive Officer
USC MAY VERPACKUNGEN HOLDING, INC.,
as Subsidiary Guarantor
By: /s/ Paul W. Jones
------------------
Paul W. Jones
President
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: /s/ Benita A. Pointer
---------------------
Name: Benita A. Pointer
Title: Account Executive
<PAGE> 79
EXHIBIT A
[FORM OF FACE OF INITIAL NOTES]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Security Legend]
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT
AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
(B) IT IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A) (1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR
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<PAGE> 80
ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY), (C) IN
AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
REGULATION S UNDER THE SECURITIES ACT, (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS
SECURITY), (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES
LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY,
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF
TRANSFER ON THE REVERSE OF THIS SECURITY), (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY),
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING."
UNITED STATES CAN COMPANY
12 3/8% Senior Subordinated Notes Due 2010
No. U.S. $175,000,000
CUSIP No.: 911674 AB 5
United States Can Company, a Delaware corporation, promises to pay to
CEDE & Co., or registered assigns, the principal sum set forth above or such
other principal sum on the schedule attached hereto (which shall not exceed U.S.
$175,000,000) on October 1, 2010.
Interest Payment Dates: April 1 and October 1
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Record Dates: March 15 and September 15
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: October 4, 2000
UNITED STATES CAN COMPANY
By:
--------------------------
President
By:
--------------------------
Secretary
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<PAGE> 82
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BANK ONE TRUST COMPANY, N.A., as Trustee,
certifies that this is one of the
Securities referred to in the Indenture.
[seal]
By:
--------------------------
Authorized Signatory
A-4
<PAGE> 83
[FORM OF REVERSE SIDE OF INITIAL NOTES]
UNITED STATES CAN COMPANY
12 3/8% Senior Subordinated Notes due 2010
1. Interest
United States Can Company, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security (the "Security") at the rate per annum shown
above. The Company will pay interest semiannually on April 1 and October 1 of
each year. Interest on the Securities will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the Issue
Date. Interest will be computed on the basis of a 360-day year of 12 30-day
months. The Company shall pay interest on overdue principal at the rate borne by
the Securities plus 1% per annum, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
2. Special Interest
The holder of this Security is entitled to the benefits of a
Registration Rights Agreement, dated as of October 4, 2000, among the Company,
U.S. Can Corporation (the "Parent Guarantor"), USC May Verpackungen Holding Inc.
(the "Subsidiary Guarantor" and, together with the Parent Guarantor, the
"Guarantors") and the Initial Purchasers (the "Registration Rights Agreement").
Pursuant to the Registration Rights Agreement, the Company and the Guarantors
have agreed as follows:
(1) If neither a registration statement (the
"Exchange Offer Registration Statement") in respect of a registered
offered to exchange the Securities (the "Exchange Offer") nor a
registration statement permitting public resale of the Securities (the
"Shelf Registration Statement") has been filed on or prior to the 120th
day (the "Filing Date") after the date the Initial Notes were
originally issued (the "Issue Date"), then, commencing on the 121st day
after the Issue Date, additional interest on the Securities
("Liquidated Damages") shall accrue on the Securities over and above
the stated interest at a rate of 0.50% per annum of the principal
amount of the Securities for the first 90 days immediately following
the Filing Date, such Liquidated Damages rate increasing by an
additional 0.25% per annum of the principal amount of the Securities at
the beginning of each subsequent 90-day period;
(2) If the Exchange Offer Registration Statement is
not declared effective by the Commission on or prior to the 150th day
(the "Effectiveness Date") after the Issue Date, then, commencing on
the 151st day after the Issue Date, Liquidated Damages shall accrue on
the Securities included or which should have been included in such
Registration Statement over and above the stated interest at a rate of
0.50% per annum of the principal amount of the Securities for the first
90 days immediately following the Effectiveness Date, such Liquidated
Damages rate increasing by an additional 0.25%
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<PAGE> 84
per annum of the principal amount of the Securities at the end of each
subsequent 90-day period; and
(3) If (A) the Exchange Offer has not been
consummated, and the Shelf Registration Statement has not been declared
effective by the Commission, on or prior to the 180th day after the
Issue Date or (B) the Exchange Offer Registration Statement or, if
applicable, the Shelf Registration Statement has been declared
effective and such Registration Statement ceases to be effective at any
time during the periods specified in the Registration Rights Agreement
(unless all the Securities have previously been sold thereunder), then
Liquidated Damages shall accrue (over and above any interest otherwise
payable on such Securities) at a rate of 0.50% per annum of the
principal amount of the Securities for the first 90 days commencing on
(x) the 181st day after the Issue Date with respect to the Securities
validly tendered and not exchanged by the Company pursuant to the
Exchange Offer, in the case of (A) above, or (y) the day such Exchange
Offer Registration Statement or Shelf Registration Statement ceases to
be effective in the case of (B) above, such Liquidated Damages rate
increasing by an additional 0.25% per annum of the principal amount of
the Securities at the end of each such subsequent 90-day period (it
being understood and agreed that, in the case of (B) above, so long as
any Security is then covered by an effective Shelf Registration
Statement, no Liquidated Damages shall accrue on such Security);
provided, however, that the Liquidated Damages rate on any affected Security may
not exceed at any one time in the aggregate 1.0% per annum of the principal
amount of the Securities; and provided further, that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration Statement (in the
case of clause (1) of this Section 2), (2) upon the effectiveness of the
Exchange Offer Registration Statement (in the case of clause (2) of this Section
2), or (3) upon the exchange of all Securities tendered in the Exchange Offer or
the effectiveness of the Shelf Registration Statement (in the case of clause
(3)(A) of this Section 2), or upon the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement which had ceased to
remain effective (in the case of clause (3)(B) of this Section 2), Liquidated
Damages on the affected Securities as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to accrue as of the day
immediately preceding the date of the event described in such clause (or the
relevant subclause thereof).
3. Method of Payment
The Company, in accordance with Section 4.01 of the Indenture,
will pay interest on the Securities (except defaulted interest) to the persons
who are registered holders of Securities (each, a "Holder") at the close of
business on the Record Date next preceding the interest payment date even if
Securities are cancelled after the Record Date and on or before the interest
payment date. Holders must surrender Securities to an office or agency where
Securities may be presented for payment (the "Paying Agent") to collect
principal payments. The Securities will be payable as to principal and interest
at the office or agency of the Company maintained for such purpose within the
City and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the Security register of Holders; provided that the Company will be required
to make, by wire transfer of
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<PAGE> 85
immediately available funds to the accounts specified by a Holder of at least $5
million aggregate principal amount of Securities, all payments of principal of,
premium, if any, and interest with respect to such Holder's Securities if such
Holder has provided wire transfer instructions to the Company.
4. Paying Agent and Registrar
Initially, Bank One Trust Company, N.A., a national banking
association ("Trustee"), will act as Paying Agent and the office or agency where
Securities may be presented for registration or transfer or for exchange (the
"Registrar").
5. Indenture
The Company issued the Securities under an Indenture dated as
of October 4, 2000 (the "Indenture"), among the Company, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of the Indenture and,
to the extent required by any amendment to the Trust Indenture Act of 1939 after
such date, as amended from time to time (the "Act"). Terms defined in the
Indenture and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and the Act for a statement of those terms.
The Securities are general unsecured obligations of the
Company limited to $275,000,000 aggregate principal amount of which $175,000,000
aggregate principal amount will be initially issued on the Closing Date (subject
to Section 2.07 of the Indenture). Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $100,000,000 aggregate
principal amount of Additional Notes. This Security is one of the Initial Notes
referred to in the Indenture. The Securities include the Initial Notes, the
Additional Notes and any notes issued in exchange for the Initial Notes pursuant
to the Registration Rights Agreement (the "Exchange Notes"). The Initial Notes,
the Additional Notes and the Exchange Notes are treated as a single class of
securities under the Indenture. The Indenture imposes certain limitations on the
Company and the Restricted Subsidiaries, including the Incurrence of additional
Indebtedness, payment of dividends or other distributions with respect to
Capital Stock of the Company, sale of assets of the Company or its Restricted
Subsidiaries, and restrictions on the ability of any Restricted Subsidiary to
pay dividends or make any other distributions in respect of its Capital Stock.
In addition, the Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Guarantors to Incur Indebtedness which
is senior to or ranks pari passu with the Securities or the Guarantees, as the
case may be, create certain Liens, or enter into certain mergers and
consolidations.
The payment of principal and interest on the Securities is
unconditionally guaranteed on a senior subordinated and unsecured basis by the
Guarantors.
A-7
<PAGE> 86
6. Optional Redemption
Except as set forth in paragraphs 7 and 8, the Securities may
not be redeemed prior to October 1, 2005. On and after that date, the Company
may redeem the Securities in whole at any time or in part from time to time at
the following redemption prices (expressed in percentages of principal amount),
plus accrued interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant Record Date to receive interest due on the
related interest payment date) if redeemed during the 12-month period beginning
October 1, of the years below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2005 106.188%
2006 104.125%
2007 102.063%
2008 and thereafter 100.000%
</TABLE>
At any time, or from time to time, on or prior to October 1,
2003, the Company may, at its option, use all or any portion of the net cash
proceeds of one or more Public Equity Offerings (as defined below) to redeem up
to 35% of the aggregate principal amount of the Securities issued at a
redemption price equal to 112.375% of the principal amount thereof plus accrued
and unpaid interest thereon, if any, to the date of redemption; provided that at
least 65% of the aggregate principal amount of Securities initially issued
remains outstanding immediately after any such redemption. In order to effect
the foregoing redemption with the proceeds of any Public Equity Offering, the
Company shall make such redemption not more than 180 days after the consummation
of any such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of the Company's Capital Stock (other than
Disqualified Stock) pursuant to a registration statement filed with the
Commission in accordance with the Securities Act or a firm commitment private
placement of Capital Stock (other than Disqualified Stock) pursuant to an
agreement that requires the registration of the resale of such Capital Stock (or
Capital Stock issued upon conversion thereof) contemporaneously with the
issuance thereof or as soon as practical thereafter.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee (subject to DTC
procedures) on a pro rata basis, by lot or by such other method as the Trustee,
in its sole discretion, shall deem to be fair and appropriate (and which
complies with applicable legal and securities exchange requirements), although
no Security of $1,000 in original principal amount or less will be redeemed in
part. In the case of any partial redemption made with the proceeds of a Public
Equity Offering, selection of the Securities for redemption will be made by the
Trustee on a pro rata basis or on as nearly a pro rata basis as is practicable
(subject to DTC procedures), unless such method is otherwise prohibited. If any
Security is to be redeemed in part only, the notice of redemption relating to
such Security shall state the portion of the principal amount thereof to be
redeemed. Subject to DTC procedures, a new Security in principal amount equal to
the unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Security.
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<PAGE> 87
7. Notice of Redemption
A notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000. If
money sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
8. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions, to cause the Company to repurchase all
or any part of the Securities of such Holder at a repurchase price equal to 101%
of the principal amount of the Securities to be repurchased plus accrued
interest to the date of repurchase (subject to the right of holders of record on
the relevant Record Date to receive interest due on the related interest payment
date) as provided in, and subject to the terms of, the Indenture.
9. Subordination
The Securities are subordinated to Senior Indebtedness, as
defined in the Indenture, and the Guarantees are subordinated to Senior
Indebtedness of the Guarantors, as defined in the Indenture. To the extent
provided in the Indenture, Senior Indebtedness or Senior Indebtedness of the
Guarantors must be paid before the Securities may be paid. The Company and the
Guarantors agree, and each Holder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give effect to such provisions and appoints the Trustee as attorney-in-fact
for such purpose.
10. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
11. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
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<PAGE> 88
12. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
13. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee payment of principal and interest on
the Securities to redemption or maturity, as the case may be.
14. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any default or noncompliance with any provision may be waived with the
written consent of the Holders of a majority in principal amount outstanding of
the Securities. Subject to certain exceptions set forth in the Indenture,
without the consent of any Holder, the Company and the Trustee may amend the
Indenture or the Securities to cure any ambiguity, omission, defect or
inconsistency, or to comply with Article 5 of the Indenture, or to provide for
uncertificated Securities in addition to or in place of certificated Securities,
or to add guarantees with respect to the Securities or to secure the Securities,
or to add additional covenants or surrender rights and powers conferred on the
Company, or to comply with any request of the Commission in connection with
qualifying the Indenture under the Act, or to make certain changes in the
subordination provisions, or to make any change that does not adversely affect
the rights of any Holder.
15. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption, upon declaration of
acceleration or otherwise, or failure by the Company and the Guarantors to
redeem or purchase Securities when required; (iii) failure by the Company or the
Guarantors to comply with the provisions of Section 5.01 of the Indenture; (iv)
failure by the Company, the Parent Guarantor or any Restricted Subsidiary to
comply with certain other sections of the Indenture; (v) failure by the Company
or any Subsidiary Guarantor to comply with other agreements in the Indenture or
the Securities, in certain cases subject to notice and lapse of time; (vi)
certain accelerations (including failure to pay within any grace period after
final maturity) of other Indebtedness of the Company if the amount accelerated
(or so unpaid) exceeds $10 million and the default continues for 10 days; (vii)
certain events of bankruptcy or insolvency with respect to the Company, any
Guarantor or any Foreign Significant Subsidiary; (viii) certain judgments or
decrees for the payment of money in excess of $10 million; and (ix) the Parent
Guarantee or any Subsidiary Guarantee is held to be unenforceable or is invalid
or ceases to be in full force and effect. If an Event of Default (other than
certain Events of Default specified in (vii) above) occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the Securities
may, by notice to the Company and, in the case of such Holders, to the Trustee,
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<PAGE> 89
declare the principal amount of and accrued interest on the Securities to be due
and payable immediately upon the occurrence of such Event of Default.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
the interest of the Holders.
16. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company, any Guarantor or the Trustee shall not have any liability for any
obligations of the Company, any Guarantor or the Trustee under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
18. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
19. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
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<PAGE> 90
THE COMPANY WILL FURNISH TO ANY HOLDER, UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER, A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: UNITED STATES CAN
COMPANY, 900 COMMERCE DRIVE, OAK BROOK, ILLINOIS 60521, ATTENTION: CHIEF
FINANCIAL OFFICER.
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<PAGE> 91
[FORM OF NOTATION ON INITIAL NOTE RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
U.S. CAN CORPORATION (the "Parent Guarantor") and MAY
VERPACKUNGEN HOLDING INC. (together with any other Subsidiary Guarantor, the
"Subsidiary Guarantors") have unconditionally guaranteed on a senior
subordinated basis (such guarantee by each Guarantor being referred to herein as
the "Guarantee") (i) the due and punctual payment of the principal of and
interest on the Securities, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal and interest,
if any, on the Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms set forth in the Indenture and (ii) in
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth and
are expressly subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness of the Guarantors to the extent and in the
manner provided in Article 11 of the Indenture, and reference is hereby made to
such Indenture for the precise terms of the Guarantee therein made.
No director, officer, employee or stockholder, as such, of any
of the Guarantors shall have any liability under the Guarantee of such Guarantor
by reason of such person's status as director, officer, employee or stockholder.
Each Holder of a Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized signatories.
U.S. CAN CORPORATION
By:
--------------------------
Name:
Title:
MAY VERPACKUNGEN HOLDING INC.
By:
--------------------------
Name:
Title:
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<PAGE> 92
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: __________ Your Signature:
Sign exactly as your name appears on the other side of this Security.
Signature Guaranty:
(Signature must be guaranteed by a member firm of the
New York Stock Exchange or a commercial bank or trust
company)
In connection with any transfer of any of the Securities
evidenced by this certificate occurring prior to the date that is two years
after the later of the date of original issuance of such Securities and the last
date, if any, on which such Securities were owned by the Company or any
Affiliate of the Company, the undersigned confirms that such Securities are
being transferred:
(CHECK ONE BOX BELOW)
(1) [ ] to the Company or a subsidiary thereof
(2) [ ] to an institutional "accredited investor" (as
defined in rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933, as amended) that has
furnished to the Holder a signed letter
containing certain representations and agreements
(the form of which letter can be obtained from
the Trustee)
(3) [ ] pursuant to effective registration statement
under the Securities Act of 1933, as amended
(4) [ ] inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A
under the Securities Act of 1933, as amended)
that
A-14
<PAGE> 93
purchases for its own account or for the account
of a qualified institutional buyer to whom notice
is given that such transfer is being made in
reliance on Rule 144A, in each case, pursuant to
and in compliance with Rule 144A under the
Securities Act of 1933, as amended
(5) [ ] outside the United States in an offshore
transaction to a "foreign person" in accordance
with Rule 904 of Regulation S under the
Securities Act of 1933, as amended
(6) [ ] pursuant to the exemption from registration
provided by Rule 144 under the Securities
Act of 1933, as amended
(7) [ ] pursuant to another available exemption from the
registration requirements of the Securities Act
of 1933, as amended
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof; provided, however, that if box
(2), (5), (6) or (7) is checked, the Trustee may require, prior to registering
any such transfer of the Securities such legal opinions, certifications and
other information as the Company has reasonably requested to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933, as
amended, such as the exemption provided by Rule 144 under such Securities Act of
1933, as amended.
Signature
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<PAGE> 94
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Date:
NOTICE: To be executed by
an executive officer
A-16
<PAGE> 95
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
<TABLE>
<CAPTION>
Principal Amount [at
Amount of decrease Amount of Increase Maturity] of this Signature of
in Principal Amount in Principal Amount Global Security authorized officer of
[at Maturity] of this [at Maturity] of this following such Trustee or Securities
Date of Exchange Global Security Global Security decrease or increase Custodian
---------------- --------------------- --------------------- -------------------- ----------------------
<S> <C> <C> <C> <C>
</TABLE>
A-17
<PAGE> 96
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount: $_________________
Date:
(Sign exactly as your name appears
on the other side of the Security)
Signature Guaranty:
(Signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or
trust company)
A-18
<PAGE> 97
EXHIBIT B
[FORM OF FACE OF EXCHANGE NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
UNITED STATES CAN COMPANY
Series B 12 3/8% Senior Subordinated Notes Due 2010
No. U.S. $175,000,000
CUSIP No.:
U.S. Can Corporation, a Delaware corporation, promises to pay
to CEDE & Co., or registered assigns, the principal sum of One Hundred
Seventy-Five Million Dollars ($175,000,000) on October 1, 2010.
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
B-1
<PAGE> 98
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: UNITED STATES CAN COMPANY
By:
--------------------------
President
By:
--------------------------
Secretary
B-2
<PAGE> 99
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BANK ONE TRUST COMPANY, N.A., as Trustee,
certifies that this is one of the Securities
referred to in the Indenture.
[seal]
By:
--------------------------
Authorized Signatory
B-3
<PAGE> 100
[FORM OF REVERSE SIDE OF EXCHANGE NOTE]
UNITED STATES CAN COMPANY
Series B 12 3/8 Senior Subordinated Notes Due 2010
1. Interest
United States Can Company, a Delaware corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Security at the rate per annum shown above. The Company
will pay interest semiannually on April 1 and October 1 of each year. Interest
on the Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the Issue Date. Interest will
be computed on the basis of a 360-day year of 12 30-day months. The Company
shall pay interest on overdue principal at the rate borne by the Securities plus
1% per annum, and it shall pay interest on overdue installments of interest at
the same rate to the extent lawful.
2. Method of Payment
The Company, in accordance with Section 4.01 of the Indenture,
will pay interest on the Securities (except defaulted interest) to the persons
who are registered holders of Securities ("Holder" or "Holders") at the close of
business on the Record Date next preceding the interest payment date even if
Securities are cancelled after the Record Date and on or before the interest
payment date. Holders must surrender Securities to an office or agency where
Securities may be presented for payment (the "Paying Agent") to collect
principal payments. The Securities will be payable as to principal and interest
at the office or agency of the Company maintained for such purpose within the
City and State of New York, or, at the option of the Company, payment of
interest may be made by check mailed to the Holders at their addresses set forth
in the Securities register of Holders; provided that the Company will be
required to make, by wire transfer of immediately available funds to the
accounts specified by a Holder of at least $5 million aggregate principal amount
of Securities, all payments of principal of, premium, if any, and interest with
respect to such Holder's Securities if such Holder has provided wire transfer
instructions to the Company.
3. Paying Agent and Registrar
Initially, Bank One Trust Company, N.A., a national banking
association ("Trustee"), will act as Paying Agent and the office or agency where
Securities may be presented for registration or transfer or for exchange (the
"Registrar").
4. Indenture
The Company issued the Securities under an Indenture dated as
of October 4, 2000 (the "Indenture"), among the Company, the Guarantors and the
Trustee. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of
B-4
<PAGE> 101
the Indenture and, to the extent required by any amendment to the Trust
Indenture Act of 1939 after such date, as amended from time to time (the "Act").
Terms defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Holders are referred to the Indenture and the Act for a statement of those
terms.
The Securities are general unsecured obligations of the
Company limited to $275,000,000 aggregate principal amount of which $175,000,000
aggregate principal amount will be initially issued on the Closing Date (subject
to Section 2.07 of the Indenture). Subject to the conditions set forth in the
Indenture, the Company may issue up to an additional $100,000,000 aggregate
principal amount of Additional Notes. This Security is one of the Series B
12 3/8% Senior Subordinated Notes due 2010 (the "Exchange Notes") referred to in
the Indenture. The Securities include the 12 3/8% Senior Subordinated Notes due
2010 originally issued under the Indenture (the "Initial Notes"), the Additional
Notes and any Exchange Notes issued in exchange for the Initial Notes. The
Initial Notes, the Additional Notes and the Exchange Notes are treated as a
single class of securities under the Indenture. The Indenture imposes certain
limitations on the Company and the Restricted Subsidiaries, including the
Incurrence of additional Indebtedness, payment of dividends or other
distributions with respect to Capital Stock of the Company, sale of assets of
the Company or its Restricted Subsidiaries, and restrictions on the ability of
any Restricted Subsidiary to pay dividends or make any other distributions in
respect of its Capital Stock. In addition, the Indenture contains certain
covenants that, among other things, limit the ability of the Company and the
Guarantors to Incur Indebtedness which is senior to or ranks pari passu with the
Securities or the Guarantees, as the case may be, create certain Liens, or enter
into certain mergers and consolidations.
The payment of principal and interest on the Securities is
unconditionally guaranteed on a senior subordinated and unsecured basis by the
Guarantors.
5. Optional Redemption
Except as set forth in paragraphs 6 and 7, the Securities may
not be redeemed prior to October 1, 2005. On and after that date, the Company
may redeem the Securities in whole at any time or in part from time to time at
the following redemption prices (expressed in percentages of principal amount),
plus accrued interest, if any, to the redemption date (subject to the right of
Holders of record on the relevant Record Date to receive interest due on the
related interest payment date), if redeemed during the 12-month period beginning
October 1, of the years below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
2005 106.188%
2006 104.125%
2007 102.063%
2008 and thereafter 100.000%
</TABLE>
At any time, or from time to time, on or prior to October 1,
2003, the Company, at
B-5
<PAGE> 102
its option, may use all or any portion of the net cash proceeds of one or more
Public Equity Offerings (as defined below) to redeem up to 35% of the aggregate
principal amount of the Securities issued at a redemption price equal to
112.375% of the principal amount thereof plus accrued and unpaid interest, if
any, to the date of redemption; provided that at least 65% of the aggregate
principal amount of Securities initially issued remains outstanding immediately
after any such redemption. In order to effect the foregoing redemption with the
proceeds of any Public Equity Offering, the Company shall make such redemption
not more than 180 days after the consummation of any such Public Equity
Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of the Company's Capital Stock (other than
Disqualified Stock) pursuant to a registration statement filed with the
Commission in accordance with the Securities Act or a firm commitment private
placement of Capital Stock (other than Disqualified Stock) pursuant to an
agreement that requires the registration of the resale of such Capital Stock (or
Capital Stock issued upon conversion thereof) contemporaneously with the
issuance thereof or as soon as practical thereafter.
In the case of any partial redemption, selection of the
Securities for redemption will be made by the Trustee (subject to DTC
procedures) on a pro rata basis, by lot or by such other method as the Trustee,
in its sole discretion, shall deem to be fair and appropriate (and which
complies with applicable legal and securities exchange requirements), although
no Security of $1,000 in original principal amount or less will be redeemed in
part. In the case of any partial redemption made with the proceeds of a Public
Equity Offering, selection of the Securities for redemption will be made by the
Trustee on a pro rata basis or on as nearly a pro rata basis as is practicable
(subject to DTC procedures), unless such method is otherwise prohibited. If any
Security is to be redeemed in part only, the notice of redemption relating to
such Security shall state the portion of the principal amount thereof to be
redeemed. Subject to DTC procedures, a new Security in principal amount equal to
the unredeemed portion thereof will be issued in the name of the Holder thereof
upon cancellation of the original Security.
6. Notice of Redemption
A notice of redemption will be mailed at least 30 days but not
more than 60 days before the redemption date to each Holder of Securities to be
redeemed at such Holder's registered address. Securities in denominations larger
than $1,000 may be redeemed in part but only in whole multiples of $1,000. If
money sufficient to pay the redemption price of and accrued interest on all
Securities (or portions thereof) to be redeemed on the redemption date is
deposited with the Paying Agent on or before the redemption date and certain
other conditions are satisfied, on and after such date interest ceases to accrue
on such Securities (or such portions thereof) called for redemption.
7. Put Provisions
Upon a Change of Control, any Holder of Securities will have
the right, subject to certain conditions, to cause the Company to repurchase all
or any part of the Securities of such Holder at a repurchase price equal to 101%
of the principal amount of the Securities to be
B-6
<PAGE> 103
repurchased plus accrued interest to the date of repurchase (subject to the
right of holders of record on the relevant Record Date to receive interest due
on the related interest payment date) as provided in, and subject to the terms
of, the Indenture.
8. Subordination
The Securities are subordinated to Senior Indebtedness, as
defined in the Indenture, and the Guarantees are subordinated to Senior
Indebtedness of the Guarantors, as defined in the Indenture. To the extent
provided in the Indenture, Senior Indebtedness or Senior Indebtedness of
Subsidiary Guarantors must be paid before the Securities may be paid. The
Company and the Guarantors agree, and each Holder by accepting a Security
agrees, to the subordination provisions contained in the Indenture and
authorizes the Trustee to give effect to such provisions and appoints the
Trustee as attorney-in-fact for such purpose.
9. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of $1,000 and whole multiples of $1,000. A Holder may transfer or
exchange Securities in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements or transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities for a period of 15 days before a selection of Securities to be
redeemed or 15 days before an interest payment date.
10. Persons Deemed Owners
The registered Holder of this Security may be treated as the
owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent shall pay the money back to
the Company at its request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
12. Discharge and Defeasance
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities and the Indenture
if the Company deposits with the Trustee payment of principal and interest on
the Securities to redemption or maturity, as the case may be.
13. Amendment, Waiver
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in
B-7
<PAGE> 104
principal amount outstanding of the Securities and (ii) any default or
noncompliance with any provision may be waived with the written consent of the
Holders of a majority in principal amount outstanding of the Securities. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Holder, the Company and the Trustee may amend the Indenture or the Securities to
cure any ambiguity, omission, defect or inconsistency, or to comply with Article
5 of the Indenture, or to provide for uncertificated Securities in addition to
or in place of certificated Securities, or to add guarantees with respect to the
Securities or to secure the Securities, or to add additional covenants or
surrender rights and powers conferred on the Company, or to comply with any
request of the Commission in connection with qualifying the Indenture under the
Act, or to make certain changes in the subordination provisions, or to make any
change that does not adversely affect the rights of any Holder.
14. Defaults and Remedies
Under the Indenture, Events of Default include (i) default for
30 days in payment of interest on the Securities; (ii) default in payment of
principal on the Securities at maturity, upon redemption, upon declaration of
acceleration or otherwise, or failure by the Company and the Guarantors to
redeem or purchase Securities when required; (iii) failure by the Company or the
Guarantors to comply with the provisions of Section 5.01 of the Indenture; (iv)
failure by the Company, the Parent Guarantor or any Restricted Subsidiary to
comply with certain other sections of the Indenture; (v) failure by the Company,
the Parent Guarantor or any Restricted Subsidiary to comply with other
agreements in the Indenture or the Securities, in certain cases subject to
notice and lapse of time; (vi) certain accelerations (including failure to pay
within any grace period after final maturity) of other Indebtedness of the
Company if the amount accelerated (or so unpaid) exceeds $10 million and
continue for 10 days; (vii) certain events of bankruptcy or insolvency with
respect to the Company, any Guarantor or any Foreign Significant Subsidiary;
(viii) certain judgments or decrees for the payment of money in excess of $10
million; and (ix) the Parent Guarantee or any Subsidiary Guarantee is held
unenforceable or invalid or ceasing to be in full force and effect. If an Event
of Default (other than an Event of Default specified in (vii) above) occurs and
is continuing, the Trustee or the Holders of at least 25% in principal amount of
the Securities may, by notice to the Company and, in the case of such Holders,
to the Trustee, declare the principal amount of and accrued interest on the
Securities to be due and payable immediately upon the occurrence of such Events
of Default.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing Default (except a Default in
payment of principal or interest) if it determines that withholding notice is in
the interest of the Holders.
15. Trustee Dealings with the Company
Subject to certain limitations imposed by the Act, the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with
B-8
<PAGE> 105
the Company or its Affiliates with the same rights it would have if it were not
Trustee.
16. No Recourse Against Others
A director, officer, employee or stockholder, as such, of the
Company, any Guarantor or the Trustee shall not have any liability for any
obligations of the Company, any Guarantor or the Trustee under the Securities or
the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
17. Authentication
This Security shall not be valid until an authorized signatory
of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
18. Abbreviations
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures the Company has caused CUSIP numbers
to be printed on the Securities and has directed the Trustee to use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Securities
or as contained in any notice of redemption and reliance may be placed only on
the other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER, UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE HOLDER, A COPY OF THE INDENTURE WHICH HAS IN IT THE
TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: UNITED STATES CAN
COMPANY, 900 COMMERCE DRIVE, OAK BROOK, ILLINOIS 60521, ATTENTION: CHIEF
FINANCIAL OFFICER.
B-9
<PAGE> 106
[FORM OF NOTATION ON EXCHANGE NOTE RELATING TO GUARANTEE]
SENIOR SUBORDINATED GUARANTEE
U.S. CAN CORPORATION (the "Parent Guarantor") and MAY
VERPACKUNGEN HOLDING INC. (together with any other Subsidiary Guarantor, the
"Subsidiary Guarantors") have unconditionally guaranteed on a senior
subordinated basis (such guaranty by each Guarantor being referred to herein as
the "Guarantee") (i) the due and punctual payment of the principal of and
interest on the Securities, whether at maturity, by acceleration or otherwise,
the due and punctual payment of interest on the overdue principal and interest,
if any, on the Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the Holders or the
Trustee all in accordance with the terms set forth in the Indenture and (ii) in
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth and
are expressly subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness of Guarantors to the extent and in the manner
provided in Article 11 of the Indenture, and reference is hereby made to such
Indenture for the precise terms of the Guarantee therein made.
No director, officer, employee or stockholder, as such, of any
of the Guarantors shall have any liability under the Guarantee of such Guarantor
by reason of such person's status as director, officer, employee or stockholder.
Each Holder of a Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Guarantee.
The Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Securities upon which the
Guarantee is noted shall have been executed by the Trustee under the Indenture
by the manual signature of one of its authorized signatories.
U.S. CAN CORPORATION
By:
--------------------------
Name:
Title:
MAY VERPACKUNGEN HOLDING INC.
By:
--------------------------
Name:
Title:
B-10
<PAGE> 107
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: __________ Your Signature:
Sign exactly as your name appears on the other side of this Security.
Signature Guaranty:
(Signature must be guaranteed by a member firm of the
New York Stock Exchange or a commercial bank or trust
company)
B-11
<PAGE> 108
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been
made:
<TABLE>
<CAPTION>
Amount of decrease Amount of Increase Principal Amount [at Signature of
in Principal Amount in Principal Amount Maturity] of this Global authorized officer of
[at Maturity] of this [at Maturity] of this Security following such Trustee or Securities
Date of Exchange Global Security Global Security decrease or increase Custodian
---------------- --------------------- --------------------- ------------------------ ---------------------
<S> <C> <C> <C> <C>
</TABLE>
B-12
<PAGE> 109
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.06 or 4.08 of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Section 4.06 or 4.08 of the Indenture,
state the amount: $_________________
Date:
(Sign exactly as your name appears on the
other side of the Security)
Signature Guaranty:
(Signature must be guaranteed by a member firm of
the New York Stock Exchange or a commercial bank or
trust company)
B-13
