FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Date of Report (Date of Earliest Event Reported) June 17, 1997
CURRENT REPORT PURSUANT TO SECTION 13 or 15 (d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission file number: 1-13418
FALCON BUILDING PRODUCTS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 36-3931893
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
TWO NORTH RIVERSIDE PLAZA
CHICAGO, ILLINOIS 60606
(Address of Principal Executive Office)
(312) 906-9700
(Registrant's telephone number, including area code)
NOT APPLICABLE
(FORMER NAME, FORMER ADDRESS AND FORMER FISCAL YEAR, IF CHANGED SINCE LAST
REPORT)
<PAGE>
ITEM 1. CHANGES IN CONTROL OF REGISTRANT
On June 17, 1997 Falcon Building Products, Inc. ("Falcon") and Investcorp,
the international investment group, announced the closing of the merger and
recapitalization transaction pursuant to an agreement signed and announced on
March 20, 1997. As a result of the transaction, and pursuant to the merger
agreement, Investcorp and other international investors will own approximately
88% of the equity of Falcon. The remaining 12% will be owned by existing
shareholders, including management. As a result of the merger, Falcons shares
will be de-listed from the New York Stock Exchange.
The merger was approved by a majority of Falcon's shareholders at a
special meeting held on June 17, 1997. At the announced price of $17.75,
the merger, including the financings described below, is valued at
approximately $585 million.
At closing, the transaction was financed by $175 million of proceeds from
the term loan under the Senior Credit Facilities lead-managed by affiliates of
The Chase Manhattan Bank and Bankers Trust Company, $145 million of 9 1/2%
Senior Subordinated Notes ("Notes"), $102 million in gross proceeds of
10 1/2% Senior Subordinated Discount Notes ("Discount Notes") and
approximately $135 million of equity contributed by affiliates of Investcorp
and other international investors. The Notes and Discount Notes were
privately placed by Smith Barney Inc., BT Securities Corporation, Chase
Securities Inc. and Merrill Lynch & Co. The Credit Agreement for the Senior
Credit Facility and the Indentures for the Notes and Discount Notes are
included as exhibits to this Form 8-K. In addition, Falcon has maintained
and increased its Asset Securitization Facility to $100 million which was
lead-managed by PNC Bank, N.A.
<PAGE>
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
4.1 Indenture, including therein the form of Note between
the Registrant and Harris Trust and Savings Bank, as
Trustee, providing for 9 1/2% Senior Subordinated Notes
due 2007.
4.2 Indenture, including therein the form of Note between
the Registrant and Harris Trust and Savings Bank, as
Trustee, providing for 10 1/2% Senior Subordinated
Discount Notes due 2007.
10.1 Credit Agreement dated as of June 17, 1997 among Falcon
Building Products, Inc. and Chase Securities, Inc. as
Arranger, Bankers Trust Company as Documentation Agent,
The Chase Manhattan Bank as Administrative Agent and
the lenders named therein.
99.1 Press release dated June 17, 1997 announcing the closing
of the merger and recapitalization transaction.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FALCON BUILDING PRODUCTS, INC.
By: /s/ Gus J. Athas
----------------
Gus J. Athas
Executive Vice President
and Secretary
Dated: June 30, 1997
EXHIBIT 99.1
INVESTCORP AND FALCON BUILDING PRODUCTS INC. ANNOUNCE
COMPLETION OF MERGER AND RECAPITALIZATION
NEW YORK, New York, June 17, 1997 -- Falcon Building
Products, Inc. (NYSE: FB) and Investcorp, the international
investment group, jointly announced today the closing of the
merger and recapitalization transaction pursuant to the
definitive agreement signed and announced on March 20, 1997.
As a result of the transaction, and pursuant to the merger
agreement, Investcorp and certain international investors
will own approximately 88% of the equity of Falcon
subsequent to the closing. The remaining 12% will be owned
by existing shareholders including management. It is
expected that as soon as practicable, Falcon will de-list
its shares from the NYSE.
The merger was approved by a majority of Falcon's
shareholders at a special meeting held the morning of June
17. At the announced price per share of $17.75, the merger
is valued at approximately $585 million.
At closing, the transaction was financed by $175
million of Senior Credit Facilities lead-managed by
affiliates of The Chase Manhattan Bank and Bankers Trust
Company, $145 million of 91/2% Senior Subordinated Debt,
$102.0 million (in gross proceeds) of 101/2% Senior Discount
Notes and approximately $135 million of equity contributed
by affiliates of Investcorp and the other international
investors. The Subordinated Notes and Discount Notes were
privately placed by Smith Barney Inc., BT Securities
Corporation, Chase Securities Inc. and Merrill Lynch & Co.
In addition, Falcon has maintained and increased its Asset
Securitization Facility which was lead-managed by PNC Bank,
N.A. In connection with the transaction, all executive
officers of Falcon, including William K. Hall, its Chief
Executive Officer, have agreed to be employed by Falcon
after the merger. Mr. Hall will be Chairman, President and
Chief Executive Officer of Falcon after completion of the
merger.
Christopher J. Stadler, a member of Investcorp's
Management Committee, said, "Falcon is an outstanding, well-
managed company. This acquisition is consistent with our
philosophy of buying companies with leading market shares
and trade names. As is our practice, we will work in
partnership with management to continue Falcon's current
growth initiatives and to provide whatever additional
resources are necessary to enable the Company to achieve its
potential. Investcorp worked closely with the senior
management team in putting in place a capital structure that
is flexible and relatively conservative, thereby providing
the Company with the necessary funds to execute on its
strategic plan. Finally, we are very pleased that Bill Hall
and the senior management team will be significant equity
investors in the Company after the completion of the
merger."
Headquartered in Chicago, Illinois, Falcon Building
Products, with 1996 annual sales of $633 million, is a
leading North American manufacturer and supplier of highly
engineered building products serving residential, light
commercial and consumer markets. The Falcon businesses
include Hart & Cooley, a manufacturer of air distribution
products, Mansfield Plumbing Products, a manufacturer of
china, steel and acrylic plumbing products, and DeVilbiss
Air Power, a manufacturer of air compressors, pressure
washers, portable generators and accessories/tools.
Investcorp was established in 1982. It acts as a
principal and an intermediary in international investment
transactions. To date, it has completed over 60
transactions with an acquisition value of approximately $9
billion. Investcorp and its clients currently own 15
corporate investments in North America and Europe, including
Saks Fifth Avenue, Star Markets, Simmons Company, CSK Auto,
William Carter Company, Mondi, Ebel, Welcome Break and Helly
Hansen. Previous investments include Tiffany, Gucci, Circle
K, Prime Service and Thorn Lighting.
Exhibit 4.1
FALCON BUILDING PRODUCTS, INC.
SERIES A AND SERIES B
9 1/2% SENIOR SUBORDINATED NOTES DUE 2007
INDENTURE
Dated as of June 17, 1997
HARRIS TRUST AND SAVINGS BANK
Trustee
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions
Section 1.02 Other Definitions
Section 1.03 Incorporation by Reference of
Trust Indenture Act
Section 1.04 Rules of Construction
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating
Section 2.02 Execution and Authentication
Section 2.03 Registrar and Paying Agent
Section 2.04 Paying Agent to Hold Money in Trust
Section 2.05 Holder Lists
Section 2.06 Transfer and Exchange
Section 2.07 Replacement Notes
Section 2.08 Outstanding Notes
Section 2.09 Treasury Notes
Section 2.10 Temporary Notes
Section 2.11 Cancellation
Section 2.12 Defaulted Interest
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee
Section 3.02 Selection of Notes to Be Redeemed
Section 3.03 Notice of Redemption
Section 3.04 Effect of Notice of Redemption
Section 3.05 Deposit of Redemption Price
Section 3.06 Notes Redeemed in Part
Section 3.07 Optional Redemption
Section 3.08 Mandatory Redemption
Section 3.09 Repurchase Offers
Section 3.10 Subsidiary Distribution Offers
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes
Section 4.02 Maintenance of Office or Agency
Section 4.03 Reports
Section 4.04 Compliance Certificate
Section 4.05 Taxes
Section 4.06 Stay, Extension and Usury Laws
Section 4.07 Restricted Payments
Section 4.08 Dividend and Other Payment Restrictions
Affecting Subsidiaries
Section 4.09 Incurrence of Indebtedness and Issuance of
Preferred Stock
Section 4.10 Asset Sales
Section 4.11 Transactions with Affiliates
Section 4.12 Liens
Section 4.13 Business Activities
Section 4.14 Corporate Existence
Section 4.15 Offer to Repurchase Upon Change of Control
Section 4.16 No Senior Subordinated Debt
Section 4.17 Subsidiary Guarantees
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of all or
Substantially all Assets
Section 5.02 Successor Corporation Substituted
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default
Section 6.02 Acceleration
Section 6.03 Other Remedies
Section 6.04 Waiver of Past Defaults
Section 6.05 Control by Majority
Section 6.06 Limitation on Suits
Section 6.07 Rights of Holders of Notes to Receive Payment
Section 6.08 Collection Suit by Trustee
Section 6.09 Trustee May File Proofs of Claim
Section 6.10 Priorities
Section 6.11 Undertaking for Costs
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee
Section 7.02 Rights of Trustee
Section 7.03 Individual Rights of Trustee
Section 7.04 Trustee's Disclaimer
Section 7.05 Notice of Defaults
Section 7.06 Reports by Trustee to Holders of the Notes
Section 7.07 Compensation and Indemnity
Section 7.08 Replacement of Trustee
Section 7.09 Successor Trustee by Merger, etc.
Section 7.10 Eligibility; Disqualification
Section 7.11 Preferential Collection of Claims Against
Company
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance
Section 8.02 Legal Defeasance and Discharge
Section 8.03 Covenant Defeasance
Section 8.04 Conditions to Legal or Covenant Defeasance
Section 8.05 Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous
Provisions
Section 8.06 Repayment to Company
Section 8.07 Reinstatement
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes
Section 9.02 With Consent of Holders of Notes
Section 9.03 Compliance with Trust Indenture Act
Section 9.04 Revocation and Effect of Consents
Section 9.05 Notation on or Exchange of Notes
Section 9.06 Trustee to Sign Amendments, etc.
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate
Section 10.02 Liquidation; Dissolution; Bankruptcy
Section 10.03 Default on Designated Senior Debt
Section 10.04 Acceleration of Notes
Section 10.05 When Distribution Must Be Paid Over
Section 10.06 Notice by Company
Section 10.07 Subrogation
Section 10.08 Relative Rights
Section 10.09 Subordination May Not Be Impaired by Company
Section 10.10 Distribution or Notice to Representative
Section 10.11 Rights of Trustee and Paying Agent
Section 10.12 Authorization to Effect Subordination
Section 10.13 Amendments
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01 Subsidiary Guarantees
Section 11.02 Execution and Delivery of Subsidiary
Guarantee
Section 11.03 Guarantors May Consolidate, Etc., on
Certain Terms
Section 11.04 Releases Following Sale of Assets
Section 11.05 "Trustee" to Include Paying Agent
Section 11.06 Additional Guarantors
Section 11.07 Subordination of Subsidiary Guarantee
Section 11.08 Liquidation; Dissolution; Bankruptcy
Section 11.09 Default on Designated Senior Debt
Section 11.10 Acceleration of Notes
Section 11.11 When Distribution Must Be Paid Over
Section 11.12 Notice by a Guarantor
Section 11.13 Subrogation
Section 11.14 Relative Rights
Section 11.15 Subordination May Not Be Impaired by
Guarantor
Section 11.16 Distribution or Notice to Representative
Section 11.17 Rights of Trustee and Paying Agent
Section 11.18 Authorization to Effect Subordination
Section 11.19 Limitation of Guarantor's Liability
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls
Section 12.02 Notices
Section 12.03 Communication by Holders of Notes with Other
Holders of Notes
Section 12.04 Certificate and Opinion as to Conditions
Precedent
Section 12.05 Statements Required in Certificate or Opinion
Section 12.06 Rules by Trustee and Agents
Section 12.07 No Personal Liability of Directors, Officers,
Employees and Stockholders
Section 12.08 Governing Law
Section 12.09 No Adverse Interpretation of Other Agreements
Section 12.10 Successors
Section 12.11 Severability
Section 12.12 Counterpart Originals
Section 12.13 Table of Contents, Headings, etc.
EXHIBITS
Exhibit A FORM OF NOTE
<PAGE>
INDENTURE dated as of June 17, 1997 by and among (i)
Falcon Building Products Inc., a Delaware corporation (the
"Company"), (ii) Hart & Cooley, Inc., Mansfield Plumbing
Products, Inc., DeVilbiss Air Power Company, SWC Industries,
Inc. and Ex-Cell Manufacturing Company, Inc. (each a
"Guarantor" and together, the "Guarantors") and Harris Trust
and Savings Bank, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 91/2% Series A Senior
Subordinated Notes due 2007 (the "Series A Notes") and the
91/2% Series B Senior Subordinated Notes due 2007 (the
"Series B Notes" and, together with the Series A Notes, the
"Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Accreted Value" means, as of any date of
determination prior to June 15, 2002, the sum of (a) the
initial offering price of each Other Note and (b) the
portion of the excess of the principal amount of each Other
Note over such initial offering price which shall have been
accreted thereon through such date, such amount to be so
accreted on a daily basis at 101/2% per annum of the initial
offering price of the Other Notes, compounded semi-annually
on each June 15 and December 15 from the date of issuance of
the Other Notes through the date of determination; provided
that, on and after to June 15, 2002, the Accreted Value
shall be equal to the principal amount of the outstanding
Other Notes.
"Acquired Debt" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the
time such other Person is merged with or into or became a
Restricted Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person's merging
with or into or becoming a Restricted Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means (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 Person who is a
director or officer (a) of such Person, (b) of any
Subsidiary of such Person or (c) of any Person described in
clause (i) above. For purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities,
by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or
co-registrar.
"Applicable Premium" means, with respect to a Note at
any redemption date, the greater of (i) 1.0% of the
principal amount of such Note or (ii) the excess of (A) the
present value at such time of (1) the redemption price of
such Note at June 15, 2002 (such redemption price being set
forth in Section 3.07 hereof) plus (2) all required interest
payments due on such Notes through June 15, 2002 (excluding
accrued but unpaid interest), computed using a discount rate
equal to the Treasury Rate plus 75 basis points, over
(B) the principal amount of such Note, if greater.
"Asset Sale" means (i) the sale, lease, conveyance or
other disposition of any assets or rights (including,
without limitation, by way of a sale and leaseback)
(provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole
shall be governed by Section 5.01 hereof and not by Section
4.10 hereof, and (ii) the issue or sale by the Company or
any of the Restricted Subsidiaries of Equity Interests of
any of the Company's Subsidiaries (other than director's
qualifying shares), in the case of either clause (i) or
(ii), whether in a single transaction or a series of related
transactions (a) that have a fair market value in excess of
$1.0 million or (b) for net proceeds in excess of $1.0
million. Notwithstanding the foregoing, the following shall
not be Asset Sales: (i) a transfer of assets by the Company
to a Restricted Subsidiary or by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (ii) an
issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (iii) a
sale of Receivables to or by a Receivables Subsidiary, (iv)
a Restricted Payment or Permitted Investment that is
permitted by Section 4.07 hereof (including, without
limitation, any formation of or contribution of assets to a
joint venture), (v) leases or subleases, in the ordinary
course of business, to third parties of real property owned
in fee or leased by the Company or its Subsidiaries, (vi) a
disposition, in the ordinary course of business, of a lease
of real property, (vii) any disposition of property of the
Company or any of its Subsidiaries that, in the reasonable
judgment of the Company, has become uneconomic, obsolete or
worn out, (viii) any disposition of property or assets
(including, without limitation, accounts receivables and
inventory) in the ordinary course of business, (ix) the sale
of Cash Equivalents and Investment Grade Securities and
(x) any exchange of like property pursuant to Section 1031
of the Internal Revenue Code of 1986, as amended.
"Bankruptcy Code" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors.
"Board of Directors" means, with respect to any
Person, the Board of Directors of such Person, or any
authorized committee of the Board of Directors of such
Person.
"Business Day" means any day other than a Legal
Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at such
time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a
corporation, corporate stock, (ii) in the case of an
association or business entity, any and all shares,
interests, participations, rights or other equivalents
(however designated) of corporate stock, (iii) in the case
of a partnership or limited liability company, partnership
or membership interests (whether general or limited) and
(iv) any similar participation in profits and losses or
equity of a Person.
"Cash Equivalents" means (i) United States dollars,
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof having maturities of not more than
one year from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any commercial
bank or trust company having capital and surplus in excess
of $300 million, (iv) repurchase obligations with a term of
not more than seven days for underlying securities of the
types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications
specified in clause (iii) above, (v) commercial paper having
the highest rating obtainable from Moody's Investors
Service, Inc. ("Moody's") or Standard & Poor's Ratings
Services, a division of the McGraw-Hill Companies, Inc.
("S&P") and in each case maturing within one year after the
date of acquisition, (vi) investment funds investing 95% of
their assets in securities of the types described in clauses
(i)-(v) above, (vii) readily marketable direct obligations
issued by any state of the United States of America or any
political subdivision thereof having one of the two highest
rating categories obtainable from either Moody's or S&P and
(viii) Indebtedness with a rating of "A" or higher from S&P
or "A2" or higher from Moody's.
"Change of Control" means such time as (i) any
"person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Exchange Act), other than one or more
members of the Initial Control Group, is or becomes the
"beneficial owner" (as defined in Rule 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 40% of the total voting
power of the Voting Stock of the Company; provided that the
Initial Control Group "beneficially owns" (as defined in
Rule 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate a lesser percentage of the
total voting power of the Voting Stock of the Company than
such other person and does not have the right or ability by
voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of the
Company (for purposes of this definition, such other person
shall be deemed to beneficially own any Voting Stock of a
specified corporation held by a parent corporation, if such
other person "beneficially owns" (as defined in this
definition), directly or indirectly, more than 40% of the
voting power of the Voting Stock of such parent corporation
and the Initial Control Group "beneficially owns" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, in the aggregate, a lesser
percentage of the voting power of the Voting Stock of such
parent corporation and does not have the right or ability by
voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such
parent corporation) or (ii) following the first public
offering of Voting Stock of the Company after the date
hereof, any person (as defined above) other than the Initial
Control Group, (A) nominates one or more individuals for
election to the Board of Directors of the Company, (B)
solicits proxies, authorization or consents in connection
therewith and (C) such number of nominees elected to serve
on the board of directors in such election and all previous
elections after the date hereof represents a majority of the
Board of Directors of the Company following such election.
"Company" means Falcon Building Products, Inc., a
Delaware corporation.
"Consolidated Cash Flow" means, with respect to any
Person for any period, the Consolidated Net Income of such
Person for such period (A) plus, to the extent deducted in
computing such Consolidated Net Income, (i) Fixed Charges
and the amortization of debt issuance costs, commissions,
fees and expenses of such Person and its Restricted
Subsidiaries for such period, (ii) provision for taxes based
on income or profits (including franchise taxes) of such
Person and its Restricted Subsidiaries for such period,
(iii) depreciation and amortization expense, including, but
not limited to, amortization of inventory write-up under APB
16, amortization of intangibles (including, but not limited
to, goodwill and the costs of Interest Rate Agreements or
Currency Agreements, license agreements and non-competition
agreements) and organization costs, (iv) non-cash expenses
related to the amortization of management fees paid on or
prior to the date hereof, (v) expenses and charges related
to any equity offering or incurrence of Indebtedness
permitted to be incurred by this Indenture (including any
such expenses or charges relating to the Recapitalization),
(vi) the amount of any restructuring charge or reserve,
(vii) non-cash amortization of Capital Lease Obligations,
(viii) unrealized gains and losses from hedging and foreign
currency translations or transactions, (ix) expenses
consisting of internal software development costs that are
expensed during the period but could have been capitalized
in accordance with GAAP, (x) any write-downs, write-offs,
and other non-cash charges and expenses, and (xi) the amount
of any minority interest expense and (B) minus (i) non-cash
items increasing such Consolidated Net Income for such
period and (ii) any cash payment or expense for which a
reserve or charge of the kind described in the clause (vi)
and (x) above was taken in a prior period.
"Consolidated Net Income" means, with respect to any
Person for any period, the aggregate of the Net Income of
such Person and its Restricted Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of
the amount of dividends or distributions paid in cash to the
referent Person or a Restricted Subsidiary of such Person,
(ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental
approval (that has not been obtained) or, directly or
indirectly, prohibited by operation of the terms of its
charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable
to that Restricted Subsidiary or its stockholders unless
such restriction with respect to the payment of dividends
has been permanently waived, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be
excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded (effected either
through cumulative effect adjustment or a retroactive
application, in each case, in accordance with GAAP) and (v)
to the extent deducted in determining Net Income, the
expenses incurred in connection with the Recapitalization,
including, without limitation, management bonuses and
payments under the management incentive and equity
participation plans, in each case, to the extent that such
payment or expense was disclosed in the Offering Memorandum,
shall be excluded.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors of the
Company who (i) was a member of such Board of Directors on
the date hereof or (ii) was nominated for election or
elected to such Board of Directors with the affirmative vote
of a majority of the Continuing Directors who were members
of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at
the address of the Trustee specified in Section 12.02 hereof
or such other address as to which the Trustee may give
notice to the Company.
"Credit Facilities" means, with respect to the
Company, one or more debt facilities (including, without
limitation, the Senior Credit Facility) or commercial paper
facilities with banks or other institutional lenders
providing for revolving credit loans, term loans,
receivables financing (including through the sale of
receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables)
or letters of credit or other credit facilities, in each
case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to
time.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar agreement
or arrangement to which the Company or any Subsidiary is a
party or of which it is a beneficiary.
"Default" means any event that is or with the passage
of time or the giving of notice or both would be an Event of
Default.
"Definitive Notes" means Notes that are in the form of
the Notes attached hereto as Exhibit A, that do not include
the information called for by footnotes 1 and 2 thereof.
"Depository" means, with respect to the Notes issuable
or issued in whole or in part in global form, the Person
specified in Section 2.03 hereof as the Depository with
respect to the Notes, until a successor shall have been
appointed and become such pursuant to Article 2 hereof, and,
thereafter, "Depository" shall mean or include such
successor.
"Designated Senior Debt" means (i) any Indebtedness
outstanding under the Senior Credit Facility and (ii) any
other Senior Debt permitted under this Indenture the
principal amount of which is $10.0 million or more and that
has been designated by the Company as "Designated Senior
Debt."
"Disqualified Stock" means any Capital Stock that, by
its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the
happening of any event (other than as a result of a Change
of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which
the Notes mature; provided, however, that if such Capital
Stock is issued to any plan for the benefit of employees of
the Company or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable
statutory or regulatory obligations.
"Equity Interests" means Capital Stock and all
warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into,
or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchange Offer" means the offer that may be made by
the Company pursuant to the Registration Rights Agreement to
exchange Series B Notes for Series A Notes.
"Existing Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries (other than
Indebtedness under the Senior Credit Facility) in existence
on the date hereof, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) the
consolidated interest expenses of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of
original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the
interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers'
acceptance financings or any Receivables Facility, and net
payments (if any) pursuant to Hedging Obligations)
excluding, however, (A) amortization of debt issuance costs,
commissions, fees and expenses and (B) customary commitment,
administrative and transaction fees and charges and (ii) the
consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period, and
(iii) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries (whether or not such
Guarantee or Lien is called upon), (iv) all dividend
payments, whether or not in cash, on any series of preferred
stock of any Restricted Subsidiary of such Person and (v)
all dividend payments or accruals, whether or not in cash,
on any series of preferred stock of such person other than
dividend payments or accruals payable solely in Equity
Interests (other than Disqualified Stock) of such Person, in
each case, on a consolidated basis and in accordance with
GAAP.
"Fixed Charge Coverage Ratio" means with respect to
any Person for any period, the ratio of the Consolidated
Cash Flow of such Person and its Restricted Subsidiaries for
such period to the Fixed Charges of such Person and its
Restricted Subsidiaries for such period. In the event that
the Company or any of its Restricted Subsidiaries incurs,
assumes, Guarantees or redeems any Indebtedness (other than
revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated but prior to
the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Calculation
Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence,
assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same
had occurred at the beginning of the applicable four-quarter
reference period. For purposes of making the computation
referred to above, Investments, acquisitions, dispositions,
mergers and consolidations that have been made by the
Company or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date,
and discontinued operations determined in accordance with
GAAP on or prior to the Calculation Date, shall be given
effect on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, mergers and
consolidations or discontinued operations (and the reduction
or increase of any associated fixed charge obligations and
the change in Consolidated Cash Flow resulting therefrom)
had occurred on the first day of the four-quarter reference
period. 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
Investment, acquisition, disposition, merger or
consolidation or determined a discontinued operation, that
would have required adjustment pursuant to this definition,
then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, merger or
consolidation or discontinued operations had occurred at the
beginning of the applicable four-quarter period. For
purposes of this definition, whenever pro forma effect is to
be given to a transaction, the pro forma calculations shall
be made in good faith by a responsible financial or
accounting officer of the Company. If any Indebtedness to
which pro forma effect is given bears interest at a floating
rate, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the Calculation Date
had been the applicable interest rate for the entire period
(taking into account any Interest Rate Agreement in effect
on the Calculation Date). Interest on a Capital Lease
Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or
accounting officer of the Company to be the rate of interest
implicit in such Capital Lease Obligation in accordance with
GAAP. For purposes of making the computation referred to
above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed
based upon the average daily balance of such Indebtedness
during the applicable period. Interest on Indebtedness that
may optionally be determined at an interest rate based upon
a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to
have been based upon the rate actually chosen, or, if none,
then based upon such optional rate chosen as the Company may
designate.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect from time to
time, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other
entity as have been 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 as in effect as of the date hereof.
"Global Note" means a Note that contains the paragraph
referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached
hereto as Exhibit A.
"Government Securities" means direct obligations of,
or obligations guaranteed by, the United States of America
for the payment of which guarantee or obligations the full
faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by
endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any
manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any
part of any Indebtedness.
"Guarantors" means each of (i) Hart & Cooley, Inc.,
Mansfield Plumbing Products, Inc., DeVilbiss Air Power
Company, SWC Industries, Inc. and Ex-Cell Manufacturing
Company, Inc. and (ii) any other Subsidiary that executes a
Subsidiary Guarantee in accordance with Section 4.17 hereof,
and their respective successors and assigns, in each case,
until released from its Subsidiary Guarantee in accordance
with the terms of this Indenture.
"Hedging Obligations" means, with respect to any
Person, the obligations of such Person under (i) interest
rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against
fluctuations in interest rates.
"Holder" means a Person in whose name a Note is
registered.
"Indebtedness" means, with respect to any Person
(without duplication), (i) any indebtedness of such Person,
whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect
thereof) or banker's acceptances or representing Capital
Lease Obligations or the balance deferred and unpaid of the
purchase price of any property, which purchase price is due
more than six months after the date of placing such property
in service or taking delivery thereof, or representing any
Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than
letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in
accordance with GAAP, (ii) all indebtedness under clause (i)
of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person)
and (iii) to the extent not otherwise included, the
Guarantee by such Person of any indebtedness under clause
(i) of any other Person; provided, however, that
Indebtedness shall not include (a) any servicing or
guarantee of servicing obligations with respect to
Receivables, (b) obligations of the Company or any of its
Restricted Subsidiaries arising from agreements of the
Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or a
Subsidiary, other than guarantees of Indebtedness incurred
by any Person acquiring all or any portion of such business,
assets or a Subsidiary for the purpose of financing such
acquisition; provided, however, that (x) such obligations
are not reflected on the balance sheet of the Company or any
Restricted Subsidiary (contingent obligations referred to in
a footnote to financial statements and not otherwise
reflected on the balance sheet shall not be deemed to be
reflected on such balance sheet for purposes of this
clause (x)) and (y) the maximum assumable liability in
respect of all such obligations shall at no time exceed the
gross proceeds including noncash proceeds (the fair market
value of such noncash proceeds being measured at the time
received and without giving effect to any subsequent changes
in value) actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;
or (c) obligations in respect of performance and surety
bonds and completion guarantees provided by the Company or
any Restricted Subsidiary in the ordinary course of
business. The amount of any Indebtedness outstanding as of
any date shall be (i) the accreted value thereof, in the
case of any Indebtedness that does not require current
payments of interest, and (ii) the principal amount thereof
in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Initial Control Group" means Investcorp, its
Affiliates, members of the Management Group, the investors
who are the initial holders of the Capital Stock of the
Company, any Person acting in the capacity of an underwriter
or initial purchaser in connection with a public or private
offering of the Company's Capital Stock, any employee
benefit plan of the Company or any of its Subsidiaries or
any participant therein, a trustee or other fiduciary
holding securities under any such employee benefit plan or
any Permitted Transferee of any of the foregoing Persons.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, repurchase
agreement, futures contract or other financial agreement or
arrangement designed to protect the Company or any
Subsidiary against fluctuations in interest rates.
"Investment Grade Securities" means (i) securities
issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality
thereof (other than Cash Equivalents), (ii) debt securities
or debt instruments with a rating of BBB- or higher by S&P
or Baa3 or higher by Moody's or the equivalent of such
rating by such rating organization, or, if no rating of S&P
or Moody's then exists, the equivalent of such rating by any
other nationally recognized securities rating agency, but
excluding any debt securities or instruments constituting
loans or advances among the Company and its Subsidiaries,
and (iii) investments in any fund that invests exclusively
in investments of the type described in clauses (i) and (ii)
which fund may also hold immaterial amounts of cash pending
investment and/or distribution.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including
Affiliates) in the forms of direct or indirect loans
(including guarantees of Indebtedness or other obligations,
but excluding advances to customers in the ordinary course
of business that are recorded as accounts receivable on the
balance sheet of such Person), advances or capital
contributions (excluding commission, travel, payroll,
entertainment, relocation and similar advances to officers
and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as
investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Subsidiary of the Company sells
or otherwise disposes of any Equity Interests of any direct
or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person
is no longer a Subsidiary of the Company, the Company shall
be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the
Equity Interests of such Subsidiary not sold or disposed of
in an amount determined as provided in the final paragraph
of Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of New York or at a
place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening
period.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention
agreement or any lease in the nature thereof; provided that
in no event shall an operating lease be deemed to constitute
a Lien.
"Liquidated Damages" means all liquidated damages then
owing pursuant to Section 5 of the Registration Rights
Agreement.
"Management Group" means the senior management of the
Company or its Restricted Subsidiaries.
"Net Income" means, with respect to any Person, the
net income (or loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however, (i) any
extraordinary or non-recurring gains or losses or charges
and gains or losses or charges from the sale of assets
outside the ordinary course of business, together with any
related provision for taxes on such gain or loss or charges
and (ii) deferred financing costs written off in connection
with the early extinguishment of Indebtedness.
"Net Proceeds" means the aggregate cash proceeds
received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset
Sale (including, without limitation, legal, accounting and
investment banking fees, and brokerage and sales
commissions) and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts
required to be applied to the repayment of principal,
premium (if any) and interest on Indebtedness that is not
subordinated to the Notes required (other than required by
clause (a) of Section 4.10 hereof) to be paid as a result of
such transaction, all distributions and other payments
required to be made to minority interest holders in
Subsidiaries or joint ventures as a result of such Asset
Sale, and any deduction of appropriate amounts to be
provided by the Company as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed
of in such transaction and retained by the Company after
such sale or other disposition thereof, including, without
limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters
or against any indemnification obligations associated with
such transaction.
"Non-Recourse Debt" means Indebtedness (i) as to which
neither the Company nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness) or (b) is directly or indirectly liable (as a
guarantor or otherwise); and (ii) no default with respect to
which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Indebtedness (other than the
Notes being offered hereby) of the Company or any of its
Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity; and (iii) as to
which the lenders have been notified in writing that they
shall not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries; provided
that, notwithstanding the foregoing, the Company and any of
its other Subsidiaries that sell Receivables to the Person
incurring such Indebtedness shall be allowed to provide such
representations, warranties, covenants and indemnities as
are customarily required in such transactions so long as no
such representations, warranties, covenants or indemnities
constitute a Guarantee of payment or recourse against credit
losses.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest,
penalties, fees, indemnifications, reimbursements, damages,
guarantees and other liabilities payable under the
documentation governing any Indebtedness, in each case
whether now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished
and later increased, created or incurred, whether or not
arising on or after the commencement of a proceeding under
Title 11, U.S. Code or any similar federal or state law for
the relief of debtors (including post-petition interest) and
whether or not allowed or allowable as a claim in any such
proceeding.
"Offering" means the Offering of the Notes by the
Company.
"Offering Memorandum" means the offering memorandum,
dated June 6, 1997, of the Company, relating to the
Offering.
"Officer" means, with respect to any Person, the
Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on
behalf of the Company by two Officers of the Company, one of
whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting
officer of the Company, that meets the requirements of
Section 12.05 hereof, and delivered to the Trustee.
"Opinion of Counsel" means an opinion from legal
counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Section 12.05 hereof, and
delivered to the Trustee. The counsel may be an employee of
or counsel to the Company, any Subsidiary of the Company or
the Trustee.
"Other Notes" means the 101/2% Senior Subordinated
Discount Notes due 2007 of the Company.
"Pari Passu Indebtedness" means any Indebtedness of
the Company that ranks pari passu with the Notes.
"Permitted Business" means the building products, home
improvement products and decorative accessory products
businesses and any other business reasonably related or
incidental thereto.
"Permitted Investments" means (a) any Investment in
the Company or in a Restricted Subsidiary (including in any
Equity Interests of a Restricted Subsidiary); (b) any
Investment in Cash Equivalents or Investment Grade
Securities; (c) any Investment by the Company or any
Restricted Subsidiary of the Company in a Person, if as a
result of such Investment (i) such Person becomes a
Restricted Subsidiary or (ii) such Person, in one
transaction or a series of substantially concurrent related
transactions, is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a
Restricted Subsidiary; (d) any securities received or other
Investments made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to
and in compliance with Section 4.10 hereof or in connection
with any other disposition of assets not constituting an
Asset Sale; (e) any acquisition of assets solely in exchange
for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (f) any Investments
relating to a Receivables Subsidiary; (g) loans or advances
to employees (or guarantees of third party loans to
employees) in the ordinary course of business; (h) stock,
obligations or securities received in satisfaction of
judgments or settlement of debts; (i) 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
(including such concessionary terms as the Company or such
Restricted Subsidiary deems reasonable); (j) any Investment
existing on the date hereof; (k) Hedging Obligations and
Currency Agreements otherwise permitted under this
Indenture; (l) any transaction to the extent it constitutes
an Investment that is permitted and made in accordance with
the provisions of clause (12) of Section 4.11; (m) any
Investment in a Permitted Business (other than an
Unrestricted Subsidiary) having an aggregate fair market
value, taken together with all other Investments made
pursuant to this clause (m) that are at that time
outstanding, not to exceed 15.0% of Total Assets at the time
of such Investment (with the fair market value of each
Investment being measured at the time made and without
giving effect to subsequent changes in value); and
(n) additional Investments having an aggregate fair market
value, taken together with all other Investments made
pursuant to this clause (n) that are at that time
outstanding, not to exceed 10.0% of Total Assets at the time
of such Investment (with the fair market value of each
Investment being measured at the time made and without
giving effect to subsequent changes in value).
"Permitted Junior Securities" shall mean debt or
equity securities of the Company or any successor
corporation issued pursuant to a plan of reorganization or
readjustment of the Company that are subordinated to the
payment of all then outstanding Senior Debt at least to the
same extent that the Notes are subordinated to the payment
of all Senior Debt on the date hereof, so long as (i) the
effect of the use of this defined term in Article 10 is not
to cause the Notes to be treated as part of (a) the same
class of claims as the Senior Debt or (b) any class of
claims pari passu with, or senior to, the Senior Debt for
any payment or distribution in any case or proceeding or
similar event relating to the liquidation, insolvency,
bankruptcy, dissolution, winding up or reorganization of the
Company and (ii) to the extent that any Senior Debt
outstanding on the date of consummation of any such plan of
reorganization or readjustment are not paid in full in cash
on such date, either (a) the holders of any such Senior Debt
not so paid in full in cash have consented to the terms of
such plan of reorganization or readjustment or (b) such
holders receive securities which constitute Senior Debt and
which have been determined by the relevant court to
constitute satisfaction in full in money or money's worth of
any Senior Debt not paid in full in cash.
"Permitted Liens" means (i) Liens securing Senior Debt
of the Company or a Restricted Subsidiary that was permitted
by the terms of this Indenture to be incurred; (ii) Liens in
favor of the Company or any Restricted Subsidiary; (iii)
Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or
any Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated
with the Company or a Restricted Subsidiary, as the case may
be; (iv) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted
Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition;
(v) Liens to secure the performance of bids, tenders, trade
or government contracts (other than for borrowed money),
leases, licenses, statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like
nature incurred in the ordinary course of business; (vi)
without limitation of clause (i), Liens to secure
Indebtedness (including Capital Lease Obligations) permitted
by clause (v) of Section 4.09 hereof covering only the
assets acquired with such Indebtedness; (vii) Liens existing
on the date hereof; (viii) Liens for taxes, assessments or
governmental charges or claims that are not yet delinquent
or that are being contested in good faith by appropriate
proceedings, provided that any reserve or other appropriate
provision as shall be required in conformity with GAAP shall
have been made therefor; (ix) Liens on Receivables to
reflect sales of Receivables to and by the Receivables
Subsidiary pursuant to the Receivables Facility or securing
Indebtedness permitted by paragraph (ix) of Section 4.09
hereof; (x) Liens incurred in the ordinary course of
business of the Company or any Restricted Subsidiary of the
Company with respect to obligations that do not exceed $5.0
million at any one time outstanding and that (a) are not
incurred in connection with the borrowing of money or the
obtaining of advances or credit (other than trade credit in
the ordinary course of business) and (b) do not in the
aggregate materially detract from the value of the property
or materially impair the use thereof in the operation of
business by the Company or such Restricted Subsidiary;
(xi) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other like Liens arising in
the ordinary course of business in respect of obligations
that are not yet due or that are bonded or that are being
contested in good faith and by appropriate proceedings if
adequate reserves with respect thereto are maintained on the
books of the Company or such Restricted Subsidiary, as the
case may be, in accordance with GAAP; (xii) pledges or
deposits in connection with workmen's compensation,
unemployment insurance and other social security
legislation; (xiii) easements (including reciprocal easement
agreements), rights-of-way, building, zoning and similar
restrictions, utility agreements, covenants, reservations,
restrictions, encroachments, changes, and other similar
encumbrances or title defects incurred, or leases or
subleases granted to others, in the ordinary course of
business, that do not in the aggregate materially detract
from the aggregate value of the properties of the Company
and its Subsidiaries, taken as a whole, or in the aggregate
materially interfere with or adversely affect in any
material respect the ordinary conduct of the business of the
Company and its Subsidiaries on the properties subject
thereto, taken as a whole; (xiv) Liens on goods (and the
proceeds thereof) and documents of title and the property
covered thereby securing Indebtedness in respect of
commercial letters of credit; (xv) (a) mortgages, liens,
security interests, restrictions, encumbrances or any other
matters of record that have been placed by any developer,
landlord or other third party on property over which the
Company or any Restricted Subsidiary of the Company has
easement rights or on any real property leased by the
Company on the date hereof and subordination or similar
agreements relating thereto and (b) any condemnation or
eminent domain proceedings affecting any real property;
(xvi) leases or subleases to third parties; (xvii) Liens in
connection with workmen's compensation obligations and
general liability exposure of the Company and its Restricted
Subsidiaries; (xviii) Liens arising by reason of a judgment,
decree or court order, to the extent not otherwise resulting
an Event of Default; (xix) Liens securing Hedging
Obligations and Currency Agreements entered into in the
ordinary course of business; (xx) without limitation of
clause (i), Liens securing Refinancing Indebtedness
permitted to be incurred under this Indenture or amendments
or renewals of Liens that were permitted to be incurred,
provided, in each case, that such Liens do not extend to an
additional property or asset; and (xxi) Liens that secure
Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary of the Company, provided
such Liens do not extend to any property or asset of any
other Restricted Subsidiary or the Company.
"Permitted Refinancing Indebtedness" means any
Indebtedness of the Company or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease
or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries; provided that: (i) the principal
amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus accrued
interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of
reasonable premium and fees and expenses incurred in
connection therewith); (ii) in the case of term
Indebtedness, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at
least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the
obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Permitted Transferee" means, with respect to any
Person, (i) any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect
common control with such specified Person, (ii) the spouse,
former spouse, lineal descendants, heirs, executors,
administrators, testamentary trustees, legatees or
beneficiaries of any such Person, (iii) a trust, the
beneficiaries of which, or a corporation or partnership or
limited liability company, the stockholders, general or
limited partners or members of which, include only such
Person or his or her spouse, lineal descendants or heirs, in
each case to whom such Person has transferred the beneficial
ownership of any securities of the Company and (iv) any
investment fund or investment entity that is a subsidiary of
such Person or a Permitted Transferee of such Person.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or
agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity,
subdivision or business).
"Receivables" means, collectively, (a) the
Indebtedness and other obligations owed to the Company or
any of its Subsidiaries (before giving effect to any sale or
transfer thereof pursuant to a Receivables Facility),
whether constituting an account, chattel paper, an
instrument, a document or general intangible, arising in
connection with the sale of goods, insurance and/or services
by the Company or such Subsidiary, including, without
limitation, the obligation to pay any late fees, interest or
other finance charges with respect thereto (each of the
foregoing, collectively, an "Account Receivable"), (b) all
of the Company's or such Subsidiary's interest in the goods
(including returned goods), if any, the sale of which gave
rise to any Account Receivable, and all insurance contracts
with respect thereto, (c) all other security interests or
Liens and property subject thereto from time to time, if
any, purporting to secure payment of any Account Receivable,
together with all financing statements and security
agreements describing any collateral securing such Account
Receivable, (d) all Guarantees, insurance and other
agreements or arrangements of whatever character from time
to time supporting or securing payment of any Account
Receivable, (e) all contracts, invoices, books and records
of any kind related to any Account Receivable, (f) all cash
collections in respect of, and cash proceeds of, any of the
foregoing and any and all lockboxes, lockbox accounts,
collection accounts, concentration accounts and similar
accounts in or into which such collections and cash proceeds
are now or hereafter deposited, collected or concentrated,
and (g) all proceeds of any of the foregoing.
"Receivables Facility" means, with respect to any
Person, any Receivables securitization or factoring program
pursuant to which such Person receives proceeds pursuant to
a sale, pledge or other encumbrance of its Receivables.
"Receivables Financing Amount" means at any date, with
respect to any Receivables Facility of any Person that does
not represent an incurrence of Indebtedness, the sum on such
date of (a) the aggregate uncollected balances of Accounts
Receivable (as defined in the definition of "Receivable")
transferred ("Transferred Receivables") in such Receivables
Facility plus (b) the aggregate amount of all collections of
Transferred Receivables theretofore received by such Person
but not yet remitted to the purchaser, net of all reserves
and holdbacks retained by or for the benefit of the
purchaser and net of any interest retained by such Person
and reasonable costs and expenses (including, without
limitation, fees and commissions and taxes other than income
taxes) incurred by such Person in connection therewith and
not payable to any Affiliate of such Person.
"Receivables Subsidiary" means any Subsidiary created
primarily to purchase or finance the receivables of the
Company and/or its Subsidiaries pursuant to a Receivables
Facility, so long as it: (a) has no Indebtedness other than
Non-Recourse Debt and (b) is a Person with respect to which
neither the Company nor any of its other Subsidiaries has
any direct obligation to maintain or preserve such Person's
financial condition or to cause such Person to achieve any
specified levels of operating results other than to act as
servicer of Receivables. If, at any time, such Receivables
Subsidiary would fail to meet the foregoing requirements as
a Receivables Subsidiary, it shall thereafter cease to be a
Receivables Subsidiary for purposes of this Indenture and
any Indebtedness of such Receivables Subsidiary shall be
deemed to be incurred by a Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the
Company shall be in default of such Section).
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 17, 1997, by and among
the Company and the other parties named on the signature
pages thereof, as such agreement may be amended, modified or
supplemented from time to time.
"Representative" means the indenture trustee or other
trustee, agent or representative for any Senior Debt.
"Responsible Officer," when used with respect to the
Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of
the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Investment" means an Investment other than
a Permitted Investment.
"Restricted Subsidiary" of a Person means any
Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Credit Facility" means the Credit Agreement
dated as of June 17, 1997 among the Company and the
financial institutions named therein, The Chase Manhattan
Bank, as administrative agent, and Chase Securities Inc., as
arranger, and any related notes, collateral documents,
letters of credit and guarantees, including any appendices,
exhibits or schedules to any of the foregoing (as the same
may be in effect from time to time), in each case, as such
agreements may be amended, modified, supplemented or
restated from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid or extended from
time to time (whether with the original agents and lenders
or other agents or lenders or otherwise, and whether
provided under the original credit agreement or other credit
agreements or otherwise).
"Senior Debt" means (i) all Indebtedness of the
Company or any of its Restricted Subsidiaries outstanding
under Senior Credit Facility and all Hedging Obligations
with respect thereto, (ii) any other Indebtedness (including
Acquired Debt) permitted to be incurred by the Company or
one of its Restricted Subsidiaries under the terms of this
Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes
or any Subsidiary Guarantee and (iii) all Obligations with
respect to the foregoing. Notwithstanding anything to the
contrary in the foregoing, Senior Debt shall not include (w)
any liability for federal, state, local or other taxes owed
or owing by the Company, (x) any Indebtedness of the Company
or any of its Restricted Subsidiaries to any of its
Subsidiaries or other Affiliates, (y) any trade payables or
(z) any Indebtedness that is incurred in violation of this
Indenture.
"Significant Subsidiary" means any Subsidiary that
would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the date
hereof.
"Specified Affiliate Payments" means: (i) the
repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any future,
present or former employee, director, officer or consultant
of the Company (or any of its Restricted Subsidiaries)
pursuant to any management equity subscription agreement,
stock option agreement, put agreement or similar agreement
that may be in effect from time to time; provided that the
aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $2.5
million in any calendar year (with unused amounts in any
calendar year being carried over to succeeding calendar
years subject to a maximum amount of repurchases,
redemptions or other acquisitions pursuant to this clause
(i) (without giving effect to the immediately following
proviso) of $7.5 million in any calendar year) and no
payment default on Senior Debt or the Notes shall have
occurred and be continuing; provided further that such
amount in any calendar year may be increased by an amount
not to exceed (A) the cash proceeds received by the Company
since the date hereof from the sale of Equity Interests of
the Company to employees, directors, officers or consultants
of the Company and its Subsidiaries that occurs in such
calendar year (provided that such cash proceeds shall be
excluded from clause (c)(ii) of the first paragraph under
Section 4.07 hereof) plus (B) the cash proceeds from key man
life insurance policies received by the Company and its
Restricted Subsidiaries in such calendar year; and provided
further that cancellation of Indebtedness owing to the
Company from employees, directors, officers or consultants
of the Company or any of its Subsidiaries in connection with
a repurchase of Equity Interests of the Company shall not be
deemed to constitute a Restricted Payment for purposes of
this Indenture; (ii) repurchases of Equity Interests deemed
to occur upon exercise of stock options or warrants as a
result of the payment of all or a portion of the exercise
price of such options or warrants with Equity Interests;
(iii) payments by the Company to members of management of
the Company under the management incentive and equity
participation plans as a result of and upon the
Recapitalization to the extent disclosed in the Offering
Memorandum; and (iv) payments permitted under clauses (5),
(6), (8), (9) and (11) of the second paragraph of Section
4.11 hereof.
"Stated Maturity" means, with respect to any
installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not
include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i)
any corporation, association or other business entity of
which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Distribution" means the dividend or
distribution by the Company of all the Equity Interests in
any one Subsidiary and its direct or indirect Subsidiaries
(collectively, a "Distributed Subsidiary") owned by the
Company or any of its Restricted Subsidiaries; provided that
(A) prior to such dividend or distribution, the Company
shall make an offer (a "Subsidiary Distribution Offer") to
all Holders of Notes and Other Notes to purchase the
principal amount (or, with respect to the Other Notes only,
prior to the Full Accretion Date, the Accreted Value) of
Notes and Other Notes equal to the product of (1) the
outstanding principal amount (or, with respect to the Other
Notes only, prior to the Full Accretion Date, the Accreted
Value) of Notes and Other Notes immediately prior to such
dividend or distribution, multiplied by (2) such portion of
the Consolidated Cash Flow of the Company and its Restricted
Subsidiaries (including the Distributed Subsidiary) for the
most recently ended four full fiscal quarters of the Company
(expressed as a decimal) as is attributable to the
Distributed Subsidiary (calculated as set forth in the
definition of Fixed Charge Coverage Ratio), at an offer
price in cash (the "Subsidiary Distribution Offer Payment")
in an amount equal to 101% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages
thereon, if any (or, with respect to the Other Notes only,
prior to the Full Accretion Date, 101% of the Accreted Value
thereof plus Liquidated Damages thereon, if any), to the
date of purchase, in accordance with Section 3.10 hereof,
provided, however, that the Subsidiary Distribution shall
not occur in the Subsidiary Distribution Offer Period (as
defined), (B) each of S&P and Moody's confirms, in writing,
prior to such dividend or distribution, but following the
announcement of the results of the Subsidiary Distribution
Offer, that it will not downgrade its rating of the Notes or
the Other Notes, (C) immediately following the transaction,
the Fixed Charge Coverage Ratio of the Company for the most
recently ended four full fiscal quarters of the Company,
calculated giving pro forma effect to (1) such dividend or
distribution, (2) the repurchase of all Notes and Other
Notes irrevocably tendered for purchase pursuant to the
Subsidiary Distribution Offer and (3) any reduction of
Indebtedness of the Company and its Restricted Subsidiaries
that occurs concurrently with such dividend or distribution,
is greater than the Fixed Charge Coverage Ratio for such
four-quarter reference period immediately prior to such
dividend or distribution and Subsidiary Distribution Offer,
(D) no Default or Event of Default exists immediately
following the dividend or distribution or Subsidiary
Distribution Offer, (E) the Consolidated Cash Flow of the
Company and its remaining Restricted Subsidiaries for the
most recently ended four full fiscal quarters of the
Company, calculated giving pro forma effect to such dividend
or distribution, is not less than 60% of the Consolidated
Cash Flow of the Company and all of its Restricted
Subsidiaries (including the Distributed Subsidiary) for such
four-quarter reference period (calculated as set forth in
the definition of Fixed Charge Coverage Ratio, but without
giving pro forma effect to such dividend or distribution)
and (F) no other dividend or distribution of Equity
Interests in any Subsidiary has been made pursuant to clause
(vi) of Section 4.07 hereof subsequent to the date hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
SectionSection 77aaa-77bbbb) as in effect on the date on
which this Indenture is qualified under the TIA.
"Total Assets" means, at any time, the total
consolidated assets of the Company and its Restricted
Subsidiaries at such time. For the purposes of paragraph
(iv) of Section 4.09 hereof, Total Assets shall be
determined giving pro forma effect to the lease,
acquisition, construction or improvement of the assets being
leased, acquired, constructed or improved with the proceeds
of the relevant Indebtedness.
"Transfer Restricted Securities" means securities that
bear or are required to bear the legend set forth in Section
2.06 hereof.
"Treasury Rate" means the yield to maturity at the
time of computation of United States Treasury securities
with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H. 15(519)
which has become publicly available at least two Business
Days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available
source or similar market data)) most nearly equal to the
period from the redemption date to June 15, 2002, provided,
however, that if the period from the redemption date to June
15, 2002 is not equal to the constant maturity of a United
States Treasury security for which a weekly average yield is
given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States
Treasury securities for which such yields are given, except
that if the period from the redemption date to June 15, 2002
is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the
successor serving hereunder.
"Unrestricted Subsidiary" means (i) any Receivables
Subsidiary in existence on the date hereof and (ii) any
other Subsidiary that is designated by the Board of
Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a)
has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to
which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating
results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of
the Company or any of its Restricted Subsidiaries. Any such
designation by the Board of Directors shall be evidenced to
the Trustee by filing with the Trustee a certified copy of
the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by
Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as
an Unrestricted Subsidiary, it shall thereafter cease to be
an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to
be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the
Company shall be in default of such Section). The Board of
Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if
(i) such Indebtedness is permitted under Section 4.09
hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-
quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to
vote in the election of the Board of Directors of such
Person.
"Weighted Average Life to Maturity" means, when
applied to any Indebtedness at any date, the number of years
obtained by dividing (i) the sum of the products obtained by
multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity,
in respect thereof, by (b) the number of years (calculated
to the nearest one-twelfth) that will elapse between such
date and the making of such payment, by (ii) the then
outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person
means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the
time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more
Wholly Owned Restricted Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 4.10
"Change of Control Offer" 3.09
"Change of Control Payment" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"Excess Proceeds Offer" 3.09
"Excess Proceeds Amount" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"non-payment default" 10.03
"Noteholder" 10.01
"Offer Amount" 3.09
"Offer Period" 3.09
"payment default" 10.03
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Permitted Debt" 4.09
"Purchase Date" 3.09
"Repurchase Offer" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
"Subsidiary Distribution Offer Amount" 3.10
"Subsidiary Distribution Offer Period" 3.10
"Subsidiary Distribution Offer Purchase Date"
3.10
Section 1.03. Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made
a part of this Indenture.
The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee;
"obligor" on the Notes means the Company, the
Guarantors and any successor obligor upon the Notes.
All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule under the TIA have the mean
ings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the
SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit
A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.
Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the text
referred to in footnotes 1 and 2 thereto). Notes issued in
definitive form shall be substantially in the form of
Exhibit A attached hereto (but without including the text
referred to in footnotes 1 and 2 thereto). Each Global Note
shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount
of outstanding Notes represented thereby may from time to
time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the
amount of outstanding Notes represented thereby shall be
made by the Trustee or the Note Custodian, at the direction
of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the
Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall, upon a written order of the Company
signed by two Officers, authenticate Notes for original
issue up to the aggregate principal amount stated in
paragraph 4 of the Notes. The aggregate principal amount of
Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate of the
Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Notes
may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee
in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust
Company ("DTC") to act as Depository with respect to the
Global Notes.
The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Note Custodian
with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will
hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the
Notes, and will notify the Trustee of any default by the
Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to
the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have
no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05. 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 all Holders and shall
otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company and/or the Guarantors shall
furnish to the Trustee at least seven Business Days before
each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as
of such date as the Trustee may reasonably require of the
names and addresses of the Holders of Notes and the Company
and the Guarantors shall otherwise comply with TIA
Section 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes.
When Definitive Notes are presented by a Holder to the
Registrar with a request:
(x) to register the transfer of the
Definitive Notes; or
(y) to exchange such Definitive Notes
for an equal principal amount of Definitive
Notes of other authorized denominations,
the Registrar shall register the transfer or make the
exchange as requested if its requirements for such
transactions are met; provided, however, that the Definitive
Notes presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or
accompanied by a written instruction of
transfer in form satisfactory to the
Registrar duly executed by such Holder or by
his attorney, duly authorized in writing; and
(ii) in the case of a Definitive
Note that is a Transfer Restricted Security,
such request shall be accompanied by the
following additional information and
documents, as applicable:
(A) if such Transfer
Restricted Security is being delivered to
the Registrar by a Holder for registration
in the name of such Holder, without
transfer, a certification to that effect
from such Holder (in substantially the
form of Exhibit B hereto); or
(B) if such Transfer
Restricted Security is being transferred
to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under
the Securities Act or pursuant to an
exemption from registration in accordance
with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective
registration statement under the
Securities Act, a certification to that
effect from such Holder (in substantially
the form of Exhibit B hereto); or
(C) if such Transfer
Restricted Security is being transferred
in reliance on another exemption from the
registration requirements of the
Securities Act, a certification to that
effect from such Holder (in substantially
the form of Exhibit B hereto) and an
Opinion of Counsel from such Holder or the
transferee reasonably acceptable to the
Company and to the Registrar to the effect
that such transfer is in compliance with
the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be
exchanged for a beneficial interest in a Global Note except
upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
(i) if such Definitive Note is a Transfer
Restricted Security, a certification from the
Holder thereof (in substantially the form of
Exhibit B hereto) to the effect that such
Definitive Note is being transferred by such Holder
to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a
Transfer Restricted Security, written instructions
from the Holder thereof directing the Trustee to
make, or to direct the Note Custodian to make, an
endorsement on the Global Note to reflect an
increase in the aggregate principal amount of the
Notes represented by the Global Note,
in which case the Trustee shall cancel such Definitive Note
in accordance with Section 2.11 hereof and cause, or direct
the Note Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depository
and the Note Custodian, the aggregate principal amount of
Notes represented by the Global Note to be increased
accordingly. If no Global Notes are then outstanding, the
Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee
shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Notes. The
transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depository,
in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent
required by the Securities Act.
(d) Transfer of a Beneficial Interest in a
Global Note for a Definitive Note.
(i) Any Person having a beneficial
interest in a Global Note may upon request
exchange such beneficial interest for a
Definitive Note. Upon receipt by the Trustee of
written instructions or such other form of
instructions as is customary for the Depository,
from the Depository or its nominee on behalf of
any Person having a beneficial interest in a
Global Note, and, in the case of a Transfer
Restricted Security, the following additional
information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial
interest is being transferred to the
Person designated by the Depository as
being the beneficial owner, a
certification to that effect from such
Person (in substantially the form of
Exhibit B hereto); or
(B) if such beneficial
interest is being transferred to a
"qualified institutional buyer" (as
defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under
the Securities Act or pursuant to an
exemption from registration in accordance
with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective
registration statement under the
Securities Act, a certification to that
effect from the transferor (in
substantially the form of Exhibit B
hereto); or
(C) if such beneficial
interest is being transferred in reliance
on another exemption from the registration
requirements of the Securities Act, a
certification to that effect from the
transferor (in substantially the form of
Exhibit B hereto) and an Opinion of
Counsel from the transferee or transferor
reasonably acceptable to the Company and
to the Registrar to the effect that such
transfer is in compliance with the
Securities Act,
in which case the Trustee or the Note
Custodian, at the direction of the Trustee,
shall, in accordance with the standing
instructions and procedures existing between the
Depository and the Note Custodian, cause the
aggregate principal amount of Global Notes to be
reduced accordingly and, following such
reduction, the Company shall execute and, upon
receipt of an authentication order in accordance
with Section 2.02 hereof, the Trustee shall
authenticate and deliver to the transferee a
Definitive Note in the appropriate principal
amount.
(ii) Definitive Notes issued in exchange
for a beneficial interest in a Global Note
pursuant to this Section 2.06(d) shall be
registered in such names and in such authorized
denominations as the Depository, pursuant to
instructions from its direct or indirect
participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such
Definitive Notes to the Persons in whose names
such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global
Notes. Notwithstanding any other provision of this
Indenture (other than the provisions set forth in subsection
(f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) Authentication of Definitive Notes in
Absence of Depository. If at any time:
(i) the Depository for the Notes
notifies the Company that the Depository is
unwilling or unable to continue as Depository
for the Global Notes and a successor Depository
for the Global Notes is not appointed by the
Company within 90 days after delivery of such
notice; or
(ii) the Company, at its sole discretion,
notifies the Trustee in writing that it elects
to cause the issuance of Definitive Notes under
this Indenture,
then the Company shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with
Section 2.02 hereof, authenticate and deliver, Definitive
Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such
Global Notes.
(g) Legends.
(i) Except as permitted by the following
paragraphs (ii) and (iii), each Note certificate
evidencing Global Notes and Definitive Notes
(and all Notes issued in exchange therefor or
substitution thereof) shall bear legends in
substantially the following form:
"THE NOTE (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) 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 (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (1) ABOVE."
(ii) Upon any sale or transfer of a
Transfer Restricted Security (including any
Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer
Restricted Security that is a Definitive
Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not
bear the legend set forth in (i) above and
rescind any restriction on the transfer of
such Transfer Restricted Security; and
(B) in the case of any Transfer
Restricted Security represented by a Global
Note, such Transfer Restricted Security shall
not be required to bear the first legend set
forth in (i) above, but shall continue to be
subject to the provisions of Section 2.06(c)
hereof; provided, however, that with respect
to any request for an exchange of a Transfer
Restricted Security that is represented by a
Global Note for a Definitive Note that does
not bear the first legend set forth in (i)
above, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in
writing to the Registrar that such request is
being made pursuant to Rule 144 (such
certification to be substantially in the form
of Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company
shall issue and, upon receipt of an
authentication order in accordance with Section
2.02 hereof, the Trustee shall authenticate
Series B Notes in exchange for Series A Notes
accepted for exchange in the Exchange Offer,
which Series B Notes shall not bear the first
legend set forth in (i) above, and the Registrar
shall rescind any restriction on the transfer of
such Notes, in each case unless the Holder of
such Series A Notes is either (A) a broker-
dealer, (B) a Person participating in the
distribution of the Series A Notes or (C) a
Person who is an affiliate (as defined in Rule
144A) of the Company.
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in Global Notes
have been exchanged for Definitive Notes, redeemed,
repurchased or cancelled, all Global Notes shall be returned
to or retained and cancelled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is
exchanged for Definitive Notes, redeemed, repurchased or
cancelled, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note, by the Trustee or the
Notes Custodian, at the direction of the Trustee, to reflect
such reduction.
(i) General Provisions Relating to Transfers
and Exchanges.
(i) To permit registrations of
transfers and exchanges, the Company shall
execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the
Registrar's request.
(ii) No service charge shall be
made to a Holder for any registration of
transfer or exchange, but the Company may
require payment of a sum sufficient to cover
any transfer tax or similar governmental
charge payable in connection therewith (other
than any such transfer taxes or similar
governmental charge payable upon exchange or
transfer pursuant to Sections 3.07, 3.09,
3.10, 4.07, 4.10, 4.15 and 9.05 hereto).
(iii) The Registrar shall not be
required to register the transfer of or
exchange any Note selected for redemption in
whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Definitive Notes and
Global Notes issued upon any registration of
transfer or exchange of Definitive Notes or
Global Notes shall be the valid obligations
of the Company, evidencing the same debt, and
entitled to the same benefits under this
Indenture, as the Definitive Notes or Global
Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be
required:
(A) to issue, to register
the transfer of or to exchange Notes
during a period beginning at the opening
of business 15 days before the day of any
selection of Notes for redemption under
Section 3.02 hereof and ending at the
close of business on the day of selection;
or
(B) to register the transfer
of or to exchange any Note so selected for
redemption in whole or in part, except the
unredeemed portion of any Note being
redeemed in part; or
(C) to register the transfer
of or to exchange a Note between a record
date and the next succeeding interest
payment date.
(vi) Prior to due presentment for
the registration of a transfer of any Note,
the Trustee, any Agent and the Company may
deem and treat the Person in whose name any
Note is registered as the absolute owner of
such Note for the purpose of receiving
payment of principal of and interest on such
Notes, and neither the Trustee, any Agent nor
the Company shall be affected by notice to
the contrary.
(vii) The Trustee shall authenticate
Definitive Notes and Global Notes in
accordance with the provisions of Section
2.02 hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee,
or the Company and the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note,
the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and
any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Company may charge for
its expenses in replacing a Note.
Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of
this Indenture equally and proportionately with all other
Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation, those reductions
in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding
because the Company, any Guarantor or an Affiliate of the
Company or any Guarantor holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced Note is held by a
bona fide purchaser.
If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a
redemption date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Company or any
Guarantor, or by any Person directly or indirectly
controlling or controlled by or under direct or indirect
common control with the Company or any Guarantor, shall be
considered as though not outstanding, except that for the
purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or
consent, only Notes that a Trustee knows are so owned shall
be so disregarded.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate
temporary Notes upon a written order of the Company signed
by two Officers of the Company. Temporary Notes shall be
substantially in the form of Definitive Notes but may have
variations that the Company considers appropriate for
temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes
in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement
or cancellation and shall destroy cancelled Notes (subject
to the record retention requirement of the Exchange Act).
Certification of the destruction of all cancelled Notes
shall be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that
have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The
Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the
date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment
date, provided that no such special record date shall be
less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of
the Company, the Trustee in the name and at the expense of
the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related
payment date and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it
shall furnish to the Trustee, at least 45 days but not more
than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes and the Other Notes are
to be redeemed at any time, the Company shall select the
securities to be purchased on a pro rata basis (among the
Holders of the Notes and between the Notes and the Other
Notes, based upon the outstanding principal amount (and/or
Accreted Value, as applicable) thereof), with such
adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased. If less than all of
the Notes are to be redeemed at any time, selection of Notes
for redemption will be made by the Trustee in compliance
with the requirements of the principal national securities
exchange, if any, on which the Notes, or, if the Notes are
not so listed, on a pro rata basis (among the Notes of such
series only), by lot or by such method as the Trustee shall
deem fair and appropriate; provided that no Notes of $1,000
or less shall be redeemed in part. Notices of redemption
shall be mailed by first class mail at least 30 but not more
than 60 days before the redemption date to each Holder of
Notes to be redeemed at its registered address. Notices of
redemption may not be conditional. If any Note is to be
redeemed in part only, the notice of redemption that relates
to such Note shall state the portion of the principal amount
thereof to be redeemed. A new Note in principal amount
equal to the unredeemed portion thereof will be issued in
the name of the Holder thereof upon cancellation of the
original Note. Notes called for redemption become due on
the date fixed for redemption. On and after the redemption
date, interest ceases to accrue on Notes or portions of them
called for redemption.
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be
mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued
upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemp
tion ceases to accrue on and after the redemption date;
(g) the paragraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(h) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its
expense; provided, however, that the Company shall have
delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that
the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price.
One Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and
accrued interest on all Notes to be redeemed on that date.
The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to
pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date,
interest shall cease to accrue on the Notes or the portions
of Notes called for redemption. If a Note is redeemed on or
after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest
shall be paid to the Person in whose name such Note was
registered at the close of business on such record date. If
any Note called for redemption shall not be so paid upon
surrender for redemption because of the failure of the
Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01
hereof.
Section 3.06. Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company's written request,
the Trustee shall authenticate for the Holder at the expense
of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption.
(a) Except as described in clauses (b) and (c)
below, the Notes will not be redeemable at the Company's
option prior to June 15, 2002. Thereafter, the Notes will
be subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon,
if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on June 15 of the
years indicated below:
Year Percentage
2002 104.750%
2003 103.167%
2004 101.583%
2005 and thereafter 100.000%
(b) In addition, at any time and from time to
time, prior to June 15, 2000, the Company may redeem up to
35% of the original aggregate principal amount of Notes at a
redemption price of 110.5% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the redemption date, with the net cash
proceeds of a public offering of common stock of the
Company; provided that at least 65% of the original
aggregate principal amount of Notes remain outstanding
immediately after the occurrence of such redemption; and
provided, further, that such redemption shall occur within
60 days of the date of the closing of such public offering.
(c) At any time on or prior to June 15, 2002, the
of Notes may be redeemed as a whole but not in part at the
option of the Company upon the occurrence of a Change of
Control, upon not less than 30 nor more than 60 days' prior
notice (but in no event may any such redemption occur more
than 90 days after the occurrence of such Change of Control)
mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest and Liquidated Damages, if
any, to, the redemption date, subject to the right of
Holders on the relevant record date to receive interest due
on the relevant interest payment date.
Section 3.08. Mandatory Redemption.
Except as set forth under Sections 4.10 and 4.15
hereof and except pursuant to a Subsidiary Distribution
Offer, the Company shall not be required to make mandatory
redemption payments with respect to the Notes.
Section 3.09. Repurchase Offers.
(a) In the event that the Company shall be
required to commence an offer to all Holders to purchase
Notes (a "Repurchase Offer"), pursuant to Section 4.10
hereof (an "Excess Proceeds Offer"), or pursuant to Section
4.15 hereof (a "Change of Control Offer") the Company shall
follow the procedures specified below.
(i) Within 30 days after (A) a Change of Control
(unless (1) the Company is not required to make such offer
pursuant to Section 4.15(b) hereof or (2) all Notes have
been called for redemption pursuant to Section 3.07(c)
hereof) or (B) an Asset Sale Offer Triggering Event (as
defined), the Company shall (x) commence a Repurchase Offer,
which shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the
extent that a longer period is required by applicable law
(the "Offer Period") and (y) send, by first class mail, a
notice to the Trustee and each of the Holders which shall
contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to such Repurchase
Offer. The notice, which shall govern the terms of the
Repurchase Offer, shall describe the transaction or
transactions that constitute the Change of Control or Asset
Sale Offer Triggering Event, as the case may be, and shall
state:
(A) that the Repurchase Offer is being made
pursuant to this Section 3.09 and Section 4.10 or 4.15
hereof, as the case may be.
(B) the principal amount of Notes required
to be purchased pursuant to Section 4.10 hereof, in the
case of an Excess Proceeds Offer, or 4.15 hereof, in
the case of a Change of Control Offer (the "Offer
Amount"), the purchase price and, that on the date
specified in such notice (the "Purchase Date"), which
date shall be no earlier than 30 days and no later than
60 days from the date such notice is mailed and no
earlier than 5 days after the termination of the Offer
Period, the Company shall repurchase all Notes validly
tendered and not withdrawn pursuant to this Section
3.09 and 4.10 or 4.15, as applicable.
(C) that any Note not tendered or accepted
for payment shall continue to accrete or accrue
interest;
(D) that, unless the Company defaults in
making such payment, any Note accepted for payment
pursuant to the Repurchase Offer shall cease to accrue
interest after the Purchase Date;
(E) that Holders electing to have a Note
purchased pursuant to an Repurchase Offer may elect to
have all or any portion of such Note purchased;
(F) that Holders electing to have a Note
purchased pursuant to any Repurchase Offer shall be
required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of
the Note, or such other customary documents of
surrender and transfer as the Company may reasonably
request, duly completed, or transfer by book-entry
transfer, to the Company, the Depositary, or the Paying
Agent at the address specified in the notice at least
three days before the Purchase Date;
(G) that Holders shall be entitled to
withdraw their election if the Company, the Depositary
or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his
election to have such Note purchased;
(H) that, if the aggregate principal amount
and/or Accreted Value, as the case may be, of Notes and
Other Notes surrendered by Holders thereof exceeds the
Offer Amount, the Company shall select the securities
to be purchased on a pro rata basis (among the Holders
of the Notes and between the Notes and the Other Notes,
based upon the outstanding principal amount and/or
Accreted Value, as applicable, thereof), with such
adjustments as may be deemed appropriate by the Company
so that only Notes in denominations of $1,000, or
integral multiples thereof, shall be purchased; and
(I) that Holders whose Notes were purchased
only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry
transfer).
(J) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Notes.
(ii) On (or at the Company's election, before)
the Purchase Date, the Company shall, (A) to the extent
lawful, accept for payment, on a pro rata basis to the
extent necessary, the Notes or portions thereof tendered
pursuant to the Repurchase Offer and not theretofore
withdrawn, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the
Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09, (B) deposit
with the Paying Agent an amount equal to the Change of
Control Payment or Excess Proceeds Payment in respect of all
Notes or portions thereof so tendered and (C) deliver or
cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate
principal amount of Notes or portions thereof being
purchased by the Company. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in
any case not later than five days after the Purchase Date)
mail or deliver to each tendering Holder an amount equal to
Change of Control Payment or Excess Proceeds Payment, as
applicable, with respect to the Notes tendered by such
Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company shall authenticate and
mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note
surrendered, provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof.
Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. All Notes
or portions thereof purchased pursuant to the Repurchase
Offer will be cancelled by the Trustee. The Company shall
publicly announce the results of the Repurchase Offer on or
as soon as practicable after the Purchase Date, but in no
case more than five Business Days after the Purchase Date.
If the Company complies with the provisions of the
preceding paragraph, on and after the Purchase Date,
interest shall cease to accrue on the Notes or the portions
of Notes called for repurchase. If a Note is repurchased on
or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note
was registered at the close of business on such record date.
If any Note called for repurchase shall not be so paid upon
surrender for repurchase because of the failure of the
Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the Purchase
Date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01
hereof.
(b) If the Purchase Date is on or after an
interest record date and on or before the related interest
payment date, any accrued and unpaid interest shall be paid
to the Person in whose name a Note is registered at the
close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes
pursuant to the Repurchase Offer.
(c) The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations to the extent such
laws and regulations are applicable in connection with the
Repurchase Offer. To the extent that the provisions of any
applicable securities laws or regulations conflict with
provisions of this Section 3.09, the Company shall comply
with such securities laws and regulations and shall not be
deemed to have breached its obligations under this Section
by virtue thereof.
(d) Prior to complying with the provisions of
this Section 3.09, but in any event within 90 days following
a Change of Control or Asset Sale Offer Triggering Event, as
applicable, the Company shall either repay all outstanding
Senior Debt or obtain the requisite consents, if any, under
all agreements governing outstanding Senior Debt to permit
the repurchase of Notes required by this Section 3.09 and
Section 4.10 or 4.15, as applicable.
(e) Once notice of repurchase is mailed in
accordance with this Section 3.09, all Notes validly
tendered and not withdrawn (or if the Company is not
required to repurchase all of such Notes, then the pro rata
portion of such Notes that the Company may be required to
purchase pursuant to Section 3.02 and/or 4.10 hereof, as
applicable) become irrevocably due and payable on the
Purchase Date at the purchase price specified therein. A
notice of repurchase may not be conditional.
(f) Other than as specifically provided in this
Section 3.09 or Section 4.10 or 4.15, as applicable, any
purchase pursuant to this Section 3.09 shall be made
pursuant to the provisions of Sections 3.02 and 3.06 hereof.
Section 3.10. Subsidiary Distribution Offers.
(a) In the event that the Company shall be
required to commence a Subsidiary Distribution Offer, the
Company shall follow the procedures specified below.
(i) At least 20 Business Days prior to any
Subsidiary Distribution, the Company shall (x) commence a
Subsidiary Distribution Offer, which shall remain open for a
period of at least 20, but not to exceed 30, Business Days
following its commencement and no longer, except to the
extent that a longer period is required by applicable law
(the "Subsidiary Distribution Offer Period") and (y) send,
by first class mail, a notice to the Trustee and each of the
Holders which shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to
such Subsidiary Distribution Offer. The notice, which shall
govern the terms of the Subsidiary Distribution Offer, shall
describe the transaction or transactions that constitute the
Subsidiary Distribution and shall state:
(A) that the Subsidiary Distribution Offer
is being made pursuant to this Section 3.10 and
Section 4.07 hereof.
(B) the principal amount of Notes required
to be purchased pursuant to this Section 3.10, Section
4.07 and the definition of "Subsidiary Distribution"
(the "Subsidiary Distribution Offer Amount"), the
purchase price and, that on the date specified in such
notice (the "Subsidiary Distribution Offer Purchase
Date"), which date shall be no earlier than 30 days and
no later than 60 days from the date such notice is
mailed and no earlier than 5 days after the termination
of the Subsidiary Distribution Offer Period, the
Company shall repurchase all Notes validly tendered and
not withdrawn pursuant to this Section 3.10 and 4.07.
(C) that any Note not tendered or accepted
for payment shall continue to accrete or accrue
interest;
(D) that, unless the Company defaults in
making such payment, any Note accepted for payment
pursuant to the Subsidiary Distribution Offer shall
cease to accrue interest after the Subsidiary
Distribution Offer Purchase Date;
(E) that Holders electing to have a Note
purchased pursuant to an Subsidiary Distribution Offer
may elect to have all or any portion of such Note
purchased;
(F) that Holders electing to have a Note
purchased pursuant to any Subsidiary Distribution Offer
shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Note, or such other customary documents
of surrender and transfer as the Company may reasonably
request, duly completed, or transfer bybook-entry
transfer, to the Company, the Depositary, or the Paying
Agent at the address specified in the notice at least
three days before the Subsidiary Distribution Offer
Purchase Date;
(G) that Holders shall be entitled to
withdraw their election if the Company, the Depositary
or the Paying Agent, as the case may be, receives, not
later than the expiration of the Subsidiary
Distribution Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note
purchased;
(H) that, if the aggregate principal amount
and/or Accreted Value, as the case may be, of Notes and
Other Notes surrendered by Holders thereof exceeds the
Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (among the Holders of the
Notes and between the Notes and the Other Notes, based
upon the outstanding principal amount (or Accreted
Value, as applicable) thereof), with such adjustments
as may be deemed appropriate by the Company so that
only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased; and
(I) that Holders whose Notes were purchased
only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry
transfer).
(J) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Notes.
(ii) On (or at the Company's election, before)
the Subsidiary Distribution Offer Purchase Date, the Company
shall, (A) to the extent lawful, accept for payment, on a
pro rata basis to the extent necessary, the Notes or
portions thereof tendered pursuant to the Subsidiary
Distribution Offer and not theretofore withdrawn, or if less
than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of
this Section 3.10, (B) deposit with the Paying Agent an
amount equal to the Subsidiary Distribution Offer Payment in
respect of all Notes or portions thereof so tendered and
(C) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount, the Accreted Value)
of Notes or portions thereof being purchased by the Company.
The Company, the Depositary or the Paying Agent, as the case
may be, shall promptly (but in any case not later than five
days after the Subsidiary Distribution Offer Purchase Date)
mail or deliver to each tendering Holder an amount equal to
the Subsidiary Distribution Offer Payment of the Notes
tendered by such Holder and accepted by the Company for
purchase, and the Company shall promptly issue a new Note,
and the Trustee, upon written request from the Company shall
authenticate and mail or deliver such new Note to such
Holder, in a principal amount at maturity equal to the
principal amount at maturity of any unpurchased portion of
the Note surrendered, provided that each such new Note shall
be in a principal amount at maturity of $1,000 or an
integral multiple thereof. Any Note not so accepted shall
be promptly mailed or delivered by the Company to the Holder
thereof. All Notes or portions thereof purchased pursuant
to the Subsidiary Distribution Offer will be cancelled by
the Trustee. The Company shall publicly announce the
results of the Subsidiary Distribution Offer on or as soon
as practicable after the Subsidiary Distribution Offer
Purchase Date, but in no case more than five Business Days
after the Subsidiary Distribution Offer Purchase Date.
If the Company complies with the provisions of the
preceding paragraph, on and after the Subsidiary
Distribution Offer Purchase Date, interest shall cease to
accrue on the Notes or the portions of Notes called for
repurchase. If a Note is repurchased on or after an
interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at
the close of business on such record date. If any Note
called for repurchase shall not be so paid upon surrender
for repurchase because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid
on the unpaid principal, from the Subsidiary Distribution
Offer Purchase Date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
(b) If the Subsidiary Distribution Offer Purchase
Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and
no additional interest shall be payable to Holders who
tender Notes pursuant to the Subsidiary Distribution Offer.
(c) The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations to the extent such
laws and regulations are applicable in connection with the
Subsidiary Distribution Offer. To the extent that the
provisions of any applicable securities laws or regulations
conflict with provisions of this Section 3.10, the Company
shall comply with such securities laws and regulations and
shall not be deemed to have breached its obligations under
this Section by virtue thereof.
(d) Prior to complying with the provisions of
this Section 3.10, but in any event prior to any Subsidiary
Distribution, the Company shall either repay all outstanding
Senior Debt or obtain the requisite consents, if any, under
all agreements governing outstanding Senior Debt to permit
the repurchase of Notes required by this Section 3.10, and
Section 4.07 and the definition of "Subsidiary
Distribution".
(e) Other than as specifically provided in this
Section 3.10, any purchase pursuant to this Section 3.10
shall be made pursuant to the provisions of Sections 3.01
through 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
The Company shall pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on
the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by the Company
in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and
interest then due. The Company shall pay all Liquidated
Damages, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy
Code) on overdue principal at the rate equal to 1% per annum
in excess of the then applicable interest rate on the Notes
to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any
Bankruptcy Code) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of
Manhattan, the City of New York, an office or agency (which
may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served. The Company
shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate
one or more other offices or agencies where the Notes may be
presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, the City of
New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the
Company in accordance with Section 2.03.
Section 4.03. Reports.
Whether or not required by the rules and
regulations of the SEC, so long as any Notes are
outstanding, the Company shall furnish to the Holders of
Notes (i) all quarterly and annual financial information
that would be required to be contained in a filing with the
SEC on Forms 10-Q and 10-K if the Company were required to
file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries
and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants
and (ii) all current reports that would be required to be
filed with the SEC on Form 8-K if the Company were required
to file such reports, in each case, within 15 days after the
Company would be required to file such information in
accordance with the time periods specified in the SEC's
rules and regulations. In addition, commencing after the
consummation of the Exchange Offer, whether or not required
by the rules and regulations of the SEC, the Company shall
file a copy of all such information and reports with the SEC
for public availability (unless the SEC will not accept such
a filing) within the time periods specified in the SEC's
rules and regulations. In addition, the Company has agreed
that, for so long as any Notes remain outstanding, it shall
furnish to the Holders upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
Section 4.04. Compliance Certificate.
(a) The Company shall deliver to the Trustee,
within 90 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of
the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best
of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and what
action the Company is taking or proposes to take with
respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified
Public Accountants, the year-end financial statements
delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of
established national reputation) that in making the
examination necessary for certification of such financial
statements, nothing has come to their attention that would
lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof or, if any such
violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith
upon any Officer becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as
are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse
in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws.
The Company and the Guarantors covenant (to the
extent that they may lawfully do so) that they shall not at
any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company and the
Guarantors (to the extent that they may lawfully do so)
hereby expressly waive all benefit or advantage of any such
law, and covenant that they shall not, by resort to any such
law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit
the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments.
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or
distribution (including, without limitation, any payment in
connection with any merger or consolidation) on account of
the Company's or any of its Restricted Subsidiaries' Equity
Interests (other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the
Company); (ii) purchase, redeem or otherwise acquire or
retire for value (including without limitation, in
connection with any merger or consolidation) any Equity
Interests of the Company or any direct or indirect parent of
the Company; (iii) make any payment on or with respect to,
or purchase, redeem, defease or otherwise acquire or retire
for value any Indebtedness that is subordinated to the
Notes, except (A) a payment of interest or principal at
Stated Maturity and (B) the purchase, repurchase or other
acquisition or retirement of Indebtedness in anticipation of
satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the
date of purchase, repurchase or other acquisition or
retirement; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect
to such Restricted Payment:
(a) no Default or Event of Default shall have
occurred and be continuing or would occur as a
consequence thereof; and
(b) the Company would, at the time of such
Restricted Payment and after giving pro forma effect
thereto as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made
by the Company and its Restricted Subsidiaries after
the date hereof (excluding Restricted Payments
permitted by the next succeeding paragraph), is less
than the sum (without duplication) of (i) 50% of the
Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the date
hereof to the end of the Company's most recently ended
fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit), plus (ii) 100%
of the aggregate net cash proceeds received by the
Company from the issue or sale (other than to a
Subsidiary) since the date hereof of, or from capital
contributions with respect to, Equity Interests of the
Company (other than Disqualified Stock), plus (iii) the
aggregate principal amount (or accreted value, if less)
of Indebtedness of the Company or any Restricted
Subsidiary issued since the date hereof (other than to
a Subsidiary) that has been converted into Equity
Interests (other than Disqualified Stock) of the
Company, plus (iv) 100% of the aggregate net cash
received by the Company or a Restricted Subsidiary of
the Company since the date hereof from (A) Restricted
Investments, whether through interest payments,
principal payments, dividends or other distributions
and payments, or the sale or other disposition (other
than to the Company or a Restricted Subsidiary) thereof
made by the Company and its Restricted Subsidiaries or
(B) a cash dividend from, or the sale (other than to
the Company or a Restricted Subsidiary) of the stock
of, an Unrestricted Subsidiary, plus (v) upon the
redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of the
Investments of the Company and its Restricted
Subsidiaries (other than such Subsidiary) in such
Subsidiary.
The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at said date of
declaration such payment would have complied with the
provisions of this Indenture;
(ii) (A) the redemption, repurchase, retirement,
defeasance or other acquisition of any Equity Interests or
subordinated Indebtedness of the Company in exchange for, or
out of the net cash proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary of the Company)
of, other Equity Interests of, or a capital contribution to,
the Company (other than any Disqualified Stock); provided
that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from
clause (c) (ii) of the preceding paragraph;
(iii) the defeasance, redemption, repurchase,
retirement or other acquisition of subordinated Indebtedness
made by an exchange for, or with the net cash proceeds from
an incurrence of, Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its common
Equity Interests on a pro rata basis;
(v) to the extent constituting Restricted
Payments, the Specified Affiliate Payments;
(vi) the Subsidiary Distribution; and
(vii) payments that would otherwise be Restricted
Payments in an aggregate amount not to exceed $10.0 million.
The Board of Directors may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if
such designation would not cause a Default. For purposes of
making such determination, all outstanding Investments by
the Company and its Restricted Subsidiaries (except to the
extent repaid in cash) in the Subsidiary so designated shall
be deemed to be Restricted Payments at the time of such
designation and shall reduce the amount available for
Restricted Payments under the first paragraph of this
Section 4.07. The amount of such outstanding Investments
shall be equal to the portion 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 that is represented by the interest of the
Company and its Restricted Subsidiaries in such Subsidiary,
in each case as determined in good faith by the Board of
Directors of the Company. Such designation shall only be
permitted if such Restricted Payment would be permitted at
such time and if such Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than
cash) shall be the fair market value on the date of the
Restricted Payment of the asset(s) or securities proposed to
be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any non-cash Restricted
Payment shall be determined in good faith by the Board of
Directors of the Company.
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries.
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (i)(a) pay dividends
or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or
measured by, its profits, or (b) pay any indebtedness owed
to the Company or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Company or any of its
Restricted Subsidiaries or (iii) transfer any of its
properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (a) Existing Indebtedness as
in effect on the date hereof, (b) the provisions of security
or pledge agreements (or similar agreements) restricting
transfers of the assets secured thereby, (c) this Indenture,
the Notes and the Subsidiary Guarantees, (d) any agreement
or other instrument of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time
of such acquisition (but not created in connection with or
in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, (e) by
reason of customary non-assignment provisions in leases
entered into in the ordinary course of business, (f)
purchase money obligations (including Capital Lease
Obligations) for property acquired in the ordinary course of
business that impose restrictions of the nature described in
clause (iii) above on the property so acquired, (g)
restrictions created in connection with any Receivables
Facility that, in the good faith determination of the Board
of Directors or senior management of the Company, are
necessary or advisable to effect such Receivables Facility,
(h) in the case of clause (iii), any encumbrance or
restriction (1) that restricts in a customary manner the
subletting, assignment, or transfer of any property or asset
that is subject to a lease, license or similar contract, (2)
by virtue of any transfer of, agreement to transfer, option
or right with respect to, or Lien on, any property or assets
of the Company or any Restricted Subsidiary not otherwise
prohibited by this Indenture or (3) contained in security
agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such encumbrance or
restrictions restrict the transfer of the property subject
to such security agreements or mortgages, (i) contracts for
the sale of assets, including, without limitation, any
restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or
disposition of all or substantially all of the Capital Stock
or assets of such Restricted Subsidiary pending the closing
of such sale or disposition, (j) contractual encumbrances or
restrictions in effect on the date hereof, including,
without limitation, pursuant to the Senior Credit Facility
and its related documentation, (k) restrictions on cash or
other deposits or net worth imposed by leases, credit
agreements or other agreements entered into in the ordinary
course of business, (l) customary provisions in joint
venture agreements and other similar agreements, (m) any
encumbrances or restrictions created with respect to
Indebtedness of Restricted Subsidiaries permitted to be
incurred subsequent to the date hereof pursuant to the
provision of Section 4.09 hereof and (n) any encumbrances or
restrictions of the type referred to in clauses (i), (ii)
and (iii) imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (a) through (n),
provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements
or refinancings are, in the good faith judgment of the
Company, no more restrictive with respect to such dividend
and other payment restrictions than those contained in the
dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock.
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness
(including Acquired Debt) and that the Company shall not
issue any Disqualified Stock and shall not permit any of its
Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company and its
Restricted Subsidiaries may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock and the
Restricted Subsidiaries may issue preferred stock, if the
Fixed Charge Coverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have
been at least 1.75 to 1, if such Indebtedness is incurred or
such Disqualified Stock or preferred stock is issued on or
prior to June 30, 1999, and 2.00 to 1, if such Indebtedness
is incurred or such Disqualified Stock or preferred stock is
issued thereafter, in each case, determined on a pro forma
basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or preferred stock had
been issued, as the case may be, at the beginning of such
four-quarter period.
The provisions of the first paragraph of this
Section 4.09 will not apply to the incurrence of any of the
following items of Indebtedness (collectively, "Permitted
Debt"):
(i) the incurrence by the Company of term and
revolving Indebtedness and letters of credit (with letters
of credit being deemed to have a principal amount equal to
the undrawn face amount thereof) under Credit Facilities;
provided that the aggregate principal amount of such
Indebtedness after giving effect to such incurrence,
including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any other Indebtedness incurred
pursuant to this clause (i), does not exceed an amount equal
to $300.0 million less (A) the aggregate amount of any Net
Proceeds of Asset Sales that have been applied since the
date hereof to repay Indebtedness incurred under this clause
(i) (or any such Permitted Refinancing Indebtedness)
pursuant to clause (a) of the first sentence of the second
paragraph of Section 4.10 hereof and less (B) subsequent to
any Subsidiary Distribution, an amount equal to the product
of (1) the maximum amount of Indebtedness otherwise
permitted to be outstanding under the terms of this clause
(i) at the date of such Subsidiary Distribution and (2) a
fraction, the numerator of which shall be (x) the
Consolidated Cash Flow of the Company and all of its
Restricted Subsidiaries (including the Distributed
Subsidiary) for the four full fiscal quarters immediately
preceding such Subsidiary Distribution minus (y) the
Consolidated Cash Flow of the Company and its remaining
Restricted Subsidiaries for such four-quarter reference
period, calculated giving pro forma effect to such
Subsidiary Distribution, and the denominator of which shall
be the Consolidated Cash Flow of the Company and all of its
Restricted Subsidiaries (including the Distributed
Subsidiary) for such four-quarter reference period;
(ii) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness
represented by the Notes and by the Guarantors of
Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its
Restricted Subsidiaries of (A) Acquired Debt or (B)
Indebtedness (including Capital Lease Obligations) for the
purpose of financing or refinancing all or any part of the
lease, purchase price or cost of construction or improvement
of any property (real or personal) or other assets that are
used or useful in the business of the Company or such
Restricted Subsidiary (whether through the direct purchase
of assets or the Capital Stock of any Person owning such
assets and whether such Indebtedness is owed to the seller
or Person carrying out such construction or improvement or
to any third party), in an aggregate principal amount at the
date of such incurrence (including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any
other Indebtedness incurred pursuant to this clause (iv))
not to exceed an amount equal to 10.0% of Total Assets;
provided that, in the case of Indebtedness exceeding $2.0
million incurred pursuant to this clause (iv), such
Indebtedness exists at the date of such purchase or
transaction or is created within 180 days thereafter;
(v) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which
are used to refund, refinance or replace Indebtedness (other
than intercompany Indebtedness) that was permitted by this
Indenture to be incurred;
(vi) the incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness between
or among the Company and any of its Restricted Subsidiaries,
including, without limitation, any Indebtedness arising in
connection with a Receivables Facility; provided, however,
that (A) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held
by a Person other than the Company or a Restricted
Subsidiary and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company
or such Restricted Subsidiary, as the case may be that was
not permitted by this clause (vi);
(vii) the incurrence by the Company or any of its
Restricted Subsidiaries of Hedging Obligations that are
incurred (A) for the purpose of fixing or hedging interest
rate risk with respect to any floating rate Indebtedness
that is permitted by the terms of this Indenture to be
outstanding or (B) for the purpose of fixing or hedging
currency exchange rate risk incurred in the ordinary course
of business;
(viii) the guarantee by the Company or any of the
Guarantors of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred
by another provision of this Section 4.09;
(ix) the incurrence of Indebtedness secured by
Receivables, provided that the aggregate principal amount of
such Indebtedness incurred pursuant to this clause (ix) does
not, at any time, exceed an amount equal to $100.0 million
less the aggregate Receivable Financing Amount of all
Receivables Facilities of the Company and its Restricted
Subsidiaries;
(x) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness under (or
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; provided, however,
that upon the drawing of such letters of credit, such
obligations are reimbursed within 30 days following such
drawing;
(xi) the incurrence by the Company or any of its
Restricted Subsidiaries of additional Indebtedness (which
may comprise Indebtedness under the Senior Credit Facility)
in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or
replace any other Indebtedness incurred pursuant to this
clause (xi), not to exceed an amount equal to $30.0 million.
For purposes of determining compliance with Section
4.09, in the event that an item of Indebtedness meets the
criteria of more than one of the categories of Permitted
Debt described in clauses (i) through (xi) above or is
entitled to be incurred pursuant to the first paragraph of
this Section 4.09, the Company shall, in its sole
discretion, classify such item of Indebtedness in any manner
that complies with this Section 4.09 and such item of
Indebtedness will be treated as having been incurred
pursuant to only one of such clauses or pursuant to the
first paragraph hereof; provided that all outstanding
Indebtedness under the Senior Credit Facility immediately
following the Recapitalization shall be deemed to have been
incurred pursuant to clause (i) of the definition of
Permitted Debt. Accrual of interest and the accretion of
accreted value will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.09.
Section 4.10. Asset Sales.
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) the Company (or the Restricted Subsidiary, as the
case may be) receives consideration at the time of such
Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise
disposed of and (ii) at least 75% of the consideration
therefor received by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents;
provided that the amount of (x) any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent
balance sheet), of the Company or any Restricted Subsidiary
(other than liabilities that are by their terms subordinated
to the Notes or, in the case of liabilities of a Restricted
Subsidiary, the Subsidiary Guarantee of such Subsidiary)
that are assumed by the transferee of any such assets and
(y) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash
received) within 180 days after receipt, shall be deemed to
be cash for purposes of this provision; provided further,
however, that this clause (ii) shall not apply to any sale
of interests in Unrestricted Subsidiaries.
Within 360 days after the receipt of any Net
Proceeds from an Asset Sale, the Company may apply such Net
Proceeds, at its option, (a) to repay Senior Debt or Pari
Passu Indebtedness (provided that if the Company shall so
reduce Pari Passu Indebtedness, it shall equally and ratably
make an Asset Sale Offer (in accordance with the procedures
set forth below for an Asset Sale Offer) to all Holders),
(b) to invest properties and assets that will be used or
useful in the business of the Company or any of its
Subsidiaries or (c) to the acquisition of a controlling
interest in another business, the making of a capital
expenditure or the acquisition of other assets, in each
case, in the same or a similar line of business as the
Company was engaged in on the date hereof. Pending the
final application of any such Net Proceeds, the Company may
temporarily reduce borrowings under a Credit Facility or
otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the
first sentence of this paragraph will be deemed to
constitute "Excess Proceeds." When the aggregate amount of
Excess Proceeds exceeds $5.0 million, the Company shall (i)
make an offer to all Holders of Notes, and (ii) prepay,
purchase or redeem (or make an offer to do so) any other
Pari Passu Indebtedness of the Company in accordance with
provisions requiring the Company to prepay, purchase or
redeem such Indebtedness with the proceeds from any asset
sales (or offer to do so), pro rata in proportion to the
respective principal amounts (or accreted value, as
applicable) of the Notes and such other Indebtedness
required to be prepaid, purchased or redeemed or tendered
for pursuant to such offer (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds (the "Excess Proceeds
Amount"), at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date
of purchase, in accordance with the procedures set forth in
Section 3.09 hereof. To the extent that the aggregate
principal amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, the Company may use
any remaining Excess Proceeds for general corporate
purposes. Upon completion of such offer to purchase, the
amount of Excess Proceeds shall be reset at zero.
Section 4.11. Transactions with Affiliates.
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets
from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each
of the foregoing, an "Affiliate Transaction"), unless (i)
such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company
delivers to the Trustee (a) with respect to any Affiliate
Transaction entered into after the date hereof involving
aggregate consideration in excess of $3.0 million, a
resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the
members of the Board of Directors and (b) with respect to
any Affiliate Transaction involving aggregate consideration
in excess of $10.0 million, an opinion as to the fairness to
the Holders of such Affiliate Transaction from a financial
point of view issued by an investment banking, appraisal or
accounting firm of national standing. In addition, the
following will not be deemed to be Affiliate Transactions:
(1) the provision of administrative or management services
by the Company or any of its officers to any of its
Restricted Subsidiaries in the ordinary course of business,
(2) any employment agreement, collective bargaining
agreement, employee benefit plan, related trust agreement or
any similar arrangement heretofore or hereafter entered into
in the ordinary course of business, (3) transactions between
or among the Company and/or its Restricted Subsidiaries, (4)
Restricted Payments that are permitted by Section 4.07
hereof (other than clause (viii) of the second paragraph
thereof), (5) payment of compensation to employees,
officers, directors or consultants in the ordinary course of
business, (6) maintenance in the ordinary course of business
(and payments required thereby) of benefit programs, or
arrangements for employees, officers or directors, including
vacation plans, health and life insurance plans, deferred
compensation plans, directors' and officers' indemnification
agreements and retirement or savings plans and similar
plans, (7) loans or advances to employees (or guarantees of
third party loans to employees) in the ordinary course of
business, (8) sales of Receivables to a Receivables
Subsidiary, (9) the payment of annual management, consulting
and advisory fees and related expenses to Investcorp and its
Affiliates (whether or not such Persons are Affiliates of
the Company), (10) payments by the Company or any of its
Restricted Subsidiaries to Investcorp and its Affiliates
(whether or not such Persons are Affiliates of the Company)
made for any financial advisory, financing, underwriting or
placement services or in respect of other investment banking
activities, including, without limitation, in connection
with acquisitions or divestitures, which payments are
approved by the Board of Directors of the Company in good
faith, (11) any agreement as in effect as of the date hereof
or any amendment thereto (so long as any such amendment is
not disadvantageous to the Holders in any material respect)
or any transaction contemplated thereby, (12) the payment of
all fees and expenses related to the Merger and the
Recapitalization, (13) transactions with customers, clients,
suppliers, or purchasers or sellers of goods or services, in
each case in the ordinary course of business and otherwise
in compliance with the terms of this Indenture which are
fair to the Company or its Restricted Subsidiaries, in the
reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at
such time from an unaffiliated party, (14) the existence of,
or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any
stockholders agreement (including any registration rights
agreement or purchase agreement related thereto) to which it
is a party as of the date hereof, any amendments thereto and
any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance
by the Company or any of its Restricted Subsidiaries of
obligations under any such future amendment to any such
existing agreement or under any such similar agreement
entered into after the date hereof shall only be permitted
by this clause (14) to the extent that the terms of any such
amendment or new agreement are not more disadvantageous to
the Holders in any material respect than those in effect on
the date hereof, and (15) Indebtedness permitted by
paragraph (vi) or, to the extent such Indebtedness is on
terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction with an unrelated
Person, paragraph (xi) of Section 4.09 hereof.
Section 4.12. Liens.
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, create, incur, assume or
otherwise cause or suffer to exist or become effective any
Lien of any kind securing Indebtedness or trade payables
(other than Permitted Liens) upon any of their property or
assets, now owned or hereafter acquired, unless all payments
due under this Indenture and the Notes are secured on an
equal and ratable basis with the obligations so secured
until such time as such obligations are no longer secured by
a Lien.
Section 4.13. Business Activities.
The Company shall not, and shall not permit any
Restricted Subsidiary to, engage in any business other than
Permitted Businesses, except to such extent as is not
material to the Company and its Restricted Subsidiaries
taken as a whole.
Section 4.14. Corporate Existence.
Subject to Article 5 hereof, the Company shall do
or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence,
and the corporate, partnership or other existence of each of
its Subsidiaries, in accordance with the respective organ
izational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of
the Company and its Subsidiaries; provided, however, that
the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board
of Directors shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the
Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the
Holders of the Notes.
section 4.15. Offer to Repurchase Upon Change of Control.
(a) Upon the occurrence of a Change of Control,
unless all Notes have been called for redemption pursuant to
Section 3.07(c), each Holder of Notes will have the right to
require the Company to, pursuant to the procedures required
by Section 3.09 hereof, repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's
Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash (the "Change of
Control Payment") equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase.
(b) The Company shall not be required to make a
Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements
set forth in Section 3.09 and purchases all Notes validly
tendered and not withdrawn under such Change of Control
Offer.
Section 4.16. No Senior Subordinated Debt.
(i) The Company shall not incur any Indebtedness
that is subordinate or junior in right of payment to any
Senior Debt and senior in any respect in right of payment to
the Notes and (ii) no Guarantor shall incur any Indebtedness
that is subordinate or junior in right of payment to the
Senior Debt and senior in any respect in right of payment to
the Subsidiary Guarantees.
Section 4.17. Subsidiary Guarantees.
All current and future Subsidiaries of the Company
substantially all of whose assets are located in the United
States or that conduct substantially all of their business
in the United States, other than Subsidiaries that have been
properly been designated as Unrestricted Subsidiaries in
accordance with this Indenture for so long as they continue
to constitute Unrestricted Subsidiaries, shall be Guarantors
in accordance with the terms of this Indenture. If the
Company or any of its Restricted Subsidiaries shall acquire
or create another Subsidiary after the date hereof or
designate an Unrestricted Subsidiary to be a Subsidiary,
then such newly acquired, created or designated Subsidiary,
if substantially all of such Subsidiary's assets are located
in the United States or such Subsidiary conducts
substantially all of its business in the United States,
shall execute a Supplemental Indenture in substantially the
form as Exhibit C hereof and deliver an Opinion of Counsel,
in accordance with Section 12.05 hereof, provided, that this
Section 4.17 shall not apply to (i) any Subsidiary that has
been properly designated as an Unrestricted Subsidiary in
accordance with this Indenture for so long as it continues
to constitute an Unrestricted Subsidiary and (ii) any
Subsidiary of the Company substantially all of such
Subsidiary's assets are not located in the United States and
that does not conduct substantially all of its business in
the United States. Each Subsidiary Guarantee shall be
limited in amount to an amount not to exceed the maximum
amount that can be Guaranteed by that Subsidiary without
rendering the Subsidiary Guarantee, as it relates to such
Subsidiary, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of all or
Substantially all Assets.
The Company shall not consolidate or merge with or
into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to
another Person unless (i) the Company is the surviving
corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation
organized or existing under the laws of the United States,
any state thereof or the District of Columbia; (ii) the
Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which
such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations
of the Company under the Notes and this Indenture pursuant
to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (iii) immediately after such
transaction no Default or Event of Default exists; and
(iv) except in the case of a merger of the Company with or
into a Wholly Owned Restricted Subsidiary of the Company,
the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made will, at the time of
such transaction and after giving pro forma effect thereto
as if such transaction had occurred at the beginning of the
applicable four-quarter period, either (x) be permitted to
incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof or (y) have a Fixed Charge
Coverage Ratio at least equal to the Fixed Charge Coverage
Ratio of the Company for such four-quarter reference period.
The foregoing provisions shall not apply to the Merger or
the Subsidiary Distribution. Notwithstanding the foregoing
clauses (iii) and (iv), (a) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its
properties and assets to the Company, and (b) the Company
may merge with an Affiliate incorporated solely for the
purpose of reincorporating the Company in another
jurisdiction.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition
of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with
which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition
is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of
this Indenture referring to the "Company" shall refer
instead to the successor corporation and not to the
Company), and may exercise every right and power of the
Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be
relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section
5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
Each of the following constitutes an Event of
Default:
(a) default for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the
Notes (whether or not prohibited by Article 10 hereof);
(b) default in payment when due of the principal
of or premium, if any, on the Notes (whether or not
prohibited by Article 10 hereof);
(c) failure by the Company for 30 days after
notice to comply with the provisions described under
Sections 4.07, 4.09, 4.10, 4.15 or 5.01;
(d) failure by the Company for 60 days after
notice to comply with any of its other agreements in this
Indenture or the Notes;
(e) the failure by the Company or any Restricted
Subsidiary that is a Significant Subsidiary to pay any
Indebtedness within any applicable grace period after final
maturity or acceleration by the holders thereof because of a
default if the total amount of such Indebtedness unpaid or
accelerated exceeds $20.0 million;
(f) failure by the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary to
pay final non-appealable judgments aggregating in excess of
$20.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days;
(g) except as permitted by this Indenture, any
Subsidiary Guarantee by a Guarantor that is a Significant
Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm
its obligations under its Subsidiary Guarantee;
(h) if, the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary, pursuant to
or within the meaning of Bankruptcy Code:
(i) commences a voluntary
case,
(ii) consents to the entry of an order
for relief against it in an involuntary case,
(iii) consents to the appointment of
a Custodian of it or for all or substantially all
of its property,
(iv) makes a general assignment for the
benefit of its creditors, or
(v) generally is not paying its debts as
they become due; or
(i) if a court of competent jurisdiction enters an
order or decree under any Bankruptcy Code that:
(i) is for relief against the Company
or any of its Restricted Subsidiaries that is a
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company
or any of its Restricted Subsidiaries that is a
Significant Subsidiary or for all or substantially
all of the property of the Company or any of its
Restricted Subsidiaries that is a Significant
Subsidiary; or
(iii) orders the liquidation of the
Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary;
and the order or decree remains unstayed and
in effect for 60 consecutive days.
Section 6.02. Acceleration.
(a) If any Event of Default occurs and is
continuing, the Note Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of
Default arising from Section 6.01(h) or (i) all outstanding
Notes will become due and payable without further action or
notice. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except
a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding
notice is in their interest.
(b) The Holders of a majority in aggregate
principal amount of the then outstanding Notes by notice to
the Trustee may rescind any declaration of acceleration of
such Notes and its consequences if the rescission would not
conflict with any judgment or decree and if all existing
Defaults and Events of Default (other than the nonpayment of
principal of, or premium, if any, or interest on, the Notes
which shall have become due by such declaration) shall have
been cured or waived.
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, premium, if any, and interest on the
Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them
in the proceeding. A delay or omission by the Trustee or
any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent
permitted by law.
Section 6.04. Waiver of Past Defaults.
The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes
waive any existing Default or Event of Default and its
consequences under this Indenture except a continuing
Default or Event of Default in the payment of interest on,
or the principal of, the Notes. Upon any such waiver, such
Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; provided that no such
waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon.
Section 6.05. Control by Majority.
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy avail
able to the Trustee or exercising any trust or power con
ferred on it by this Indenture. However, the Trustee may
refuse to follow any direction that conflicts with law or
this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes, it
being understood that (subject to Section 7.01) the Trustee
shall have no duty to conduct an independent investigation
to ascertain whether or not such actions or forebearances
are unduly prejudicial to such Holders, or that may involve
the Trustee in personal liability.
Section 6.06. Limitation on Suits.
A Holder of a Note may pursue a remedy with respect to
this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee
written notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount
of the then outstanding Notes make a written request to
the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in principal amount of the then outstanding
Notes do not give the Trustee a direction inconsistent
with the request.
A Holder of a Note may not use this Indenture to prejudice
the rights of another Holder of a Note or to obtain a
preference or priority over another Holder of a Note.
Holders of the Notes may not enforce this Indenture or the
Notes, except as provided herein.
Section 6.07. Rights of Holders of Notes to Receive
Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of
principal, premium and Liquidated Damages, if any, and
interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer
to purchase), 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 specified in Section 6.01(a) or
(b) occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on the Notes and interest on
overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Holders of the Notes allowed in
any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or
deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall
be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be
entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this
Article 6, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of
all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and Liquidated
Damages, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for
any payment to Holders of Notes pursuant to this Section
6.10.
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 a Trustee,
a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the
costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 6.11 does
not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.06 hereof, or a suit by Holders
of more than 10% in principal amount of the then outstanding
Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same
degree of care and skill in its exercise, as a prudent man
would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and
the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) 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.
(c) The Trustee may not be relieved from liabilities
for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), and (c) of
this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any
liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture
at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory
to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to
the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any
document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action
it takes or omits to take in good faith that it believes to
be authorized or within the rights or powers conferred upon
it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company or any Guarantor shall be sufficient if signed by an
Officer of the Company or such Guarantor.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee
security or indemnity reasonable to it against the costs,
expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(g) The Trustee shall not be required to give any
bond or surety in respect of the performance of its powers
and duties hereunder.
(h) 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 and shall be entitled in
connection herewith to examine the books, records and
premises of the Company, during reasonable business hours
and subject to executing a confidentiality undertaking in
customary form and with respect to confidential information
and/or proprietary information of the Company.
(i) The permissive rights of the Trustee to do
things enumerated in this Indenture shall not be construed
as a duty.
(j) Except for (i) a default under Sections 6.01(a)
or (b) hereof, or (ii) any other event of which the Trustee
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 any Holder of the Securities then outstanding; as
used herein, the term "actual knowledge" means the actual
fact or statement 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 Notes and may otherwise
deal with the Company, the Guarantors or any Affiliate of
the Company or the Guarantors with the same rights it would
have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. 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 Notes, it shall not be accountable for the
Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible
for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any
statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture
other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is
continuing and if the Trustee has actual knowledge of such
Default or Event of Default, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of
the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the
May 15 following the date hereof and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA
Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to
the Holders of Notes shall be mailed to the Company and
filed with the SEC and each stock exchange on which the
Notes are listed in accordance with TIA Section 313(d). The
Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
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 acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to
the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any
and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and investigating
or defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its
negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not
be unreasonably withheld.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this
Indenture.
To secure the Company's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(g) or
(h) hereof occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administra
tion under any Bankruptcy Code.
The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appoint
ment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal
amount of the then outstanding Notes may remove the Trustee
by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Code;
(c) a Custodian or public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company, or the Holders of Notes of at
least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of
a Note who has been a Holder of a Note for at least six
months, fails to comply with Section 7.10, such Holder of a
Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the
Company. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders of the Notes.
The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all
sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring
Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that
is a corporation organized and doing business under the laws
of the United States of America or of any state thereof that
is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital
and surplus of at least $100 million as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and
(5). The Trustee is subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against
Company.
The Trustee is subject to TIA Section 311(a),
excluding any creditor relationship listed in TIA
Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of
Directors evidenced by a resolution set forth in an
Officers' Certificate, at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in
this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.02, the Company
shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter
be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all
its other obligations under such Notes and this Indenture
(and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof,
and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest
on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.10 and 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance
with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, the Company
shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be released from its
obligations under Sections 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.15, 4.16 and 4.17 hereof with respect to the
outstanding Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such
Sections, but shall continue to be deemed "outstanding" for
all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such
Section, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason
of any reference in any such Section to any other provision
herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's
exercise under Section 8.01 hereof of the option applicable
to this Section 8.03 hereof, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, Sections
6.01(d) through 6.01(f) hereof shall not constitute Events
of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application
of either Section 8.02 or 8.03 hereof to the outstanding
Notes:
In order to exercise either Legal Defeasance or
Covenant Defeasance:
(a) the Company must irrevocably deposit with
the Trustee, in trust, for the benefit of the Holders,
cash in United States dollars, non-callable Government
Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to
pay the principal of, premium and Liquidated Damages,
if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable
redemption date, as the case may be;
(b) in the case of an election under Section
8.02 hereof, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that
(A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or
(B) since the date hereof, there has been a change in
the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
Legal Defeasance had not occurred;
(c) in the case of an election under Section
8.03 hereof, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that
the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting
from the incurrence of Indebtedness all or a portion
of the proceeds of which will be used to defease the
Notes pursuant to this Article 8 concurrently with
such incurrence) or insofar as Sections 6.01(h) or
6.01(i) hereof is concerned, at any time in the period
ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant
Defeasance shall not result in a breach or violation
of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to
which the Company or any of its Subsidiaries is a
party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company or the Guarantors shall have
delivered to the Trustee an Opinion of Counsel,
subject customary assumptions and exclusions, to the
effect that after the 91st day following the deposit,
the trust funds will not be part of any "estate"
formed by the bankruptcy or reorganization of the
Company or subject to the "automatic stay" under the
Bankruptcy Code;
(g) the Company shall have delivered to the
Trustee an Officers' Certificate stating that the
deposit was not made by the Company with the intent of
preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the
Company; and
(h) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for or relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous
Provisions.
Subject to Section 8.06 hereof, all money and non-
callable Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.
Anything in this Article 8 to the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it
as provided in Section 8.04 hereof which, in the opinion of
a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered
under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment
of the principal of, premium and Liquidated Damages, if any,
or interest on any Note and remaining unclaimed for two
years after such principal, premium and Liquidated Damages,
if any, or interest has become due and payable shall be paid
to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder
of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of
the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the
Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities
in accordance with Section 8.02 or 8.03 hereof, as the case
may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations
under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may
be; provided, however, that, if the Company or any Guarantor
makes any payment of principal of, premium and Liquidated
Damages, if any, or interest on any Note following the
reinstatement of its obligations, the Company and such
Guarantor shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the
Company and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder of
a Note:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(iii) to provide for the assumption of the Company's or
any Guarantor's obligations to Holders of Notes in the case
of a merger, consolidation or sale of assets;
(iv) to release any Subsidiary Guarantee in accordance
with the provisions of this Indenture (including in
connection with a Subsidiary Distribution);
(v) to provide for additional Guarantors;
(vi) to make any change that would provide any additional
rights or benefits to the Holders of Notes or that does not
adversely affect the legal rights under this Indenture of
any such Holder; or
(vii) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under
the TIA.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the
execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and
to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities
under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the
Company and the Trustee may amend or supplement this
Indenture and the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or
exchange offer for the Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the
execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to
the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join
with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental
Indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental
Indenture.
It shall not be necessary for the consent of the
Holders of Notes under this Section 9.02 to approve the
particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the
Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity
of any such amended or supplemental Indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by
the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder):
(i) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed
maturity of any Note or alter the provisions with respect to
the redemption or repurchase of the Notes (other than
provisions relating to Section 4.10 and 4.15 hereof);
(iii) reduce the rate of or change the time for
payment of interest on any Note;
(iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on
the Notes (except a rescission of acceleration of the Notes
by the Holders of at least a majority in aggregate principal
amount of the Notes and a waiver of the payment default that
resulted from such acceleration);
(v) make any Note payable in money other than that
stated in the Notes;
(vi) reduce the principal amount of such series of
Notes that need to consent to any waiver of past Defaults or
the rights of Holders of Notes to receive payments of
principal of or premium, if any, or interest on the Notes;
(vii) waive a redemption payment with respect to any
Note (other than a payment required by Section 4.10 or
4.15); or
(viii) make any change in the foregoing amendment and
waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in a amended or supplemental
Indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a
continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the
waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may
issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a
new Note shall not affect the validity and effect of such
amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental
Indenture authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental
Indenture until the Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01)
shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder of a Note (a
"Noteholder") by accepting a Note agrees, that the
Indebtedness evidenced by the Note is subordinated in right
of payment, to the extent and in the manner provided in this
Article, to the prior payment in full of all Senior Debt
(whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior
Debt.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution to creditors of the
Company in a liquidation or dissolution of the Company or in
a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property,
an assignment for the benefit of creditors or any
marshalling of the Company's assets and liabilities, the
holders of Senior Debt will be entitled to receive payment
in full, in cash or Cash Equivalents, of all Obligations due
in respect of such Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in
the applicable Senior Debt, whether or not allowed or
allowable in such proceeding) before the Holders of Notes
will be entitled to receive any payment with respect to the
Notes, and until all Obligations with respect to Senior Debt
are paid in full, in cash or Cash Equivalents, any payment
or distribution to which the Holders of Notes would be
entitled shall be made to the holders of Senior Debt (except
that Holders of Notes may receive and retain (i) Permitted
Junior Securities and (ii) payments made from the trust
described in Article 8. The term "payment" means, with
respect to the Notes any payment, whether in cash or other
assets or property, of interest, principal (including
redemption price and purchase price), premium, Liquidated
Damages or any other amount on, of or in respect of the
Notes, any other acquisition of Notes and any deposit into
the trust described in Article 8 above. The verb "pay" has
a correlative meaning.
Section 10.03. Default on Designated Senior Debt.
The Company also may not make any payment or
distribution upon or in respect of the Notes (except in
Permitted Junior Securities or from the trust described in
Article 8 above), if (i) a default in the payment of any
Obligations with respect to Designated Senior Debt occurs
and is continuing (a "payment default") or any other default
on Designated Senior Debt occurs and the maturity of such
Designated Senior Debt is accelerated in accordance with its
terms or (ii) a default, other than a payment default,
occurs and is continuing with respect to Designated Senior
Debt that permits holders of the Designated Senior Debt as
to which such default relates to accelerate its maturity (a
"non-payment default") and, in the case of this clause (ii)
only, the Trustee receives a notice of such default (a
"Payment Blockage Notice") from the Company or the holders
of any Designated Senior Debt. Payments on the Notes may
and shall be resumed (a) in the case of a payment default,
upon the date on which such default is cured or waived and,
in the case of Designated Senior Debt that has been
accelerated, such acceleration has been rescinded, and (b)
in case of a non-payment default, the earlier of the date on
which such non-payment default is cured or waived or 179
days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated
Senior Debt has been accelerated. No new period of payment
blockage may be commenced on account of any non-payment
default unless and until 360 days have elapsed since the
initial effectiveness of the immediately prior Payment
Blockage Notice. No non-payment default that existed or was
continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall
have been cured or waived for a period of not less than 90
days.
Section 10.04. Acceleration of Notes.
If payment of the Notes is accelerated because of an
Event of Default, the Company shall promptly notify holders
of Senior Debt of the acceleration.
Section 10.05. When Distribution Must Be Paid Over.
In the event that the Trustee or any Noteholder
receives any payment of any Obligations with respect to the
Notes at a time when the Trustee or such Noteholder, as
applicable, has actual knowledge that such payment is
prohibited by Section 10.03 hereof, such payment shall be
held by the Trustee or such Noteholder, in trust for the
benefit of, and shall be paid forthwith over and delivered,
by the Trustee (if the Notice required by Section 10.06 has
been received by the Trustee) or the Holder, upon written
request, to, the holders of Senior Debt as their interests
may appear or their Representative under the indenture or
other agreement (if any) pursuant to which Senior Debt may
have been issued, as their respective interests may appear,
for application to the payment of all Obligations with
respect to Senior Debt remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with
their terms, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the
Trustee undertakes to perform only such obligations on the
part of the Trustee as are specifically set forth in this
Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior
Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of
Noteholders or the Company or any other Person money or
assets to which any holders of Senior Debt shall be entitled
by virtue of this Article 10, except if such payment is made
as a result of the willful misconduct or gross negligence of
the Trustee.
Section 10.06. Notice by Company.
The Company shall promptly notify the Trustee and the
Paying Agent of any facts known to the Company that would
cause a payment of any Obligations with respect to the Notes
to violate this Article, but failure to give such notice
shall not affect the subordination of the Notes to the
Senior Debt as provided in this Article.
The Company shall promptly notify holders of Senior
Debt if payment of the Notes is accelerated because of an
Event of Default. The Company may not pay any such
accelerated Notes until five Business Days after such
holders receive notice of such acceleration and, thereafter,
may make such payment only if otherwise permissible under
this Article 10.
Section 10.07. Subrogation.
After all Senior Debt is paid in full and until the
Notes are paid in full, Noteholders shall be subrogated
(equally and ratably with all other Indebtedness pari passu
with the Notes) to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the
Noteholders have been applied to the payment of Senior
Debt. A distribution made under this Article to holders of
Senior Debt that otherwise would have been made to
Noteholders is not, as between the Company and Noteholders,
a payment by the Company on the Notes.
Section 10.08. Relative Rights.
This Article defines the relative rights of
Noteholders and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Noteholders,
the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the
Notes in accordance with their terms;
(2) affect the relative rights of Noteholders and
creditors of the Company other than their rights in
relation to holders of Senior Debt; or
(3) prevent the Trustee or any Noteholder from
exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders and owners
of Senior Debt to receive distributions and payments
otherwise payable to Noteholders.
If the Company fails because of this Article to pay
principal of or interest on a Note on the due date, the
failure is still a Default or Event of Default.
Section 10.09. Subordination May Not Be Impaired by
Company.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes
shall be impaired by any act or failure to act by the
Company or any Holder or by the failure of the Company or
any Holder to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice
given to holders of Senior Debt, the distribution may be
made and the notice given to their Representative.
Upon any payment or distribution of assets of the
Company referred to in this Article 10, the Trustee and the
Noteholders shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon
any certificate of such Representative or of the liquidating
trustee or agent or other Person making any distribution to
the Trustee or to the Noteholders for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or
any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee
shall have received at its Corporate Trust Office at least
five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any
Obligations with respect to the Notes to violate this
Article. Only the Company or a Representative may give the
notice. Nothing in this Article 10 shall impair the claims
of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
The Trustee in its individual or any other capacity
may hold Senior Debt with the same rights it would have if
it were not Trustee. Any Agent may do the same with like
rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance
thereof authorizes and directs the Trustee on the Holder's
behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article 10, and appoints the Trustee to act as the
Holder's attorney-in-fact for any and all such purposes. If
the Trustee does not file a proper proof of claim or proof
of debt in the form required in any proceeding referred to
in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the
Representatives are hereby authorized to file an appropriate
claim for and on behalf of the Holders of the Notes.
Section 10.13. Amendments.
The provisions of this Article 10 shall not be amended
or modified except as set forth in Section 9.02 hereof.
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01. Subsidiary Guarantees.
Each Guarantor hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes or
the Obligations of the Company hereunder and thereunder,
that: (a) the principal of, premium, if any, interest and
Liquidated Damages, if any, on Notes will be promptly paid
in full when due, subject to any applicable grace period,
whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium,
if any, interest on any interest, if any (to the extent
permitted by law), and Liquidated Damages, if any, on the
Notes, and all other payment Obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be
promptly paid in full and performed, all in accordance with
the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any
of such other Obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of
the extension or renewal, subject to any applicable grace
period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for
whatever reason the Guarantors shall, jointly and severally
with all other Guarantors, be obligated to pay the same
immediately. An Event of Default under this Indenture or
the Notes shall constitute an event of default under the
Subsidiary Guarantees, and shall entitle the Holders to
accelerate the Obligations of the Guarantors hereunder in
the same manner and to the same extent as the Obligations of
the Company. The Guarantors hereby agree that its
Obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes
or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this
Subsidiary Guarantee will not be discharged except by
complete performance of the Obligations contained in the
Notes and this Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to the Company,
the Guarantors, or any Note Custodian, Trustee, liquidator
or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor agrees that it shall not
be entitled to, and hereby waives, any right of subrogation
in relation to the Holders in respect of any Obligations
guaranteed hereby until payment in full of the Obligations
hereunder. Each Guarantor further agrees that, as between
the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided
in Article 6 hereof for the purposes of the this Subsidiary
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such Obligations as provided
in Article 6 hereof, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Subsidiary Guarantee.
The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of
such right does not impair the rights of the Holders under
the Subsidiary Guarantees.
Section 11.02. Execution and Delivery of Subsidiary
Guarantee.
To evidence its Subsidiary Guarantee set forth in
Section 11.01 hereof, each Guarantor hereby agrees that a
notation of such Subsidiary Guarantee substantially in the
form of Exhibit D shall be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf
of such Guarantor, by manual or facsimile signature, by an
Officer of such Guarantor.
Each Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 11.01 hereof shall remain in
full force and effect notwithstanding any failure to endorse
on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or
on the Subsidiary Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which a
Subsidiary Guarantee is endorsed, the Subsidiary Guarantee
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due
delivery of the Subsidiary Guarantee (in existence on or
after the date hereof) set forth in this Indenture on behalf
of the Guarantors.
Section 11.03. Guarantors May Consolidate, Etc., on Certain
Terms.
No Guarantor may consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person)
another Person (other than the Company or another Guarantor)
unless (i) subject to the provisions of the following
paragraph, the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustees, under the Notes and this
Indenture; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(iii) the Company will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction
had occurred at the beginning of the applicable four-quarter
period, either (x) be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof or (y) have a Fixed Charge Coverage
Ratio at least equal to the actual Fixed Charge Coverage
Ratio for such four-quarter reference period.
Notwithstanding the foregoing clauses (ii) and (iii), (a)
any Restricted Subsidiary may consolidate with, merge into
or transfer all or part of its properties and assets to any
Guarantor and (b) any Guarantor may merge with an Affiliate
incorporated solely for the purpose of reincorporating such
Guarantor in another jurisdiction.
Section 11.04. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of
the assets of any Guarantor, by way of merger, consolidation
or otherwise, or a sale or other disposition of all of the
capital stock of any Guarantor (including by way of a
Subsidiary Distribution), then such Guarantor will be
released and relieved of any obligations under its
Subsidiary Guarantees; provided that the Net Proceeds of
such sale or other disposition are applied in accordance
with Section 4.10 hereof to the extent required to be so
applied. Any Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the
full amount of principal of and interest on the Notes and
for its other obligations under this Indenture as provided
in this Article 11.
Section 11.05. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
11 shall in such case (unless the context shall otherwise
require) be construed as extending to and including such
Paying Agent within its meaning as fully and for all intents
and purposes as if such Paying Agent were named in this
Article 11 in place of the Trustee.
Section 11.06. Additional Guarantors.
Any Person that was not a Guarantor on the date hereof
may become a Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture in substantially the
form of Exhibit C hereto, and (b) an Opinion of Counsel to
the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the
legal, valid, binding and enforceable obligation of such
Person (subject to such customary exceptions concerning
creditors' rights, fraudulent transfers, public policy,
equitable principles and other matters as may be reasonably
acceptable to the Trustee).
Section 11.07. Subordination of Subsidiary Guarantee.
The Obligations of each Guarantor under its Subsidiary
Guarantee pursuant to this Article 11 shall be subordinated
in right of payment to the prior payment, in full, of all
Obligations due in respect of Senior Debt of such Guarantor,
whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed.
Section 11.08. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution to creditors of any
Guarantor in a liquidation or dissolution of such Guarantor
or in a bankruptcy, reorganization, insolvency, receivership
or similar proceeding relating to such Guarantor or its
property, an assignment for the benefit of creditors or any
marshalling of such Guarantor's assets and liabilities, the
holders of Senior Debt of such Guarantor will be entitled to
receive payment in full, in cash or Cash Equivalents, of all
Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt, whether or
not allowed or allowable in such proceeding) before the
Holders of Notes will be entitled to receive any payment
with respect to the Subsidiary Guarantees, and until all
Obligations with respect to such Senior Debt are paid in
full, in cash or Cash Equivalents, any payment or
distribution to which the Holders of Notes would be entitled
shall be made to the holders of such Senior Debt (except
that Holders of Notes may receive and retain (i) Permitted
Junior Securities and (ii) payments made from the trust
described in Article 8. The term "payment" means, with
respect to the Notes any payment, whether in cash or other
assets or property, of interest, principal (including
redemption price and purchase price), premium, Liquidated
Damages or any other amount on, of or in respect of the
Subsidiary Guarantees, any other acquisition of Notes and
any deposit into the trust described in Article 8 above.
The verb "pay" has a correlative meaning.
Section 11.09. Default on Designated Senior Debt.
No Guarantor shall make any payment or distribution
upon or in respect of the Subsidiary Guarantees (except in
Permitted Junior Securities or from the trust described in
Article 8) if (i) a payment default with respect to
Designated Senior Debt of such Guarantor occurs and is
continuing or any other default on Designated Senior Debt of
such Guarantor occurs and the maturity of such Designated
Senior Debt of such Guarantor is accelerated in accordance
with its terms or (ii) a non-payment default occurs and is
continuing with respect to Designated Senior Debt of such
Guarantor that permits holders of the Designated Senior Debt
of such Guarantor as to which such default relates to
accelerate its maturity and, in the case of this clause (ii)
only, the Trustee receives a Payment Blockage Notice from
the Company or the holders of any Designated Senior Debt of
such Guarantor. Payments in respect of such Guarantor's
Subsidiary Guarantee may and shall be resumed (a) in the
case of a payment default, upon the date on which such
default is cured or waived and, in the case of Designated
Senior Debt of such Guarantor that has been accelerated,
such acceleration has been rescinded, and (b) in case of a
non-payment default, the earlier of the date on which such
non-payment default is cured or waived or 179 days after the
date on which the applicable Payment Blockage Notice is
received, unless the maturity of any Designated Senior Debt
of such Guarantor has been accelerated. No new period of
payment blockage may be commenced on account of any non-
payment default unless and until 360 days have elapsed since
the initial effectiveness of the immediately prior Payment
Blockage Notice. No non-payment default that existed or was
continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall
have been cured or waived for a period of not less than 90
days.
Section 11.10. Acceleration of Notes.
Each Guarantor shall promptly notify holders of Senior
Debt of such Guarantor if payment of the Subsidiary
Guarantees is accelerated because of an Event of Default.
Section 11.11. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives
from a Guarantor any payment of any Obligations with respect
to the Subsidiary Guarantees at a time when the Trustee or
such Holder, as applicable, has actual knowledge that such
payment is prohibited by Section 11.09 hereof, such payment
shall be held by the Trustee or such Holder, in trust for
the benefit of, and shall be paid forthwith over and
delivered, by the Trustee (if the Notice required by Section
10.06 has been received by the Trustee) or the Holder, upon
written request, to, the holders of Senior Debt of such
Guarantor as their interests may appear or their
Representative under the indenture or other agreement (if
any) pursuant to which Senior Debt of such Guarantor may
have been issued, as their respective interests may appear,
for application to the payment of all Obligations with
respect to Senior Debt of such Guarantor remaining unpaid to
the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of
Senior Debt of such Guarantor.
With respect to any Guarantor with respect to the
holders of Senior Debt of such Guarantor, the Trustee
undertakes to perform only such obligations on the part of
the Trustee as are specifically set forth in this Article
11, and no implied covenants or obligations with respect to
the holders of Senior Debt of such Guarantor shall be read
into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of
Senior Debt of such Guarantor, and shall not be liable to
any such holders if the Trustee shall pay over or distribute
to or on behalf of Holders or the Company or any other
Person money or assets to which any holders of Senior Debt
of such Guarantor shall be entitled by virtue of this
Article 11, except if such payment is made as a result of
the willful misconduct or gross negligence of the Trustee.
Section 11.12. Notice By a Guarantor.
Each Guarantor shall promptly notify the Trustee and
the Paying Agent of any facts known to such Guarantor that
would cause a payment of any Obligations with respect to the
Notes or its Subsidiary Guarantee to violate this Article
11, but failure to give such notice shall not affect the
subordination of its Subsidiary Guarantee or of the Notes to
the Senior Debt of such Guarantor as provided in this
Article 11.
Section 11.13. Subrogation.
With respect to any Guarantor, after all Senior Debt
of such Guarantor is paid in full and until the Subsidiary
Guarantees are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness of such
Guarantor pari passu with the Notes) to the rights of
holders of Senior Debt of such Guarantor to receive
distributions applicable to Senior Debt of such Guarantor to
the extent that distributions otherwise payable to the
Holders have been applied to the payment of Senior Debt of
such Guarantor. A distribution made under this Article 11
to holders of Senior Debt of such Guarantor that otherwise
would have been made to Holders is not, as between the such
Guarantor and Holders, a payment by the Company on the
Senior Debt of such Guarantor.
Section 11.14. Relative Rights.
This Article 11 defines the relative rights of Holders
and holders of Senior Debt of the Guarantors. Nothing in
this Indenture shall:
(1) impair, as between each Guarantor and the
Holders, the obligation of such Guarantor, which is
absolute and unconditional, to pay principal of and
interest and Liquidated Damages, if any, on the
Subsidiary Guarantees in accordance with their terms;
(2) affect the relative rights of Holders and
creditors of each Guarantor other than their rights in
relation to holders of Senior Debt of such Guarantor; or
(3) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders and owners
of Senior Debt of each Guarantor to receive distributions
and payments otherwise payable to Holders.
If any Guarantor fails because of this Article 11 to
pay principal of or interest on the Subsidiary Guarantees to
a Holder on the due date, the failure is still a Default or
Event of Default.
Section 11.15. Subordination May Not Be Impaired by any
Guarantor.
With respect to any Guarantor, no right of any holder
of Senior Debt of such Guarantor to enforce the
subordination of the Subsidiary Guarantee shall be impaired
by any act or failure to act by such Guarantor or any Holder
or by the failure of such Guarantor to comply with this
Indenture.
Section 11.16. Distribution or Notice to Representative.
With respect to any Guarantor, whenever a distribution
is to be made or a notice given to holders of Senior Debt of
such Guarantor, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets referred to
in this Article 11, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court
of competent jurisdiction or upon any certificate of such
Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of
the Senior Debt of such Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article 11.
Section 11.17. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 11 or
any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee
shall have received at its Corporate Trust Office at least
five Business Days prior to the date of such payment,
written notice of facts that would cause the payment of any
Obligations with respect to the Subsidiary Guarantee to
violate this Article 11. Only a Guarantor or a
Representative may give the notice. Nothing in this
Article 11 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
With respect to any Guarantor, the Trustee in its
individual or any other capacity may hold Senior Debt of
such Guarantor with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights.
Section 11.18. Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance
thereof authorizes and directs the Trustee on the Holder's
behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article 11, and appoints the Trustee to act as the
Holder's attorney-in-fact for any and all such purposes. If
the Trustee does not file a proper proof of claim or proof
of debt in the form required in any proceeding relative to
any Guarantor referred to in Section 6.09 hereof at least 30
days before the expiration of the time to file such claim, a
Representative of Designated Senior Debt of each Guarantor
is hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
Section 11.19. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof, each
beneficiary hereof, hereby confirm that it is its intention
that the Subsidiary Guarantee by such Guarantor not
constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy Code, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to any
Subsidiary Guarantees. To effectuate the foregoing
intention, each such Person hereby irrevocably agrees that
the obligation of such Guarantor under its Subsidiary
Guarantee under this Article 11 shall be limited to the
maximum amount as will, after giving effect to such maximum
amount and all other (contingent or otherwise) liabilities
of such Guarantor that are relevant under such laws, and
after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11,
result in the obligations of such Guarantor in respect of
such maximum amount not constituting a fraudulent
conveyance. Each beneficiary under the Subsidiary
Guarantees, by accepting the benefits hereof, confirms its
intention that, in the event of a bankruptcy, reorganization
or other similar proceeding of the Company or any Guarantor
in which concurrent claims are made upon such Guarantor
hereunder, to the extent such claims will not be fully
satisfied, each such claimant with a valid claim against the
Company shall be entitled to a ratable share of all payments
by such Guarantor in respect of such concurrent claims.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by TIA Section318(c),
the imposed duties 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 by the Company or the
Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (regis
tered or certified, return receipt requested), telex, tele
copier or overnight air courier guaranteeing next day
delivery, to the others' address:
If to the Company:
Falcon Building Products, Inc.
Two North Riverside Plaza, Suite 1100
Chicago, Illinois 60606
Telecopier No.: (312) 906-8402
Attention: Gus Athas
With a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193
Telecopier No.: (212) 351-4035
Attention: Charles K. Marquis
If to the Trustee:
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, IL 60606
Telecopier No.: (312) 461-3525
Attention: Indenture Trust Division
The Company or the Trustee, by notice to the others
may designate additional or different addresses for subse
quent notices or communications.
All notices and communications (other than those sent
to Holders) shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and the next Business
Day after timely delivery to the courier, if sent by over
night air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be
mailed by first class mail, certified or registered, return
receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to
the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent
at the same time.
Section 12.03. Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA
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 any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA
Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certi
ficate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as
is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been
satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may
make reasonable rules and set reasonable requirements for
its functions.
Section 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or
stockholder or Affiliate of the Company, as such, shall have
any liability for any obligations of the Company under the
Notes, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. No
director, officer, employee, incorporator or stockholder or
Affiliate of any of the Guarantors, as such, shall have any
liability for any obligations of the Guarantors under the
Subsidiary Guarantees, this Indenture or for any claim based
on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes and Subsidiary
Guarantees by accepting a Note and a Subsidiary Guarantee
waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the
Notes and the Subsidiary Guarantees.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
SUBSIDIARY GUARANTEES.
Section 12.09. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such indenture,
loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and
the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
<PAGE>
SIGNATURES
Dated as of June 17, 1997 Falcon Building Products
By: /s/ Gus J. Athas
-------------------
Name: Gus J. Athas
Title: Executive Vice President, General
Counsel and Secretary
Dated as of June 17, 1997 Hart & Cooley, Inc.
By: /s/ Gus J. Athas
---------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 Mansfield Plumbing Products, Inc.
By: /s/ Gus J. Athas
----------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 DeVilbiss Air Power Company
By: /s/ Gus J. Athas
----------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 SWC Industries, Inc.
By: /s/ Gus J. Athas
----------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 Ex-Cell Manufacturing Company, Inc.
By: /s/ Gus J. Athas
----------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 Harris Trust and Savings Bank
By: /s/ Kevin O. Healey
----------------------
Name: Kevin O. Healey
Title: Senior Vice President
By: /s/ D. G. Donovan
---------------------
Name: D. G. Donovan
Title: Assistant Secretary
<PAGE>
Exhibit A
(Face of Note)
9 1/2% [Series A] [Series B] Senior Subordinated Notes due 2007
No. $__________
Falcon Building Products, Inc.
promises to pay to
or registered assigns,
the principal sum of
Dollars on June 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: June 17, 1997
Falcon Building Products, Inc.
By: _________________________
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Harris Trust and Savings Bank,
as Trustee
By: ________________________
<PAGE>
(Back of Note)
91/2% [Series A] [Series B] Senior Subordinated Notes due 2007
[Unless and until it is exchanged in whole or in part
for Notes in definitive form, this Note may not be
transferred except as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or
a nominee of such successor Depository. Unless this
certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued
is registered in the name of Cede & Co. or such other name
as may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity
as may be 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.]/1
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) 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 (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (1) ABOVE.
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. Falcon Building Products, Inc., a
Delaware corporation (the "Company"), promises to pay
interest on the principal amount of this Note at 91/2% per
annum from June 17, 1997 until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The
Company will pay interest and Liquidated Damages semi-
annually on June 15 and December 15 of each year, or if any
such day is not a Business Day, on the next succeeding
Business Day (each an "Interest Payment Date"). Interest on
the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this
Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding
Interest Payment Date; provided, further, that the first
Interest Payment Date shall be December 15, 1997. The
Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Code) on overdue
principal and premium, if any, from time to time on demand
at a rate that is 1% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Code) on
overdue installments of interest and Liquidated Damages
(without regard to any applicable grace periods) from time
to time on demand at the same rate to the extent lawful.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company will pay interest
on the Notes (except defaulted interest) and Liquidated
Damages to the Persons who are registered Holders of Notes
at the close of business on the June 1 or December 1 next
preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of
the Indenture with respect to defaulted interest. The Notes
will be payable as to principal, premium, interest and
Liquidated Damages at the office or agency of the Company
maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment
of interest and Liquidated Damages may be made by check
mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire
transfer of immediately available funds will be required
with respect to principal of and interest, premium and
Liquidated Damages on, all Global Notes and all other Notes
the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender
for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Harris
Trust and Savings Bank, the Trustee under the Indenture,
will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in
any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of June 17, 1997 (the "Indenture")
between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S.
Code SectionSection 77aaa-77bbbb). The Notes are subject to
all such terms, and Holders are referred to the Indenture
and such Act for a statement of such terms. The Notes are
unsecured general obligations of the Company limited to
$145.0 million in aggregate principal amount.
5. Optional Redemption.
(a) Except as described in paragraphs (b) and (c)
below, the Notes will not be redeemable at the Company's
option prior to June 15, 2002. Thereafter, the Notes will
be subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon,
if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on June 15 of the
years indicated below:
Year Percentage
2002 104.750%
2003 103.167%
2004 101.583%
2005 and thereafter 100.000%
(b) In addition, at any time and from time to
time, prior to June 15, 2000, the Company may redeem up to
35% of the original aggregate principal amount of Notes at a
redemption price of 109.5% of the principal amount thereof,
plus accrued and unpaid interest and Liquidated Damages
thereon, if any, to the redemption date, with the net cash
proceeds of a public offering of common stock of the
Company; provided that at least 65% of the original
aggregate principal amount of Notes remain outstanding
immediately after the occurrence of such redemption; and
provided, further, that such redemption shall occur within
60 days of the date of the closing of such public offering.
(c) At any time on or prior to June 15, 2002, the
of Notes may be redeemed as a whole but not in part at the
option of the Company upon the occurrence of a Change of
Control, upon not less than 30 nor more than 60 days' prior
notice (but in no event may any such redemption occur more
than 90 days after the occurrence of such Change of Control)
mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest and Liquidated Damages, if
any, to, the redemption date, subject to the right of
Holders on the relevant record date to receive interest due
on the relevant interest payment date.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company
shall not be required to make mandatory redemption payments
with respect to the Notes.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control,
unless all Notes have been called for redemption pursuant
paragraph 5(c) above, each Holder of Notes will have the
right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such
Holder's Notes pursuant to the offer described below (the
"Change of Control Offer") at an offer price in cash (the
"Change of Control Payment") equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of
purchase.
(b) If the Company or any Subsidiary consummates
one or more Asset Sales and does not use all of the Net
Proceeds from such Asset Sales as provided in Section 4.10
of the Indenture, the Company will be required, under
certain circumstances, to utilize the Excess Proceeds from
such Asset Sales to offer (an "Excess Proceeds Offer") to
purchase Notes at a purchase price in cash equal to 100% of
the aggregate principal amount of the Notes plus any accrued
and unpaid interest and Liquidated Damages, if any, to the
date of purchase. If the Excess Proceeds are insufficient
to purchase all Notes tendered pursuant to any Excess
Proceeds Offer, the Company shall select the Notes to be
purchased in accordance with the terms of Article 3 and
Section 4.10 of the Indenture, as applicable.
(c) If the Company consummates a Subsidiary
Distribution, the Company will be required, to offer (a
"Subsidiary Distribution Offer") to purchase a portion of
the Notes pursuant to Section 1.01 of the Indenture, at a
purchase price in cash equal to 101% of the aggregate
principal amount, plus accrued interest and Liquidated
Damages thereon, if any. If the Company is not required to
purchase all of the Notes tendered pursuant to a Subsidiary
Distribution Offer, the Company shall select the Notes to be
purchased in accordance with the terms of Article 3 of the
Indenture.
8. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof
called for redemption.
9. Denominations, Transfer, Exchange. The Notes are
in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. The transfer of
Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee
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 Company
need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part.
Also, it need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to
be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to
certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance
with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes. Without the
consent of any Holder of a Note, the Indenture or the Notes
may be amended or supplemented to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide
for the assumption of the Company's obligations to Holders
of the Notes in case of a merger or consolidation, to make
any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the SEC
in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include:
(a) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Notes
(whether or not prohibited by Article 10 of the Indenture);
(b) default in payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by
Article 10 of the Indenture); (c) failure by the Company for
30 days after notice to comply with the provisions described
under Sections 4.07, 4.09, 4.10, 4.15 or 5.01 of the
Indenture; (d) failure by the Company for 60 days after
notice to comply with any of its other agreements in the
Indenture or the Notes; (e) the failure by the Company or
any Restricted Subsidiary that is a Significant Subsidiary
to pay any Indebtedness within any applicable grace period
after final maturity or acceleration by the holders thereof
because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $20.0 million;
(f) the failure by the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary to pay final
non-appealable judgments aggregating in excess of $20.0
million, which judgments are not paid, discharged or stayed
for a period of 60 days; (g) except as permitted by the
Indenture, any Subsidiary Guarantee by a Guarantor that is a
Significant Subsidiary shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or any Guarantor,
or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under its Subsidiary Guarantee;
and (h) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary. If any Event of Default
occurs and is continuing, the Note Trustee or the Holders of
at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company or any
of its Restricted Subsidiaries that is a Significant
Subsidiary, all outstanding Notes will become due and
payable without further action or notice. Holders of the
Notes may not enforce this Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then
outstanding Notes may direct the applicable Trustee in its
exercise of any trust or power. The Trustee may withhold
from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it
determines that withholding notice is in their interest.
13. Trustee Dealings with Company. The Trustee, in
its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company
or its Affiliates, and may otherwise deal with the Company
or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company, as
such, shall not have any liability for any obligations of
the Company under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of
the Notes.
15. Authentication. This Note shall not be valid
until authenticated by the manual signature of the Trustee
or an authenticating agent.
16. Abbreviations. Customary abbreviations may be
used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. Additional Rights of Holders of Transfer
Restricted Securities. In addition to the rights provided
to Holders of Notes under the Indenture, Holders of
Transferred Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement dated as of
June 17, 1997, between the Company and the parties named on
the signature pages thereof (the "Registration Rights
Agreement").
18. 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 Notes and the Trustee may 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 Notes 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 a copy of the Indenture and/or
the Registration Rights Agreement. Requests may be made to:
Falcon Building Products, Inc.
Two North Riverside Plaza, Suite 1100
Chicago, Illinois 60606
Telecopier No.: (312) 906-8402
Attention: Gus Athas
<PAGE>
Assignment Form
To assign this Note, fill in the form below: (I) or
(we) assign and transfer this Note to
- -----------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
- -----------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint __________________________________
to transfer this Note 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 face of this Note)
Signature Guarantee.
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture or pursuant to a Subsidiary Distribution Offer
check the box below:
Section 4.10 Section 4.15
Subsidiary Distribution Offer
If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section
4.15 of the Indenture or pursuant to a Subsidiary
Distribution Offer, state the amount you elect to have
purchased: $___________
Date: ________________ Your Signature: ______________________
(Sign exactly as your name appears on the Note)
Tax Identification No.: ______________________
Signature Guarantee.
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE/2
The following exchanges of a part of this Global Note
for Definitive Notes have been made:
Date of Exchange Amount of decrease in Amount of increase in
Principal Amount of Principal Amount of
this Global Note this Global Note
Principal Amount of this Signature of
Global Note authorized officer of
following such decrease Trustee or Note
(or increase) Custodian
Exhibit 4.2
FALCON BUILDING PRODUCTS, INC.
SERIES A AND SERIES B
10 1/2% SENIOR SUBORDINATED DISCOUNT NOTES DUE 2007
Indenture
Dated as of June 17, 1997
HARRIS TRUST AND SAVINGS BANK
Trustee
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions
Section 1.02 Other Definitions
Section 1.03 Incorporation by Reference of Trust Indenture
Act
Section 1.04 Rules of Construction
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating
Section 2.02 Execution and Authentication
Section 2.03 Registrar and Paying Agent
Section 2.04 Paying Agent to Hold Money in Trust
Section 2.05 Holder Lists
Section 2.06 Transfer and Exchange
Section 2.07 Replacement Notes
Section 2.08 Outstanding Notes
Section 2.09 Treasury Notes
Section 2.10 Temporary Notes
Section 2.11 Cancellation
Section 2.12 Defaulted Interest
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to Trustee
Section 3.02 Selection of Notes to Be Redeemed
Section 3.03 Notice of Redemption
Section 3.04 Effect of Notice of Redemption
Section 3.05 Deposit of Redemption Price
Section 3.06 Notes Redeemed in Part
Section 3.07 Optional Redemption
Section 3.08 Mandatory Redemption
Section 3.09 Repurchase Offers
Section 3.10 Subsidiary Distribution Offers
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes
Section 4.02 Maintenance of Office or Agency
Section 4.03 Reports
Section 4.04 Compliance Certificate
Section 4.05 Taxes
Section 4.06 Stay, Extension and Usury Laws
Section 4.07 Restricted Payments
Section 4.08 Dividend and Other Payment Restrictions
Affecting Subsidiaries
Section 4.09 Incurrence of Indebtedness and Issuance of
Preferred Stock
Section 4.10 Asset Sales
Section 4.11 Transactions with Affiliates
Section 4.12 Liens
Section 4.13 Business Activities
Section 4.14 Corporate Existence
Section 4.15 Offer to Repurchase Upon Change of Control
Section 4.16 No Senior Subordinated Debt
Section 4.17 Subsidiary Guarantees
ARTICLE 5
SUCCESSORS
Section 5.01 Merger, Consolidation, or Sale of all or
Substantially all Assets
Section 5.02 Successor Corporation Substituted
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default
Section 6.02 Acceleration
Section 6.03 Other Remedies
Section 6.04 Waiver of Past Defaults
Section 6.05 Control by Majority
Section 6.06 Limitation on Suits
Section 6.07 Rights of Holders of Notes to Receive Payment
Section 6.08 Collection Suit by Trustee
Section 6.09 Trustee May File Proofs of Claim
Section 6.10 Priorities
Section 6.11 Undertaking for Costs
ARTICLE 7
TRUSTEE
Section 7.01 Duties of Trustee
Section 7.02 Rights of Trustee
Section 7.03 Individual Rights of Trustee
Section 7.04 Trustee's Disclaimer
Section 7.05 Notice of Defaults
Section 7.06 Reports by Trustee to Holders of the Notes
Section 7.07 Compensation and Indemnity
Section 7.08 Replacement of Trustee
Section 7.09 Successor Trustee by Merger, etc.
Section 7.10 Eligibility; Disqualification
Section 7.11 Preferential Collection of Claims Against
Company
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant
Defeasance
Section 8.02 Legal Defeasance and Discharge
Section 8.03 Covenant Defeasance
Section 8.04 Conditions to Legal or Covenant Defeasance
Section 8.05 Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous
Provisions
Section 8.06 Repayment to Company
Section 8.07 Reinstatement
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders of Notes
Section 9.02 With Consent of Holders of Notes
Section 9.03 Compliance with Trust Indenture Act
Section 9.04 Revocation and Effect of Consents
Section 9.05 Notation on or Exchange of Notes
Section 9.06 Trustee to Sign Amendments, etc.
ARTICLE 10
SUBORDINATION
Section 10.01 Agreement to Subordinate
Section 10.02 Liquidation; Dissolution; Bankruptcy
Section 10.03 Default on Designated Senior Debt
Section 10.04 Acceleration of Notes
Section 10.05 When Distribution Must Be Paid Over
Section 10.06 Notice by Company
Section 10.07 Subrogation
Section 10.08 Relative Rights
Section 10.09 Subordination May Not Be Impaired by Company
Section 10.10 Distribution or Notice to Representative
Section 10.11 Rights of Trustee and Paying Agent
Section 10.12 Authorization to Effect Subordination
Section 10.13 Amendments
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01 Subsidiary Guarantees
Section 11.02 Execution and Delivery of Subsidiary
Guarantee
Section 11.03 Guarantors May Consolidate, Etc., on
Certain Terms
Section 11.04 Releases Following Sale of Assets
Section 11.05 "Trustee" to Include Paying Agent
Section 11.06 Additional Guarantors
Section 11.07 Subordination of Subsidiary Guarantee
Section 11.08 Liquidation; Dissolution; Bankruptcy
Section 11.09 Default on Designated Senior Debt
Section 11.10 Acceleration of Notes
Section 11.11 When Distribution Must Be Paid Over
Section 11.12 Notice by a Guarantor
Section 11.13 Subrogation
Section 11.14 Relative Rights
Section 11.15 Subordination May Not Be Impaired by
Guarantor
Section 11.16 Distribution or Notice to Representative
Section 11.17 Rights of Trustee and Paying Agent
Section 11.18 Authorization to Effect Subordination
Section 11.19 Limitation of Guarantor's Liability
ARTICLE 12
MISCELLANEOUS
Section 12.01 Trust Indenture Act Controls
Section 12.02 Notices
Section 12.03 Communication by Holders of Notes with Other
Holders of Notes
Section 12.04 Certificate and Opinion as to Conditions
Precedent
Section 12.05 Statements Required in Certificate or Opinion
Section 12.06 Rules by Trustee and Agents
Section 12.07 No Personal Liability of Directors, Officers,
Employees and Stockholders
Section 12.08 Governing Law
Section 12.09 No Adverse Interpretation of Other Agreements
Section 12.10 Successors
Section 12.11 Severability
Section 12.12 Counterpart Origins
Section 12.13 Table of Contents, Headings, etc.
EXHIBITS
Exhibit A FORM OF NOTE
<PAGE>
INDENTURE dated as of June 17, 1997 by and among (i)
Falcon Building Products, Inc. a Delaware corporation (the
"Company"), (ii) Hart & Cooley, Inc., Mansfield Plumbing
Products, Inc., DeVilbiss Air Power Company, SWC Industries,
Inc. and Ex-Cell Manufacturing Company, Inc. (each a
"Guarantor" and together, the "Guarantors") and Harris Trust
and Savings Bank, as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as
follows for the benefit of each other and for the equal and
ratable benefit of the Holders of the 101/2% Series A Senior
Subordinated Discount Notes due 2007 (the "Series A Notes")
and the 101/2% Series B Senior Subordinated Discount Notes
due 2007 (the "Series B Notes" and, together with the Series
A Notes, the "Notes"):
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Definitions.
"Accreted Value" means, as of any date of
determination prior to the Full Accretion Date, the sum of
(a) the initial offering price of each Note and (b) the
portion of the excess of the principal amount of each Note
over such initial offering price which shall have been
accreted thereon through such date, such amount to be so
accreted on a daily basis at 101/2% per annum of the initial
offering price of the Notes, compounded semi-annually on
each June 15 and December 15 from the date of issuance of
the Notes through the date of determination; provided that,
on and after the Full Accretion Date, the Accreted Value
shall be equal to the principal amount of the outstanding
Notes.
"Acquired Debt" means, with respect to any specified
Person, (i) Indebtedness of any other Person existing at the
time such other Person is merged with or into or became a
Restricted Subsidiary of such specified Person, including,
without limitation, Indebtedness incurred in connection
with, or in contemplation of, such other Person's merging
with or into or becoming a Restricted Subsidiary of such
specified Person, and (ii) Indebtedness secured by a Lien
encumbering any asset acquired by such specified Person.
"Affiliate" of any specified Person means (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 Person who is a
director or officer (a) of such Person, (b) of any
Subsidiary of such Person or (c) of any Person described in
clause (i) above. For purposes of this definition,
"control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities,
by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or
co-registrar.
"Applicable Premium" means, with respect to a Note at
any redemption date, the greater of (i) 1.0% of the
principal amount (or, prior to the Full Accretion Date, the
Accreted Value thereof) of such Note or (ii) the excess of
(A) the present value at such time of the redemption price
of such Note at June 15, 2002 (such redemption price being
set forth in Section 3.07 hereof), computed using a discount
rate equal to the Treasury Rate plus 75 basis points, over
(B) the principal amount (or, prior to the Full Accretion
Date, the Accreted Value thereof) of such Note, if greater.
"Asset Sale" means (i) the sale, lease, conveyance or
other disposition of any assets or rights (including,
without limitation, by way of a sale and leaseback)
(provided that the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the
Company and its Restricted Subsidiaries taken as a whole
shall be governed by Section 5.01 hereof and not by Section
4.10 hereof, and (ii) the issue or sale by the Company or
any of the Restricted Subsidiaries of Equity Interests of
any of the Company's Subsidiaries (other than director's
qualifying shares), in the case of either clause (i) or
(ii), whether in a single transaction or a series of related
transactions (a) that have a fair market value in excess of
$1.0 million or (b) for net proceeds in excess of $1.0
million. Notwithstanding the foregoing, the following shall
not be Asset Sales: (i) a transfer of assets by the Company
to a Restricted Subsidiary or by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (ii) an
issuance of Equity Interests by a Restricted Subsidiary to
the Company or to another Restricted Subsidiary, (iii) a
sale of Receivables to or by a Receivables Subsidiary, (iv)
a Restricted Payment or Permitted Investment that is
permitted by Section 4.07 hereof (including, without
limitation, any formation of or contribution of assets to a
joint venture), (v) leases or subleases, in the ordinary
course of business, to third parties of real property owned
in fee or leased by the Company or its Subsidiaries, (vi) a
disposition, in the ordinary course of business, of a lease
of real property, (vii) any disposition of property of the
Company or any of its Subsidiaries that, in the reasonable
judgment of the Company, has become uneconomic, obsolete or
worn out, (viii) any disposition of property or assets
(including, without limitation, accounts receivables and
inventory) in the ordinary course of business, (ix) the sale
of Cash Equivalents and Investment Grade Securities and
(x) any exchange of like property pursuant to Section 1031
of the Internal Revenue Code of 1986, as amended.
"Bankruptcy Code" means Title 11, U.S. Code or any
similar federal or state law for the relief of debtors.
"Board of Directors" means, with respect to any
Person, the Board of Directors of such Person, or any
authorized committee of the Board of Directors of such
Person.
"Business Day" means any day other than a Legal
Holiday.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the
liability in respect of a capital lease that would at such
time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means (i) in the case of a
corporation, corporate stock, (ii) in the case of an
association or business entity, any and all shares,
interests, participations, rights or other equivalents
(however designated) of corporate stock, (iii) in the case
of a partnership or limited liability company, partnership
or membership interests (whether general or limited) and
(iv) any similar participation in profits and losses or
equity of a Person.
"Cash Equivalents" means (i) United States dollars,
(ii) securities issued or directly and fully guaranteed or
insured by the United States government or any agency or
instrumentality thereof having maturities of not more than
one year from the date of acquisition, (iii) certificates of
deposit and eurodollar time deposits with maturities of one
year or less from the date of acquisition, bankers'
acceptances with maturities not exceeding one year and
overnight bank deposits, in each case with any commercial
bank or trust company having capital and surplus in excess
of $300 million, (iv) repurchase obligations with a term of
not more than seven days for underlying securities of the
types described in clauses (ii) and (iii) above entered into
with any financial institution meeting the qualifications
specified in clause (iii) above, (v) commercial paper having
the highest rating obtainable from Moody's Investors
Service, Inc. ("Moody's") or Standard & Poor's Ratings
Services, a division of the McGraw-Hill Companies, Inc.
("S&P") and in each case maturing within one year after the
date of acquisition, (vi) investment funds investing 95% of
their assets in securities of the types described in clauses
(i)-(v) above, (vii) readily marketable direct obligations
issued by any state of the United States of America or any
political subdivision thereof having one of the two highest
rating categories obtainable from either Moody's or S&P and
(viii) Indebtedness with a rating of "A" or higher from S&P
or "A2" or higher from Moody's.
"Change of Control" means such time as (i) any
"person" or "group" (within the meaning of Sections 13(d)
and 14(d)(2) of the Exchange Act), other than one or more
members of the Initial Control Group, is or becomes the
"beneficial owner" (as defined in Rule 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 40% of the total voting
power of the Voting Stock of the Company; provided that the
Initial Control Group "beneficially owns" (as defined in
Rule 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, in the aggregate a lesser percentage of the
total voting power of the Voting Stock of the Company than
such other person and does not have the right or ability by
voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of the
Company (for purposes of this definition, such other person
shall be deemed to beneficially own any Voting Stock of a
specified corporation held by a parent corporation, if such
other person "beneficially owns" (as defined in this
definition), directly or indirectly, more than 40% of the
voting power of the Voting Stock of such parent corporation
and the Initial Control Group "beneficially owns" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, in the aggregate, a lesser
percentage of the voting power of the Voting Stock of such
parent corporation and does not have the right or ability by
voting power, contract or otherwise to elect or designate
for election a majority of the board of directors of such
parent corporation) or (ii) following the first public
offering of Voting Stock of the Company after the date
hereof, any person (as defined above) other than the Initial
Control Group, (A) nominates one or more individuals for
election to the Board of Directors of the Company, (B)
solicits proxies, authorization or consents in connection
therewith and (C) such number of nominees elected to serve
on the board of directors in such election and all previous
elections after the date hereof represents a majority of the
Board of Directors of the Company following such election.
"Company" means Falcon Building Products, Inc., a
Delaware corporation.
"Consolidated Cash Flow" means, with respect to any
Person for any period, the Consolidated Net Income of such
Person for such period (A) plus, to the extent deducted in
computing such Consolidated Net Income, (i) Fixed Charges
and the amortization of debt issuance costs, commissions,
fees and expenses of such Person and its Restricted
Subsidiaries for such period, (ii) provision for taxes based
on income or profits (including franchise taxes) of such
Person and its Restricted Subsidiaries for such period,
(iii) depreciation and amortization expense, including, but
not limited to, amortization of inventory write-up under APB
16, amortization of intangibles (including, but not limited
to, goodwill and the costs of Interest Rate Agreements or
Currency Agreements, license agreements and non-competition
agreements) and organization costs, (iv) non-cash expenses
related to the amortization of management fees paid on or
prior to the date hereof, (v) expenses and charges related
to any equity offering or incurrence of Indebtedness
permitted to be incurred by this Indenture (including any
such expenses or charges relating to the Recapitalization),
(vi) the amount of any restructuring charge or reserve,
(vii) non-cash amortization of Capital Lease Obligations,
(viii) unrealized gains and losses from hedging and foreign
currency translations or transactions, (ix) expenses
consisting of internal software development costs that are
expensed during the period but could have been capitalized
in accordance with GAAP, (x) any write-downs, write-offs,
and other non-cash charges and expenses, and (xi) the amount
of any minority interest expense and (B) minus (i) non-cash
items increasing such Consolidated Net Income for such
period and (ii) any cash payment or expense for which a
reserve or charge of the kind described in the clause (vi)
and (x) above was taken in a prior period.
"Consolidated Net Income" means, with respect to any
Person for any period, the aggregate of the Net Income of
such Person and its Restricted Subsidiaries for such period,
on a consolidated basis, determined in accordance with GAAP;
provided that (i) the Net Income of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity
method of accounting shall be included only to the extent of
the amount of dividends or distributions paid in cash to the
referent Person or a Restricted Subsidiary of such Person,
(ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of
dividends or similar distributions by that Restricted
Subsidiary of that Net Income is not at the date of
determination permitted without any prior governmental
approval (that has not been obtained) or, directly or
indirectly, prohibited by operation of the terms of its
charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable
to that Restricted Subsidiary or its stockholders unless
such restriction with respect to the payment of dividends
has been permanently waived, (iii) the Net Income of any
Person acquired in a pooling of interests transaction for
any period prior to the date of such acquisition shall be
excluded, (iv) the cumulative effect of a change in
accounting principles shall be excluded (effected either
through cumulative effect adjustment or a retroactive
application, in each case, in accordance with GAAP) and (v)
to the extent deducted in determining Net Income, the
expenses incurred in connection with the Recapitalization,
including, without limitation, management bonuses and
payments under the management incentive and equity
participation plans, in each case, to the extent that such
payment or expense was disclosed in the Offering Memorandum,
shall be excluded.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors of the
Company who (i) was a member of such Board of Directors on
the date hereof or (ii) was nominated for election or
elected to such Board of Directors with the affirmative vote
of a majority of the Continuing Directors who were members
of such Board at the time of such nomination or election.
"Corporate Trust Office of the Trustee" shall be at
the address of the Trustee specified in Section 12.02 hereof
or such other address as to which the Trustee may give
notice to the Company.
"Credit Facilities" means, with respect to the
Company, one or more debt facilities (including, without
limitation, the Senior Credit Facility) or commercial paper
facilities with banks or other institutional lenders
providing for revolving credit loans, term loans,
receivables financing (including through the sale of
receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables)
or letters of credit or other credit facilities, in each
case, as amended, restated, modified, renewed, refunded,
replaced or refinanced in whole or in part from time to
time.
"Currency Agreement" means any foreign exchange
contract, currency swap agreement or other similar agreement
or arrangement to which the Company or any Subsidiary is a
party or of which it is a beneficiary.
"Default" means any event that is or with the passage
of time or the giving of notice or both would be an Event of
Default.
"Definitive Notes" means Notes that are in the form of
the Notes attached hereto as Exhibit A, that do not include
the information called for by footnotes 1 and 2 thereof.
"Depository" means, with respect to the Notes issuable
or issued in whole or in part in global form, the Person
specified in Section 2.03 hereof as the Depository with
respect to the Notes, until a successor shall have been
appointed and become such pursuant to Article 2 hereof, and,
thereafter, "Depository" shall mean or include such
successor.
"Designated Senior Debt" means (i) any Indebtedness
outstanding under the Senior Credit Facility and (ii) any
other Senior Debt permitted under this Indenture the
principal amount of which is $10.0 million or more and that
has been designated by the Company as "Designated Senior
Debt."
"Disqualified Stock" means any Capital Stock that, by
its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the
happening of any event (other than as a result of a Change
of Control), matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or
prior to the date that is 91 days after the date on which
the Notes mature; provided, however, that if such Capital
Stock is issued to any plan for the benefit of employees of
the Company or its Subsidiaries or by any such plan to such
employees, such Capital Stock shall not constitute
Disqualified Stock solely because it may be required to be
repurchased by the Company in order to satisfy applicable
statutory or regulatory obligations.
"Equity Interests" means Capital Stock and all
warrants, options or other rights to acquire Capital Stock
(but excluding any debt security that is convertible into,
or exchangeable for, Capital Stock).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Exchange Offer" means the offer that may be made by
the Company pursuant to the Registration Rights Agreement to
exchange Series B Notes for Series A Notes.
"Existing Indebtedness" means Indebtedness of the
Company and its Restricted Subsidiaries (other than
Indebtedness under the Senior Credit Facility) in existence
on the date hereof, until such amounts are repaid.
"Fixed Charges" means, with respect to any Person for
any period, the sum, without duplication, of (i) the
consolidated interest expenses of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued (including, without limitation, amortization of
original issue discount, non-cash interest payments, the
interest component of any deferred payment obligations, the
interest component of all payments associated with Capital
Lease Obligations, commissions, discounts and other fees and
charges incurred in respect of letter of credit or bankers'
acceptance financings or any Receivables Facility, and net
payments (if any) pursuant to Hedging Obligations)
excluding, however, (A) amortization of debt issuance costs,
commissions, fees and expenses and (B) customary commitment,
administrative and transaction fees and charges and (ii) the
consolidated interest of such Person and its Restricted
Subsidiaries that was capitalized during such period, and
(iii) any interest expense on Indebtedness of another Person
that is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person
or one of its Restricted Subsidiaries (whether or not such
Guarantee or Lien is called upon), (iv) all dividend
payments, whether or not in cash, on any series of preferred
stock of any Restricted Subsidiary of such Person and (v)
all dividend payments or accruals, whether or not in cash,
on any series of preferred stock of such person other than
dividend payments or accruals payable solely in Equity
Interests (other than Disqualified Stock) of such Person, in
each case, on a consolidated basis and in accordance with
GAAP.
"Fixed Charge Coverage Ratio" means with respect to
any Person for any period, the ratio of the Consolidated
Cash Flow of such Person and its Restricted Subsidiaries for
such period to the Fixed Charges of such Person and its
Restricted Subsidiaries for such period. In the event that
the Company or any of its Restricted Subsidiaries incurs,
assumes, Guarantees or redeems any Indebtedness (other than
revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the
Fixed Charge Coverage Ratio is being calculated but prior to
the date on which the event for which the calculation of the
Fixed Charge Coverage Ratio is made (the "Calculation
Date"), then the Fixed Charge Coverage Ratio shall be
calculated giving pro forma effect to such incurrence,
assumption, Guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same
had occurred at the beginning of the applicable four-quarter
reference period. For purposes of making the computation
referred to above, Investments, acquisitions, dispositions,
mergers and consolidations that have been made by the
Company or any of its Restricted Subsidiaries during the
four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date,
and discontinued operations determined in accordance with
GAAP on or prior to the Calculation Date, shall be given
effect on a pro forma basis assuming that all such
Investments, acquisitions, dispositions, mergers and
consolidations or discontinued operations (and the reduction
or increase of any associated fixed charge obligations and
the change in Consolidated Cash Flow resulting therefrom)
had occurred on the first day of the four-quarter reference
period. 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
Investment, acquisition, disposition, merger or
consolidation or determined a discontinued operation, that
would have required adjustment pursuant to this definition,
then the Fixed Charge Coverage Ratio shall be calculated
giving pro forma effect thereto for such period as if such
Investment, acquisition, disposition, merger or
consolidation or discontinued operations had occurred at the
beginning of the applicable four-quarter period. For
purposes of this definition, whenever pro forma effect is to
be given to a transaction, the pro forma calculations shall
be made in good faith by a responsible financial or
accounting officer of the Company. If any Indebtedness to
which pro forma effect is given bears interest at a floating
rate, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the Calculation Date
had been the applicable interest rate for the entire period
(taking into account any Interest Rate Agreement in effect
on the Calculation Date). Interest on a Capital Lease
Obligation shall be deemed to accrue at an interest rate
reasonably determined by a responsible financial or
accounting officer of the Company to be the rate of interest
implicit in such Capital Lease Obligation in accordance with
GAAP. For purposes of making the computation referred to
above, interest on any Indebtedness under a revolving credit
facility computed on a pro forma basis shall be computed
based upon the average daily balance of such Indebtedness
during the applicable period. Interest on Indebtedness that
may optionally be determined at an interest rate based upon
a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to
have been based upon the rate actually chosen, or, if none,
then based upon such optional rate chosen as the Company may
designate.
"Full Accretion Date" means June 15, 2002.
"GAAP" means generally accepted accounting principles
in the United States of America as in effect from time to
time, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other
entity as have been 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 as in effect as of the date hereof.
"Global Note" means a Note that contains the paragraph
referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached
hereto as Exhibit A.
"Government Securities" means direct obligations of,
or obligations guaranteed by, the United States of America
for the payment of which guarantee or obligations the full
faith and credit of the United States is pledged.
"Guarantee" means a guarantee (other than by
endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any
manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof), of all or any
part of any Indebtedness.
"Guarantors" means each of (i) Hart & Cooley, Inc.,
Mansfield Plumbing Products, Inc., DeVilbiss Air Power
Company, SWC Industries, Inc. and Ex-Cell Manufacturing
Company, Inc. and (ii) any other Subsidiary that executes a
Subsidiary Guarantee in accordance with Section 4.17 hereof,
and their respective successors and assigns, in each case,
until released from its Subsidiary Guarantee in accordance
with the terms of this Indenture.
"Hedging Obligations" means, with respect to any
Person, the obligations of such Person under (i) interest
rate swap agreements, interest rate cap agreements and
interest rate collar agreements and (ii) other agreements or
arrangements designed to protect such Person against
fluctuations in interest rates.
"Holder" means a Person in whose name a Note is
registered.
"Indebtedness" means, with respect to any Person
(without duplication), (i) any indebtedness of such Person,
whether or not contingent, in respect of borrowed money or
evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect
thereof) or banker's acceptances or representing Capital
Lease Obligations or the balance deferred and unpaid of the
purchase price of any property, which purchase price is due
more than six months after the date of placing such property
in service or taking delivery thereof, or representing any
Hedging Obligations, except any such balance that
constitutes an accrued expense or trade payable, if and to
the extent any of the foregoing indebtedness (other than
letters of credit and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in
accordance with GAAP, (ii) all indebtedness under clause (i)
of others secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person)
and (iii) to the extent not otherwise included, the
Guarantee by such Person of any indebtedness under clause
(i) of any other Person; provided, however, that
Indebtedness shall not include (a) any servicing or
guarantee of servicing obligations with respect to
Receivables, (b) obligations of the Company or any of its
Restricted Subsidiaries arising from agreements of the
Company or a Restricted Subsidiary providing for
indemnification, adjustment of purchase price or similar
obligations, in each case, incurred or assumed in connection
with the disposition of any business, assets or a
Subsidiary, other than guarantees of Indebtedness incurred
by any Person acquiring all or any portion of such business,
assets or a Subsidiary for the purpose of financing such
acquisition; provided, however, that (x) such obligations
are not reflected on the balance sheet of the Company or any
Restricted Subsidiary (contingent obligations referred to in
a footnote to financial statements and not otherwise
reflected on the balance sheet shall not be deemed to be
reflected on such balance sheet for purposes of this
clause (x)) and (y) the maximum assumable liability in
respect of all such obligations shall at no time exceed the
gross proceeds including noncash proceeds (the fair market
value of such noncash proceeds being measured at the time
received and without giving effect to any subsequent changes
in value) actually received by the Company and its
Restricted Subsidiaries in connection with such disposition;
or (c) obligations in respect of performance and surety
bonds and completion guarantees provided by the Company or
any Restricted Subsidiary in the ordinary course of
business. The amount of any Indebtedness outstanding as of
any date shall be (i) the accreted value thereof, in the
case of any Indebtedness that does not require current
payments of interest, and (ii) the principal amount thereof
in the case of any other Indebtedness.
"Indenture" means this Indenture, as amended or
supplemented from time to time.
"Initial Control Group" means Investcorp, its
Affiliates, members of the Management Group, the investors
who are the initial holders of the Capital Stock of the
Company, any Person acting in the capacity of an underwriter
or initial purchaser in connection with a public or private
offering of the Company's Capital Stock, any employee
benefit plan of the Company or any of its Subsidiaries or
any participant therein, a trustee or other fiduciary
holding securities under any such employee benefit plan or
any Permitted Transferee of any of the foregoing Persons.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, repurchase
agreement, futures contract or other financial agreement or
arrangement designed to protect the Company or any
Subsidiary against fluctuations in interest rates.
"Investment Grade Securities" means (i) securities
issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality
thereof (other than Cash Equivalents), (ii) debt securities
or debt instruments with a rating of BBB- or higher by S&P
or Baa3 or higher by Moody's or the equivalent of such
rating by such rating organization, or, if no rating of S&P
or Moody's then exists, the equivalent of such rating by any
other nationally recognized securities rating agency, but
excluding any debt securities or instruments constituting
loans or advances among the Company and its Subsidiaries,
and (iii) investments in any fund that invests exclusively
in investments of the type described in clauses (i) and (ii)
which fund may also hold immaterial amounts of cash pending
investment and/or distribution.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including
Affiliates) in the forms of direct or indirect loans
(including guarantees of Indebtedness or other obligations,
but excluding advances to customers in the ordinary course
of business that are recorded as accounts receivable on the
balance sheet of such Person), advances or capital
contributions (excluding commission, travel, payroll,
entertainment, relocation and similar advances to officers
and employees made in the ordinary course of business),
purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together
with all items that are or would be classified as
investments on a balance sheet prepared in accordance with
GAAP. If the Company or any Subsidiary of the Company sells
or otherwise disposes of any Equity Interests of any direct
or indirect Subsidiary of the Company such that, after
giving effect to any such sale or disposition, such Person
is no longer a Subsidiary of the Company, the Company shall
be deemed to have made an Investment on the date of any such
sale or disposition equal to the fair market value of the
Equity Interests of such Subsidiary not sold or disposed of
in an amount determined as provided in the final paragraph
of Section 4.07 hereof.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in the City of New York or at a
place of payment are authorized by law, regulation or
executive order to remain closed. If a payment date is a
Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening
period.
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of
any kind in respect of such asset, whether or not filed,
recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention
agreement or any lease in the nature thereof; provided that
in no event shall an operating lease be deemed to constitute
a Lien.
"Liquidated Damages" means all liquidated damages then
owing pursuant to Section 5 of the Registration Rights
Agreement.
"Management Group" means the senior management of the
Company or its Restricted Subsidiaries.
"Net Income" means, with respect to any Person, the
net income (or loss) of such Person, determined in
accordance with GAAP and before any reduction in respect of
preferred stock dividends, excluding, however, (i) any
extraordinary or non-recurring gains or losses or charges
and gains or losses or charges from the sale of assets
outside the ordinary course of business, together with any
related provision for taxes on such gain or loss or charges
and (ii) deferred financing costs written off in connection
with the early extinguishment of Indebtedness.
"Net Proceeds" means the aggregate cash proceeds
received by the Company or any of its Restricted
Subsidiaries in respect of any Asset Sale (including,
without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset
Sale (including, without limitation, legal, accounting and
investment banking fees, and brokerage and sales
commissions) and any relocation expenses incurred as a
result thereof, taxes paid or payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements), amounts
required to be applied to the repayment of principal,
premium (if any) and interest on Indebtedness that is not
subordinated to the Notes required (other than required by
clause (a) of Section 4.10 hereof) to be paid as a result of
such transaction, all distributions and other payments
required to be made to minority interest holders in
Subsidiaries or joint ventures as a result of such Asset
Sale, and any deduction of appropriate amounts to be
provided by the Company as a reserve in accordance with GAAP
against any liabilities associated with the asset disposed
of in such transaction and retained by the Company after
such sale or other disposition thereof, including, without
limitation, pension and other post-employment benefit
liabilities and liabilities related to environmental matters
or against any indemnification obligations associated with
such transaction.
"Non-Recourse Debt" means Indebtedness (i) as to which
neither the Company nor any of its Restricted Subsidiaries
(a) provides credit support of any kind (including any
undertaking, agreement or instrument that would constitute
Indebtedness) or (b) is directly or indirectly liable (as a
guarantor or otherwise); and (ii) no default with respect to
which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted
Subsidiary) would permit (upon notice, lapse of time or
both) any holder of any other Indebtedness (other than the
Notes being offered hereby) of the Company or any of its
Restricted Subsidiaries to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated
or payable prior to its stated maturity; and (iii) as to
which the lenders have been notified in writing that they
shall not have any recourse to the stock or assets of the
Company or any of its Restricted Subsidiaries; provided
that, notwithstanding the foregoing, the Company and any of
its other Subsidiaries that sell Receivables to the Person
incurring such Indebtedness shall be allowed to provide such
representations, warranties, covenants and indemnities as
are customarily required in such transactions so long as no
such representations, warranties, covenants or indemnities
constitute a Guarantee of payment or recourse against credit
losses.
"Note Custodian" means the Trustee, as custodian with
respect to the Notes in global form, or any successor entity
thereto.
"Obligations" means any principal, interest,
penalties, fees, indemnifications, reimbursements, damages,
guarantees and other liabilities payable under the
documentation governing any Indebtedness, in each case
whether now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished
and later increased, created or incurred, whether or not
arising on or after the commencement of a proceeding under
Title 11, U.S. Code or any similar federal or state law for
the relief of debtors (including post-petition interest) and
whether or not allowed or allowable as a claim in any such
proceeding.
"Offering" means the Offering of the Notes by the
Company.
"Offering Memorandum" means the offering memorandum,
dated June 6, 1997, of the Company, relating to the
Offering.
"Officer" means, with respect to any Person, the
Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, the Chief Financial
Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such
Person.
"Officers' Certificate" means a certificate signed on
behalf of the Company by two Officers of the Company, one of
whom must be the principal executive officer, the principal
financial officer, the treasurer or the principal accounting
officer of the Company, that meets the requirements of
Section 12.05 hereof, and delivered to the Trustee.
"Opinion of Counsel" means an opinion from legal
counsel who is reasonably acceptable to the Trustee, that
meets the requirements of Section 12.05 hereof, and
delivered to the Trustee. The counsel may be an employee of
or counsel to the Company, any Subsidiary of the Company or
the Trustee.
"Other Notes" means the 91/2% Senior Subordinated
Notes due 2007 of the Company.
"Pari Passu Indebtedness" means any Indebtedness of
the Company that ranks pari passu with the Notes.
"Permitted Business" means the building products, home
improvement products and decorative accessory products
businesses and any other business reasonably related or
incidental thereto.
"Permitted Investments" means (a) any Investment in
the Company or in a Restricted Subsidiary (including in any
Equity Interests of a Restricted Subsidiary); (b) any
Investment in Cash Equivalents or Investment Grade
Securities; (c) any Investment by the Company or any
Restricted Subsidiary of the Company in a Person, if as a
result of such Investment (i) such Person becomes a
Restricted Subsidiary or (ii) such Person, in one
transaction or a series of substantially concurrent related
transactions, is merged, consolidated or amalgamated with or
into, or transfers or conveys substantially all of its
assets to, or is liquidated into, the Company or a
Restricted Subsidiary; (d) any securities received or other
Investments made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to
and in compliance with Section 4.10 hereof or in connection
with any other disposition of assets not constituting an
Asset Sale; (e) any acquisition of assets solely in exchange
for the issuance of Equity Interests (other than
Disqualified Stock) of the Company; (f) any Investments
relating to a Receivables Subsidiary; (g) loans or advances
to employees (or guarantees of third party loans to
employees) in the ordinary course of business; (h) stock,
obligations or securities received in satisfaction of
judgments or settlement of debts; (i) 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
(including such concessionary terms as the Company or such
Restricted Subsidiary deems reasonable); (j) any Investment
existing on the date hereof; (k) Hedging Obligations and
Currency Agreements otherwise permitted under this
Indenture; (l) any transaction to the extent it constitutes
an Investment that is permitted and made in accordance with
the provisions of clause (12) of Section 4.11; (m) any
Investment in a Permitted Business (other than an
Unrestricted Subsidiary) having an aggregate fair market
value, taken together with all other Investments made
pursuant to this clause (m) that are at that time
outstanding, not to exceed 15.0% of Total Assets at the time
of such Investment (with the fair market value of each
Investment being measured at the time made and without
giving effect to subsequent changes in value); and
(n) additional Investments having an aggregate fair market
value, taken together with all other Investments made
pursuant to this clause (n) that are at that time
outstanding, not to exceed 10.0% of Total Assets at the time
of such Investment (with the fair market value of each
Investment being measured at the time made and without
giving effect to subsequent changes in value).
"Permitted Junior Securities" shall mean debt or
equity securities of the Company or any successor
corporation issued pursuant to a plan of reorganization or
readjustment of the Company that are subordinated to the
payment of all then outstanding Senior Debt at least to the
same extent that the Notes are subordinated to the payment
of all Senior Debt on the date hereof, so long as (i) the
effect of the use of this defined term in Article 10 is not
to cause the Notes to be treated as part of (a) the same
class of claims as the Senior Debt or (b) any class of
claims pari passu with, or senior to, the Senior Debt for
any payment or distribution in any case or proceeding or
similar event relating to the liquidation, insolvency,
bankruptcy, dissolution, winding up or reorganization of the
Company and (ii) to the extent that any Senior Debt
outstanding on the date of consummation of any such plan of
reorganization or readjustment are not paid in full in cash
on such date, either (a) the holders of such Senior Debt not
so paid in full in cash have consented to the terms of any
such plan of reorganization or readjustment or (b) such
holders receive securities which constitute Senior Debt and
which have been determined by the relevant court to
constitute satisfaction in full in money or money's worth of
any Senior Debt not paid in full in cash.
"Permitted Liens" means (i) Liens securing Senior Debt
of the Company or a Restricted Subsidiary that was permitted
by the terms of this Indenture to be incurred; (ii) Liens in
favor of the Company or any Restricted Subsidiary; (iii)
Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Company or
any Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated
with the Company or a Restricted Subsidiary, as the case may
be; (iv) Liens on property existing at the time of
acquisition thereof by the Company or any Restricted
Subsidiary of the Company, provided that such Liens were in
existence prior to the contemplation of such acquisition;
(v) Liens to secure the performance of bids, tenders, trade
or government contracts (other than for borrowed money),
leases, licenses, statutory obligations, surety or appeal
bonds, performance bonds or other obligations of a like
nature incurred in the ordinary course of business; (vi)
without limitation of clause (i), Liens to secure
Indebtedness (including Capital Lease Obligations) permitted
by clause (v) of the second paragraph of Section 4.09 hereof
covering only the assets acquired with such Indebtedness;
(vii) Liens existing on the date hereof; (viii) Liens for
taxes, assessments or governmental charges or claims that
are not yet delinquent or that are being contested in good
faith by appropriate proceedings, provided that any reserve
or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor; (ix)
Liens on Receivables to reflect sales of Receivables to and
by the Receivables Subsidiary pursuant to the Receivables
Facility or securing Indebtedness permitted by paragraph
(ix) of Section 4.09 hereof; (x) Liens incurred in the
ordinary course of business of the Company or any Restricted
Subsidiary of the Company with respect to obligations that
do not exceed $5.0 million at any one time outstanding and
that (a) are not incurred in connection with the borrowing
of money or the obtaining of advances or credit (other than
trade credit in the ordinary course of business) and (b) do
not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the
operation of business by the Company or such Restricted
Subsidiary; (xi) carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business in respect of
obligations that are not yet due or that are bonded or that
are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are
maintained on the books of the Company or such Restricted
Subsidiary, as the case may be, in accordance with GAAP;
(xii) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social
security legislation; (xiii) easements (including reciprocal
easement agreements), rights-of-way, building, zoning and
similar restrictions, utility agreements, covenants,
reservations, restrictions, encroachments, changes, and
other similar encumbrances or title defects incurred, or
leases or subleases granted to others, in the ordinary
course of business, that do not in the aggregate materially
detract from the aggregate value of the properties of the
Company and its Subsidiaries, taken as a whole, or in the
aggregate materially interfere with or adversely affect in
any material respect the ordinary conduct of the business of
the Company and its Subsidiaries on the properties subject
thereto, taken as a whole; (xiv) Liens on goods (and the
proceeds thereof) and documents of title and the property
covered thereby securing Indebtedness in respect of
commercial letters of credit; (xv) (a) mortgages, liens,
security interests, restrictions, encumbrances or any other
matters of record that have been placed by any developer,
landlord or other third party on property over which the
Company or any Restricted Subsidiary of the Company has
easement rights or on any real property leased by the
Company on the date hereof and subordination or similar
agreements relating thereto and (b) any condemnation or
eminent domain proceedings affecting any real property;
(xvi) leases or subleases to third parties; (xvii) Liens in
connection with workmen's compensation obligations and
general liability exposure of the Company and its Restricted
Subsidiaries; (xviii) Liens arising by reason of a judgment,
decree or court order, to the extent not otherwise resulting
an Event of Default; (xix) Liens securing Hedging
Obligations and Currency Agreements entered into in the
ordinary course of business; (xx) without limitation of
clause (i), Liens securing Refinancing Indebtedness
permitted to be incurred under this Indenture or amendments
or renewals of Liens that were permitted to be incurred,
provided, in each case, that such Liens do not extend to an
additional property or asset; and (xxi) Liens that secure
Indebtedness of a Person existing at the time such Person
becomes a Restricted Subsidiary of the Company, provided
such Liens do not extend to any property or asset of any
other Restricted Subsidiary or the Company.
"Permitted Refinancing Indebtedness" means any
Indebtedness of the Company or any of its Restricted
Subsidiaries issued in exchange for, or the net proceeds of
which are used to extend, refinance, renew, replace, defease
or refund other Indebtedness of the Company or any of its
Restricted Subsidiaries; provided that: (i) the principal
amount (or accreted value, if applicable) of such Permitted
Refinancing Indebtedness does not exceed the principal
amount of (or accreted value, if applicable), plus accrued
interest on, the Indebtedness so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of
reasonable premium and fees and expenses incurred in
connection therewith); (ii) in the case of term
Indebtedness, such Permitted Refinancing Indebtedness has a
final maturity date later than the final maturity date of,
and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the
Indebtedness being extended, refinanced, renewed, replaced,
defeased or refunded; (iii) if the Indebtedness being
extended, refinanced, renewed, replaced, defeased or
refunded is subordinated in right of payment to the Notes,
such Permitted Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and is
subordinated in right of payment to, the Notes on terms at
least as favorable to the Holders of Notes as those
contained in the documentation governing the Indebtedness
being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the
obligor on the Indebtedness being extended, refinanced,
renewed, replaced, defeased or refunded.
"Permitted Transferee" means, with respect to any
Person, (i) any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect
common control with such specified Person, (ii) the spouse,
former spouse, lineal descendants, heirs, executors,
administrators, testamentary trustees, legatees or
beneficiaries of any such Person, (iii) a trust, the
beneficiaries of which, or a corporation or partnership or
limited liability company, the stockholders, general or
limited partners or members of which, include only such
Person or his or her spouse, lineal descendants or heirs, in
each case to whom such Person has transferred the beneficial
ownership of any securities of the Company and (iv) any
investment fund or investment entity that is a subsidiary of
such Person or a Permitted Transferee of such Person.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or
agency or political subdivision thereof (including any
subdivision or ongoing business of any such entity or
substantially all of the assets of any such entity,
subdivision or business).
"Receivables" means, collectively, (a) the
Indebtedness and other obligations owed to the Company or
any of its Subsidiaries (before giving effect to any sale or
transfer thereof pursuant to a Receivables Facility),
whether constituting an account, chattel paper, an
instrument, a document or general intangible, arising in
connection with the sale of goods, insurance and/or services
by the Company or such Subsidiary, including, without
limitation, the obligation to pay any late fees, interest or
other finance charges with respect thereto (each of the
foregoing, collectively, an "Account Receivable"), (b) all
of the Company's or such Subsidiary's interest in the goods
(including returned goods), if any, the sale of which gave
rise to any Account Receivable, and all insurance contracts
with respect thereto, (c) all other security interests or
Liens and property subject thereto from time to time, if
any, purporting to secure payment of any Account Receivable,
together with all financing statements and security
agreements describing any collateral securing such Account
Receivable, (d) all Guarantees, insurance and other
agreements or arrangements of whatever character from time
to time supporting or securing payment of any Account
Receivable, (e) all contracts, invoices, books and records
of any kind related to any Account Receivable, (f) all cash
collections in respect of, and cash proceeds of, any of the
foregoing and any and all lockboxes, lockbox accounts,
collection accounts, concentration accounts and similar
accounts in or into which such collections and cash proceeds
are now or hereafter deposited, collected or concentrated,
and (g) all proceeds of any of the foregoing.
"Receivables Facility" means, with respect to any
Person, any Receivables securitization or factoring program
pursuant to which such Person receives proceeds pursuant to
a sale, pledge or other encumbrance of its Receivables.
"Receivables Financing Amount" means at any date, with
respect to any Receivables Facility of any Person that does
not represent an incurrence of Indebtedness, the sum on such
date of (a) the aggregate uncollected balances of Accounts
Receivable (as defined in the definition of "Receivable")
transferred ("Transferred Receivables") in such Receivables
Facility plus (b) the aggregate amount of all collections of
Transferred Receivables theretofore received by such Person
but not yet remitted to the purchaser, net of all reserves
and holdbacks retained by or for the benefit of the
purchaser and net of any interest retained by such Person
and reasonable costs and expenses (including, without
limitation, fees and commissions and taxes other than income
taxes) incurred by such Person in connection therewith and
not payable to any Affiliate of such Person.
"Receivables Subsidiary" means any Subsidiary created
primarily to purchase or finance the receivables of the
Company and/or its Subsidiaries pursuant to a Receivables
Facility, so long as it: (a) has no Indebtedness other than
Non-Recourse Debt and (b) is a Person with respect to which
neither the Company nor any of its other Subsidiaries has
any direct obligation to maintain or preserve such Person's
financial condition or to cause such Person to achieve any
specified levels of operating results other than to act as
servicer of Receivables. If, at any time, such Receivables
Subsidiary would fail to meet the foregoing requirements as
a Receivables Subsidiary, it shall thereafter cease to be a
Receivables Subsidiary for purposes of this Indenture and
any Indebtedness of such Receivables Subsidiary shall be
deemed to be incurred by a Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the
Company shall be in default of such Section).
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 17, 1997, by and among
the Company and the other parties named on the signature
pages thereof, as such agreement may be amended, modified or
supplemented from time to time.
"Representative" means the indenture trustee or other
trustee, agent or representative for any Senior Debt.
"Responsible Officer," when used with respect to the
Trustee, means any officer within the Corporate Trust
Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily
performing functions similar to those performed by any of
the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Restricted Investment" means an Investment other than
a Permitted Investment.
"Restricted Subsidiary" of a Person means any
Subsidiary of the referent Person that is not an
Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended.
"Senior Credit Facility" means the Credit Agreement
dated as of June 17, 1997 among the Company and the
financial institutions named therein, The Chase Manhattan
Bank, as administrative agent, and Chase Securities Inc., as
arranger, and any related notes, collateral documents,
letters of credit and guarantees, including any appendices,
exhibits or schedules to any of the foregoing (as the same
may be in effect from time to time), in each case, as such
agreements may be amended, modified, supplemented or
restated from time to time, or refunded, refinanced,
restructured, replaced, renewed, repaid or extended from
time to time (whether with the original agents and lenders
or other agents or lenders or otherwise, and whether
provided under the original credit agreement or other credit
agreements or otherwise).
"Senior Debt" means (i) all Indebtedness of the
Company or any of its Restricted Subsidiaries outstanding
under Senior Credit Facility and all Hedging Obligations
with respect thereto, (ii) any other Indebtedness (including
Acquired Debt) permitted to be incurred by the Company or
one of its Restricted Subsidiaries under the terms of this
Indenture, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a
parity with or subordinated in right of payment to the Notes
or any Subsidiary Guarantee and (iii) all Obligations with
respect to the foregoing. Notwithstanding anything to the
contrary in the foregoing, Senior Debt shall not include (w)
any liability for federal, state, local or other taxes owed
or owing by the Company, (x) any Indebtedness of the Company
or any of its Restricted Subsidiaries to any of its
Subsidiaries or other Affiliates, (y) any trade payables or
(z) any Indebtedness that is incurred in violation of this
Indenture.
"Significant Subsidiary" means any Subsidiary that
would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the date
hereof.
"Specified Affiliate Payments" means: (i) the
repurchase, redemption or other acquisition or retirement
for value of any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any future,
present or former employee, director, officer or consultant
of the Company (or any of its Restricted Subsidiaries)
pursuant to any management equity subscription agreement,
stock option agreement, put agreement or similar agreement
that may be in effect from time to time; provided that the
aggregate price paid for all such repurchased, redeemed,
acquired or retired Equity Interests shall not exceed $2.5
million in any calendar year (with unused amounts in any
calendar year being carried over to succeeding calendar
years subject to a maximum amount of repurchases,
redemptions or other acquisitions pursuant to this clause
(i) (without giving effect to the immediately following
proviso) of $7.5 million in any calendar year) and no
payment default on Senior Debt or the Notes shall have
occurred and be continuing; provided further that such
amount in any calendar year may be increased by an amount
not to exceed (A) the cash proceeds received by the Company
since the date hereof from the sale of Equity Interests of
the Company to employees, directors, officers or consultants
of the Company and its Subsidiaries that occurs in such
calendar year (provided that such cash proceeds shall be
excluded from clause (c)(ii) of the first paragraph under
Section 4.07 hereof) plus (B) the cash proceeds from key man
life insurance policies received by the Company and its
Restricted Subsidiaries in such calendar year; and provided
further that cancellation of Indebtedness owing to the
Company from employees, directors, officers or consultants
of the Company or any of its Subsidiaries in connection with
a repurchase of Equity Interests of the Company shall not be
deemed to constitute a Restricted Payment for purposes of
this Indenture; (ii) repurchases of Equity Interests deemed
to occur upon exercise of stock options or warrants as a
result of the payment of all or a portion of the exercise
price of such options or warrants with Equity Interests;
(iii) payments by the Company to members of management of
the Company under the management incentive and equity
participation plans as a result of and upon the
Recapitalization to the extent disclosed in the Offering
Memorandum; and (iv) payments permitted under clauses (5),
(6), (8), (9) and (11) of the second paragraph of Section
4.11 hereof.
"Stated Maturity" means, with respect to any
installment of interest or principal on any series of
Indebtedness, the date on which such payment of interest or
principal was scheduled to be paid in the original
documentation governing such Indebtedness, and shall not
include any contingent obligations to repay, redeem or
repurchase any such interest or principal prior to the date
originally scheduled for the payment thereof.
"Subsidiary" means, with respect to any Person, (i)
any corporation, association or other business entity of
which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole
general partner or the managing general partner of which is
such Person or a Subsidiary of such Person or (b) the only
general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Subsidiary Distribution" means the dividend or
distribution by the Company of all the Equity Interests in
any one Subsidiary and its direct or indirect Subsidiaries
(collectively, a "Distributed Subsidiary") owned by the
Company or any of its Restricted Subsidiaries; provided that
(A) prior to such dividend or distribution, the Company
shall make an offer (a "Subsidiary Distribution Offer") to
all Holders of Notes and Other Notes to purchase the
principal amount (or, with respect to the Notes only, prior
to the Full Accretion Date, the Accreted Value) of Notes and
Other Notes equal to the product of (1) the outstanding
principal amount (or, with respect to the Notes only, prior
to the Full Accretion Date, the Accreted Value) of Notes and
Other Notes immediately prior to such dividend or
distribution, multiplied by (2) such portion of the
Consolidated Cash Flow of the Company and its Restricted
Subsidiaries (including the Distributed Subsidiary) for the
most recently ended four full fiscal quarters of the Company
(expressed as a decimal) as is attributable to the
Distributed Subsidiary (calculated as set forth in the
definition of Fixed Charge Coverage Ratio), at an offer
price in cash (the "Subsidiary Distribution Offer Payment")
in an amount equal to 101% of the principal amount thereof
plus accrued and unpaid interest and Liquidated Damages
thereon, if any (or, with respect to the Notes only, prior
to the Full Accretion Date, 101% of the Accreted Value
thereof plus Liquidated Damages thereon, if any), to the
date of purchase, in accordance with Section 3.10 hereof,
provided, however, that the Subsidiary Distribution shall
not occur in the Subsidiary Distribution Offer Period (as
defined), (B) each of S&P and Moody's confirms, in writing,
prior to such dividend or distribution, but following the
announcement of the results of the Subsidiary Distribution
Offer, that it will not downgrade its rating of the Notes or
the Other Notes, (C) immediately following the transaction,
the Fixed Charge Coverage Ratio of the Company for the most
recently ended four full fiscal quarters of the Company,
calculated giving pro forma effect to (1) such dividend or
distribution, (2) the repurchase of all Notes and Other
Notes irrevocably tendered for purchase pursuant to the
Subsidiary Distribution Offer and (3) any reduction of
Indebtedness of the Company and its Restricted Subsidiaries
that occurs concurrently with such dividend or distribution,
is greater than the Fixed Charge Coverage Ratio for such
four-quarter reference period immediately prior to such
dividend or distribution and Subsidiary Distribution Offer,
(D) no Default or Event of Default exists immediately
following the dividend or distribution or Subsidiary
Distribution Offer, (E) the Consolidated Cash Flow of the
Company and its remaining Restricted Subsidiaries for the
most recently ended four full fiscal quarters of the
Company, calculated giving pro forma effect to such dividend
or distribution, is not less than 60% of the Consolidated
Cash Flow of the Company and all of its Restricted
Subsidiaries (including the Distributed Subsidiary) for such
four-quarter reference period (calculated as set forth in
the definition of Fixed Charge Coverage Ratio, but without
giving pro forma effect to such dividend or distribution)
and (F) no other dividend or distribution of Equity
Interests in any Subsidiary has been made pursuant to clause
(vi) of Section 4.07 hereof subsequent to the date hereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
SectionSection 77aaa-77bbbb) as in effect on the date on
which this Indenture is qualified under the TIA.
"Total Assets" means, at any time, the total
consolidated assets of the Company and its Restricted
Subsidiaries at such time. For the purposes of paragraph
(iv) of Section 4.09 hereof, Total Assets shall be
determined giving pro forma effect to the lease,
acquisition, construction or improvement of the assets being
leased, acquired, constructed or improved with the proceeds
of the relevant Indebtedness.
"Transfer Restricted Securities" means securities that
bear or are required to bear the legend set forth in Section
2.06 hereof.
"Treasury Rate" means the yield to maturity at the
time of computation of United States Treasury securities
with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H. 15(519)
which has become publicly available at least two Business
Days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available
source or similar market data)) most nearly equal to the
period from the redemption date to June 15, 2002, provided,
however, that if the period from the redemption date to June
15, 2002 is not equal to the constant maturity of a United
States Treasury security for which a weekly average yield is
given, the Treasury Rate shall be obtained by linear
interpolation (calculated to the nearest one-twelfth of a
year) from the weekly average yields of United States
Treasury securities for which such yields are given, except
that if the period from the redemption date to June 15, 2002
is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a
constant maturity of one year shall be used.
"Trustee" means the party named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture and thereafter means the
successor serving hereunder.
"Unrestricted Subsidiary" means (i) any Receivables
Subsidiary in existence on the date hereof and (ii) any
other Subsidiary that is designated by the Board of
Directors as an Unrestricted Subsidiary pursuant to a Board
Resolution; but only to the extent that such Subsidiary: (a)
has no Indebtedness other than Non-Recourse Debt; (b) is not
party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not
Affiliates of the Company; (c) is a Person with respect to
which neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain
or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating
results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of
the Company or any of its Restricted Subsidiaries. Any such
designation by the Board of Directors shall be evidenced to
the Trustee by filing with the Trustee a certified copy of
the Board Resolution giving effect to such designation and
an Officers' Certificate certifying that such designation
complied with the foregoing conditions and was permitted by
Section 4.07 hereof. If, at any time, any Unrestricted
Subsidiary would fail to meet the foregoing requirements as
an Unrestricted Subsidiary, it shall thereafter cease to be
an Unrestricted Subsidiary for purposes of this Indenture
and any Indebtedness of such Subsidiary shall be deemed to
be incurred by a Restricted Subsidiary of the Company as of
such date (and, if such Indebtedness is not permitted to be
incurred as of such date under Section 4.09 hereof, the
Company shall be in default of such Section). The Board of
Directors of the Company may at any time designate any
Unrestricted Subsidiary to be a Restricted Subsidiary;
provided that such designation shall be deemed to be an
incurrence of Indebtedness by a Restricted Subsidiary of the
Company of any outstanding Indebtedness of such Unrestricted
Subsidiary and such designation shall only be permitted if
(i) such Indebtedness is permitted under Section 4.09
hereof, calculated on a pro forma basis as if such
designation had occurred at the beginning of the four-
quarter reference period, and (ii) no Default or Event of
Default would be in existence following such designation.
"Voting Stock" of any Person as of any date means the
Capital Stock of such Person that is at the time entitled to
vote in the election of the Board of Directors of such
Person.
"Weighted Average Life to Maturity" means, when
applied to any Indebtedness at any date, the number of years
obtained by dividing (i) the sum of the products obtained by
multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity,
in respect thereof, by (b) the number of years (calculated
to the nearest one-twelfth) that will elapse between such
date and the making of such payment, by (ii) the then
outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person
means a Restricted Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the
time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of such Person and one or more
Wholly Owned Restricted Subsidiaries of such Person.
Section 1.02. Other Definitions.
Defined in
Term Section
"Affiliate Transaction" 4.11
"Asset Sale Offer" 4.10
"Change of Control Offer" 3.09
"Change of Control Payment" 4.15
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Excess Proceeds" 4.10
"Excess Proceeds Offer" 3.09
"Excess Proceeds Amount" 4.10
"incur" 4.09
"Legal Defeasance" 8.02
"non-payment default" 10.03
"Noteholder" 10.01
"Offer Amount" 3.09
"Offer Period" 3.09
"payment default" 10.03
"Paying Agent" 2.03
"Payment Blockage Notice" 10.03
"Permitted Debt" 4.09
"Purchase Date" 3.09
"Repurchase Offer" 3.09
"Registrar" 2.03
"Restricted Payments" 4.07
"Subsidiary Distribution Offer Amount" 3.10
"Subsidiary Distribution Offer Period" 3.10
"Subsidiary Distribution Offer Purchase Date"
3.10
Section 1.03. Incorporation by Reference of Trust Indenture
Act
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made
a part of this Indenture.
The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means
the Trustee;
"obligor" on the Notes means the Company, the
Guarantors and any successor obligor upon the Notes.
All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another
statute or defined by SEC rule under the TIA have the mean
ings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) references to sections of or rules under the
Securities Act shall be deemed to include substitute,
replacement of successor sections or rules adopted by the
SEC from time to time.
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating.
The Notes and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit
A hereto. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage.
Each Note shall be dated the date of its authentication.
The Notes shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Guarantors and the Trustee,
by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
Notes issued in global form shall be substantially in
the form of Exhibit A attached hereto (including the text
referred to in footnotes 1 and 2 thereto). Notes issued in
definitive form shall be substantially in the form of
Exhibit A attached hereto (but without including the text
referred to in footnotes 1 and 2 thereto). Each Global Note
shall represent such of the outstanding Notes as shall be
specified therein and each shall provide that it shall
represent the aggregate amount of outstanding Notes from
time to time endorsed thereon and that the aggregate amount
of outstanding Notes represented thereby may from time to
time be reduced or increased, as appropriate, to reflect
exchanges and redemptions. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the
amount of outstanding Notes represented thereby shall be
made by the Trustee or the Note Custodian, at the direction
of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Notes for the Company by
manual or facsimile signature.
If an Officer whose signature is on a Note no longer
holds that office at the time a Note is authenticated, the
Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the
manual signature of the Trustee. The signature shall be
conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall, upon a written order of the Company
signed by two Officers, authenticate Notes for original
issue up to the aggregate principal amount stated in
paragraph 4 of the Notes. The aggregate principal amount of
Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Notes. An
authenticating agent may authenticate Notes whenever the
Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as
an Agent to deal with the Company or an Affiliate of the
Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where
Notes may be presented for registration of transfer or for
exchange ("Registrar") and an office or agency where Notes
may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company may appoint one or more
co-registrars and one or more additional paying agents. The
term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent or Registrar without
notice to any Holder. The Company shall notify the Trustee
in writing of the name and address of any Agent not a party
to this Indenture. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust
Company ("DTC") to act as Depository with respect to the
Global Notes.
The Company initially appoints the Trustee to act as
the Registrar and Paying Agent and to act as Note Custodian
with respect to the Global Notes.
Section 2.04. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than
the Trustee to agree in writing that the Paying Agent will
hold in trust for the benefit of Holders or the Trustee all
money held by the Paying Agent for the payment of principal,
premium or Liquidated Damages, if any, or interest on the
Notes, and will notify the Trustee of any default by the
Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all
money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to
the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have
no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05. 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 all Holders and shall
otherwise comply with TIA Section 312(a). If the Trustee is
not the Registrar, the Company and/or the Guarantors shall
furnish to the Trustee at least seven Business Days before
each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as
of such date as the Trustee may reasonably require of the
names and addresses of the Holders of Notes and the Company
and the Guarantors shall otherwise comply with TIA
Section 312(a).
Section 2.06. Transfer and Exchange.
(a) Transfer and Exchange of Definitive Notes.
When Definitive Notes are presented by a Holder to the
Registrar with a request:
(x) to register the transfer of the
Definitive Notes; or
(y) to exchange such Definitive Notes
for an equal principal amount of Definitive
Notes of other authorized denominations,
the Registrar shall register the transfer or make the
exchange as requested if its requirements for such
transactions are met; provided, however, that the Definitive
Notes presented or surrendered for register of transfer or
exchange:
(i) shall be duly endorsed or
accompanied by a written instruction of
transfer in form satisfactory to the
Registrar duly executed by such Holder or by
his attorney, duly authorized in writing; and
(ii) in the case of a Definitive
Note that is a Transfer Restricted Security,
such request shall be accompanied by the
following additional information and
documents, as applicable:
(A) if such Transfer
Restricted Security is being delivered to
the Registrar by a Holder for registration
in the name of such Holder, without
transfer, a certification to that effect
from such Holder (in substantially the
form of Exhibit B hereto); or
(B) if such Transfer
Restricted Security is being transferred
to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under
the Securities Act or pursuant to an
exemption from registration in accordance
with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective
registration statement under the
Securities Act, a certification to that
effect from such Holder (in substantially
the form of Exhibit B hereto); or
(C) if such Transfer
Restricted Security is being transferred
in reliance on another exemption from the
registration requirements of the
Securities Act, a certification to that
effect from such Holder (in substantially
the form of Exhibit B hereto) and an
Opinion of Counsel from such Holder or the
transferee reasonably acceptable to the
Company and to the Registrar to the effect
that such transfer is in compliance with
the Securities Act.
(b) Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be
exchanged for a beneficial interest in a Global Note except
upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Note, duly endorsed
or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
(i) if such Definitive Note is a Transfer
Restricted Security, a certification from the
Holder thereof (in substantially the form of
Exhibit B hereto) to the effect that such
Definitive Note is being transferred by such Holder
to a "qualified institutional buyer" (as defined in
Rule 144A under the Securities Act) in accordance
with Rule 144A under the Securities Act; and
(ii) whether or not such Definitive Note is a
Transfer Restricted Security, written instructions
from the Holder thereof directing the Trustee to
make, or to direct the Note Custodian to make, an
endorsement on the Global Note to reflect an
increase in the aggregate principal amount of the
Notes represented by the Global Note,
in which case the Trustee shall cancel such Definitive Note
in accordance with Section 2.11 hereof and cause, or direct
the Note Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depository
and the Note Custodian, the aggregate principal amount of
Notes represented by the Global Note to be increased
accordingly. If no Global Notes are then outstanding, the
Company shall issue and, upon receipt of an authentication
order in accordance with Section 2.02 hereof, the Trustee
shall authenticate a new Global Note in the appropriate
principal amount.
(c) Transfer and Exchange of Global Notes. The
transfer and exchange of Global Notes or beneficial
interests therein shall be effected through the Depository,
in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent
required by the Securities Act.
(d) Transfer of a Beneficial Interest in a
Global Note for a Definitive Note.
(i) Any Person having a beneficial
interest in a Global Note may upon request
exchange such beneficial interest for a
Definitive Note. Upon receipt by the Trustee of
written instructions or such other form of
instructions as is customary for the Depository,
from the Depository or its nominee on behalf of
any Person having a beneficial interest in a
Global Note, and, in the case of a Transfer
Restricted Security, the following additional
information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial
interest is being transferred to the
Person designated by the Depository as
being the beneficial owner, a
certification to that effect from such
Person (in substantially the form of
Exhibit B hereto); or
(B) if such beneficial
interest is being transferred to a
"qualified institutional buyer" (as
defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under
the Securities Act or pursuant to an
exemption from registration in accordance
with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective
registration statement under the
Securities Act, a certification to that
effect from the transferor (in
substantially the form of Exhibit B
hereto); or
(C) if such beneficial
interest is being transferred in reliance
on another exemption from the registration
requirements of the Securities Act, a
certification to that effect from the
transferor (in substantially the form of
Exhibit B hereto) and an Opinion of
Counsel from the transferee or transferor
reasonably acceptable to the Company and
to the Registrar to the effect that such
transfer is in compliance with the
Securities Act,
in which case the Trustee or the Note
Custodian, at the direction of the Trustee,
shall, in accordance with the standing
instructions and procedures existing between the
Depository and the Note Custodian, cause the
aggregate principal amount of Global Notes to be
reduced accordingly and, following such
reduction, the Company shall execute and, upon
receipt of an authentication order in accordance
with Section 2.02 hereof, the Trustee shall
authenticate and deliver to the transferee a
Definitive Note in the appropriate principal
amount.
(ii) Definitive Notes issued in exchange
for a beneficial interest in a Global Note
pursuant to this Section 2.06(d) shall be
registered in such names and in such authorized
denominations as the Depository, pursuant to
instructions from its direct or indirect
participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such
Definitive Notes to the Persons in whose names
such Notes are so registered.
(e) Restrictions on Transfer and Exchange of Global
Notes. Notwithstanding any other provision of this
Indenture (other than the provisions set forth in subsection
(f) of this Section 2.06), a Global Note may not be
transferred as a whole except by the Depository to a nominee
of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(f) Authentication of Definitive Notes in
Absence of Depository. If at any time:
(i) the Depository for the Notes
notifies the Company that the Depository is
unwilling or unable to continue as Depository
for the Global Notes and a successor Depository
for the Global Notes is not appointed by the
Company within 90 days after delivery of such
notice; or
(ii) the Company, at its sole discretion,
notifies the Trustee in writing that it elects
to cause the issuance of Definitive Notes under
this Indenture,
then the Company shall execute, and the Trustee shall, upon
receipt of an authentication order in accordance with
Section 2.02 hereof, authenticate and deliver, Definitive
Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such
Global Notes.
(g) Legends.
(i) Except as permitted by the following
paragraphs (ii) and (iii), each Note certificate
evidencing Global Notes and Definitive Notes
(and all Notes issued in exchange therefor or
substitution thereof) shall bear legends in
substantially the following form:
"THE NOTE (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
NOTE EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED
HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE NOTE EVIDENCED
HEREBY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH NOTE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1) (a) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 UNDER THE SECURITIES ACT OR (d) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
(AND BASED UPON AN OPINION OF COUNSEL IF THE
COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) 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 (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (1) ABOVE.
FOR PURPOSES OF SECTION 1272, 1273 AND
1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THIS SECURITY IS BEING ISSUED WITH
ORIGINAL ISSUE DISCOUNT; FOR EACH $1,000
PRINCIPAL AMOUNT OF THIS SECURITY, THE ISSUE
PRICE IS $599.82, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $400.18, THE ISSUE DATE IS JUNE 17,
1997 AND THE YIELD TO MATURITY IS 101/2% PER
ANNUM."
(ii) Upon any sale or transfer of a
Transfer Restricted Security (including any
Transfer Restricted Security represented by a
Global Note) pursuant to Rule 144 under the
Securities Act or pursuant to an effective
registration statement under the Securities Act:
(A) in the case of any Transfer
Restricted Security that is a Definitive
Note, the Registrar shall permit the Holder
thereof to exchange such Transfer Restricted
Security for a Definitive Note that does not
bear the first legend set forth in (i) above
and rescind any restriction on the transfer
of such Transfer Restricted Security; and
(B) in the case of any Transfer
Restricted Security represented by a Global
Note, such Transfer Restricted Security shall
not be required to bear the first legend set
forth in (i) above, but shall continue to be
subject to the provisions of Section 2.06(c)
hereof; provided, however, that with respect
to any request for an exchange of a Transfer
Restricted Security that is represented by a
Global Note for a Definitive Note that does
not bear the first legend set forth in (i)
above, which request is made in reliance upon
Rule 144, the Holder thereof shall certify in
writing to the Registrar that such request is
being made pursuant to Rule 144 (such
certification to be substantially in the form
of Exhibit B hereto).
(iii) Notwithstanding the foregoing, upon
consummation of the Exchange Offer, the Company
shall issue and, upon receipt of an
authentication order in accordance with Section
2.02 hereof, the Trustee shall authenticate
Series B Notes in exchange for Series A Notes
accepted for exchange in the Exchange Offer,
which Series B Notes shall not bear the first
legend set forth in (i) above, and the Registrar
shall rescind any restriction on the transfer of
such Notes, in each case unless the Holder of
such Series A Notes is either (A) a broker-
dealer, (B) a Person participating in the
distribution of the Series A Notes or (C) a
Person who is an affiliate (as defined in Rule
144A) of the Company.
(h) Cancellation and/or Adjustment of Global Notes.
At such time as all beneficial interests in Global Notes
have been exchanged for Definitive Notes, redeemed,
repurchased or cancelled, all Global Notes shall be returned
to or retained and cancelled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Note is
exchanged for Definitive Notes, redeemed, repurchased or
cancelled, the principal amount of Notes represented by such
Global Note shall be reduced accordingly and an endorsement
shall be made on such Global Note, by the Trustee or the
Notes Custodian, at the direction of the Trustee, to reflect
such reduction.
(i) General Provisions Relating to Transfers
and Exchanges.
(i) To permit registrations of
transfers and exchanges, the Company shall
execute and the Trustee shall authenticate
Definitive Notes and Global Notes at the
Registrar's request.
(ii) No service charge shall be
made to a Holder for any registration of
transfer or exchange, but the Company may
require payment of a sum sufficient to cover
any transfer tax or similar governmental
charge payable in connection therewith (other
than any such transfer taxes or similar
governmental charge payable upon exchange or
transfer pursuant to Sections 3.07, 3.09,
3.10, 4.07, 4.10, 4.15 and 9.05 hereto).
(iii) The Registrar shall not be
required to register the transfer of or
exchange any Note selected for redemption in
whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(iv) All Definitive Notes and
Global Notes issued upon any registration of
transfer or exchange of Definitive Notes or
Global Notes shall be the valid obligations
of the Company, evidencing the same debt, and
entitled to the same benefits under this
Indenture, as the Definitive Notes or Global
Notes surrendered upon such registration of
transfer or exchange.
(v) The Company shall not be
required:
(A) to issue, to register
the transfer of or to exchange Notes
during a period beginning at the opening
of business 15 days before the day of any
selection of Notes for redemption under
Section 3.02 hereof and ending at the
close of business on the day of selection;
or
(B) to register the transfer
of or to exchange any Note so selected for
redemption in whole or in part, except the
unredeemed portion of any Note being
redeemed in part; or
(C) to register the transfer
of or to exchange a Note between a record
date and the next succeeding interest
payment date.
(vi) Prior to due presentment for
the registration of a transfer of any Note,
the Trustee, any Agent and the Company may
deem and treat the Person in whose name any
Note is registered as the absolute owner of
such Note for the purpose of receiving
payment of principal of and interest on such
Notes, and neither the Trustee, any Agent nor
the Company shall be affected by notice to
the contrary.
(vii) The Trustee shall authenticate
Definitive Notes and Global Notes in
accordance with the provisions of Section
2.02 hereof.
Section 2.07. Replacement Notes.
If any mutilated Note is surrendered to the Trustee,
or the Company and the Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note,
the Company shall issue and the Trustee, upon the written
order of the Company signed by two Officers of the Company,
shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the
Company, an indemnity bond must be supplied by the Holder
that is sufficient in the judgment of the Trustee and the
Company to protect the Company, the Trustee, any Agent and
any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Company may charge for
its expenses in replacing a Note.
Every replacement Note is an additional obligation of
the Company and shall be entitled to all of the benefits of
this Indenture equally and proportionately with all other
Notes duly issued hereunder.
Section 2.08. Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by
it, those delivered to it for cancellation, those reductions
in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described
in this Section as not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not cease to be outstanding
because the Company, any Guarantor or an Affiliate of the
Company or any Guarantor holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof,
it ceases to be outstanding unless the Trustee receives
proof satisfactory to it that the replaced Note is held by a
bona fide purchaser.
If the principal amount of any Note is considered paid
under Section 4.01 hereof, it ceases to be outstanding and
interest on it ceases to accrue.
If the Paying Agent (other than the Company, a
Subsidiary or an Affiliate of any thereof) holds, on a
redemption date or maturity date, money sufficient to pay
Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
Section 2.09. Treasury Notes.
In determining whether the Holders of the required
principal amount of Notes have concurred in any direction,
waiver or consent, Notes owned by the Company, any Guarantor
or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control
with the Company or any Guarantor, shall be considered as
though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Notes
that a Trustee knows are so owned shall be so disregarded.
Section 2.10. Temporary Notes.
Until Definitive Notes are ready for delivery, the
Company may prepare and the Trustee shall authenticate
temporary Notes upon a written order of the Company signed
by two Officers of the Company. Temporary Notes shall be
substantially in the form of Definitive Notes but may have
variations that the Company considers appropriate for
temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes
in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of
the benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Notes to the
Trustee for cancellation. The Registrar and Paying Agent
shall forward to the Trustee any Notes surrendered to them
for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered
for registration of transfer, exchange, payment, replacement
or cancellation and shall destroy cancelled Notes (subject
to the record retention requirement of the Exchange Act).
Certification of the destruction of all cancelled Notes
shall be delivered to the Company. The Company may not
issue new Notes to replace Notes that it has paid or that
have been delivered to the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest payable on the
defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01 hereof. The
Company shall notify the Trustee in writing of the amount of
defaulted interest proposed to be paid on each Note and the
date of the proposed payment. The Company shall fix or
cause to be fixed each such special record date and payment
date, provided that no such special record date shall be
less than 10 days prior to the related payment date for such
defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of
the Company, the Trustee in the name and at the expense of
the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related
payment date and the amount of such interest to be paid.
ARTICLE 3
REDEMPTION AND PREPAYMENT
Section 3.01. Notices to Trustee.
If the Company elects to redeem Notes pursuant to the
optional redemption provisions of Section 3.07 hereof, it
shall furnish to the Trustee, at least 45 days but not more
than 60 days before a redemption date, an Officers'
Certificate setting forth (i) the clause of this Indenture
pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Notes to be
redeemed and (iv) the redemption price.
Section 3.02. Selection of Notes to Be Redeemed.
If less than all of the Notes and the Other Notes are
to be redeemed at any time, the Company shall select the
securities to be purchased on a pro rata basis (among the
Holders of the Notes and between the Notes and the Other
Notes, based upon the outstanding principal amount (and/or
Accreted Value, as applicable) thereof), with such
adjustments as may be deemed appropriate by the Company so
that only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased. If less than all of
the Notes are to be redeemed at any time, selection of Notes
for redemption will be made by the Trustee in compliance
with the requirements of the principal national securities
exchange, if any, on which the Notes are listed, or, if the
Notes are not so listed, on a pro rata basis (among the
Notes of such series only), by lot or by such method as the
Trustee shall deem fair and appropriate; provided that no
Notes of $1,000 or less shall be redeemed in part. Notices
of redemption shall be mailed by first class mail at least
30 but not more than 60 days before the redemption date to
each Holder of Notes to be redeemed at its registered
address. Notices of redemption may not be conditional. If
any Note is to be redeemed in part only, the notice of
redemption that relates to such Note shall state the portion
of the principal amount thereof to be redeemed. A new Note
in principal amount equal to the unredeemed portion thereof
will be issued in the name of the Holder thereof upon
cancellation of the original Note. Notes called for
redemption become due on the date fixed for redemption. On
and after the redemption date, interest ceases to accrue on
Notes or portions of them called for redemption (or, if such
redemption date is prior to the Full Accretion Date, the
Notes, or any portion of them called for redemption, cease
to accrete).
Section 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a
redemption date, the Company shall mail or cause to be
mailed, by first class mail, a notice of redemption to each
Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes to be redeemed and
shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be
redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion shall be issued
upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption
price;
(f) that, unless the Company defaults in making such
redemption payment, interest on Notes called for redemp
tion ceases to accrue on and after the redemption date
(or, if the redemption date is prior to the Full
Accretion Date, the Notes, or any portion of them called
for redemption, cease to accrete);
(g) the paragraph of the Notes and/or Section of
this Indenture pursuant to which the Notes called for
redemption are being redeemed; and
(h) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its
expense; provided, however, that the Company shall have
delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that
the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the
preceding paragraph.
Section 3.04. Effect of Notice of Redemption
Once notice of redemption is mailed in accordance with
Section 3.03 hereof, Notes called for redemption become
irrevocably due and payable on the redemption date at the
redemption price. A notice of redemption may not be
conditional.
Section 3.05. Deposit of Redemption Price
One Business Day prior to the redemption date, the
Company shall deposit with the Trustee or with the Paying
Agent money sufficient to pay the redemption price of and
accrued interest on all Notes to be redeemed on that date.
The Trustee or the Paying Agent shall promptly return to the
Company any money deposited with the Trustee or the Paying
Agent by the Company in excess of the amounts necessary to
pay the redemption price of, and accrued interest on, all
Notes to be redeemed.
If the Company complies with the provisions of the
preceding paragraph, on and after the redemption date,
interest shall cease to accrue on the Notes or the portions
of Notes called for redemption (or, if prior to the Full
Accretion Date, the Notes shall cease to accrete). If a
Note is redeemed on or after an interest record date but on
or prior to the related interest payment date, then any
accrued and unpaid interest shall be paid to the Person in
whose name such Note was registered at the close of business
on such record date. If any Note called for redemption
shall not be so paid upon surrender for redemption because
of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal
(or, if prior to the Full Accretion Date, the Notes shall
accrete), from the redemption date until such principal is
paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.01 hereof.
Section 3.06. Notes Redeemed in Part
Upon surrender of a Note that is redeemed in part, the
Company shall issue and, upon the Company's written request,
the Trustee shall authenticate for the Holder at the expense
of the Company a new Note equal in principal amount to the
unredeemed portion of the Note surrendered.
Section 3.07. Optional Redemption
(a) Except as described in clauses (b) and (c) below,
the Notes will not be redeemable at the Company's option
prior to June 15, 2002. Thereafter, the Notes will be
subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon,
if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on June 15 of the
years indicated below:
YEAR PERCENTAGE
2002 105.250%
2003 103.500%
2004 101.750%
2005 and thereafter 100.000%
(b) In addition, at any time and from time to
time, prior to June 15, 2000, the Company may, on any one or
more occasions, redeem up to 35% of the aggregate principal
amount at maturity of Notes at a redemption price of 110.5%
of the Accreted Value thereof (determined at the redemption
date), plus accrued and unpaid Liquidated Damages thereon,
if any, to the redemption date, with the net cash proceeds
of a public offering of common stock of the Company;
provided that at least 65% of the aggregate principal amount
at maturity of Notes remain outstanding immediately after
the occurrence of each such redemption; and provided,
further, that such redemption shall occur within 60 days of
the date of the closing of such public offering.
(c) At any time on or prior to June 15, 2002, the
Notes may be redeemed as a whole but not in part at the
option of the Company upon the occurrence of a Change of
Control, upon not less than 30 nor more than 60 days' prior
notice (but in no event may any such redemption occur more
than 90 days after the occurrence of such Change of Control)
mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the
principal amount thereof plus the Applicable Premium as of,
and accrued but unpaid interest and Liquidated Damages, if
any, to, the redemption date, subject to the right of
Holders on the relevant record date to receive interest due
on the relevant interest payment date.
Section 3.08. Mandatory Redemption
Except as set forth under Sections 4.10 and 4.15
hereof and except pursuant to a Subsidiary Distribution
Offer, the Company shall not be required to make mandatory
redemption payments with respect to the Notes.
Section 3.09. Repurchase Offers
(a) In the event that the Company shall be
required to commence an offer to all Holders to purchase
Notes (a "Repurchase Offer"), pursuant to Section 4.10
hereof (an "Excess Proceeds Offer"), or pursuant to Section
4.15 hereof (a "Change of Control Offer") the Company shall
follow the procedures specified below.
(i) Within 30 days after (A) a Change of Control
(unless (1) the Company is not required to make such offer
pursuant to Section 4.15(b) hereof or (2) all Notes have
been called for redemption pursuant to Section 3.07(c)
hereof) or (B) an Asset Sale Offer Triggering Event (as
defined), the Company shall (x) commence a Repurchase Offer,
which shall remain open for a period of 20 Business Days
following its commencement and no longer, except to the
extent that a longer period is required by applicable law
(the "Offer Period") and (y) send, by first class mail, a
notice to the Trustee and each of the Holders which shall
contain all instructions and materials necessary to enable
such Holders to tender Notes pursuant to such Repurchase
Offer. The notice, which shall govern the terms of the
Repurchase Offer, shall describe the transaction or
transactions that constitute the Change of Control or Asset
Sale Offer Triggering Event, as the case may be, and shall
state:
(A) that the Repurchase Offer is being made
pursuant to this Section 3.09 and Section 4.10 or 4.15
hereof, as the case may be.
(B) the principal amount of Notes (or, prior
to the Full Accretion Date, the Accreted Value)
required to be purchased pursuant to Section 4.10
hereof, in the case of an Excess Proceeds Offer, or
4.15 hereof, in the case of a Change of Control Offer
(the "Offer Amount"), the purchase price and, that on
the date specified in such notice (the "Purchase
Date"), which date shall be no earlier than 30 days and
no later than 60 days from the date such notice is
mailed and no earlier than 5 days after the termination
of the Offer Period, the Company shall repurchase all
Notes validly tendered and not withdrawn pursuant to
this Section 3.09 and 4.10 or 4.15, as applicable.
(C) that any Note not tendered or accepted
for payment shall continue to accrete or accrue
interest;
(D) that, unless the Company defaults in
making such payment, any Note accepted for payment
pursuant to the Repurchase Offer shall cease to accrue
interest after the Purchase Date (or, if prior to the
Full Accretion Date, such Note shall cease to accrete);
(E) that Holders electing to have a Note
purchased pursuant to an Repurchase Offer may elect to
have all or any portion of such Note purchased;
(F) that Holders electing to have a Note
purchased pursuant to any Repurchase Offer shall be
required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of
the Note, or such other customary documents of
surrender and transfer as the Company may reasonably
request, duly completed, or transfer by book-entry
transfer, to the Company, the Depositary, or the Paying
Agent at the address specified in the notice at least
three days before the Purchase Date;
(G) that Holders shall be entitled to
withdraw their election if the Company, the Depositary
or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a
telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase
and a statement that such Holder is withdrawing his
election to have such Note purchased;
(H) that, if the aggregate Accreted Value
and/or principal amount, as the case may be, of Notes
and Other Notes surrendered by Holders thereof exceeds
the Offer Amount, the Company shall select the
securities to be purchased on a pro rata basis (among
the Holders of the Notes and between the Notes and the
Other Notes, based upon the outstanding Accreted Value
(and/or principal amount, as applicable) thereof), with
such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of $1,000,
or integral multiples thereof, shall be purchased; and
(I) that Holders whose Notes were purchased
only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry
transfer).
(J) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Notes.
(ii) On (or at the Company's election, before)
the Purchase Date, the Company shall, (A) to the extent
lawful, accept for payment, on a pro rata basis to the
extent necessary, the Notes or portions thereof tendered
pursuant to the Repurchase Offer and not theretofore
withdrawn, or if less than the Offer Amount has been
tendered, all Notes tendered, and shall deliver to the
Trustee an Officers' Certificate stating that such Notes or
portions thereof were accepted for payment by the Company in
accordance with the terms of this Section 3.09, (B) deposit
with the Paying Agent an amount equal to the Change of
Control Payment or Excess Proceeds Payment in respect of all
Notes or portions thereof so tendered and (C) deliver or
cause to be delivered to the Trustee the Notes so accepted
together with an Officers' Certificate stating the aggregate
principal amount (or, prior to the Full Accretion Date, the
Accreted Value) of Notes or portions thereof being purchased
by the Company. The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case
not later than five days after the Purchase Date) mail or
deliver to each tendering Holder an amount equal to Change
of Control Payment or Excess Proceeds Payment, as
applicable, with respect to the Notes tendered by such
Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company shall authenticate and
mail or deliver such new Note to such Holder, in a principal
amount at maturity equal to the principal amount at maturity
of any unpurchased portion of the Note surrendered, provided
that each such new Note shall be in a principal amount at
maturity of $1,000 or an integral multiple thereof. Any
Note not so accepted shall be promptly mailed or delivered
by the Company to the Holder thereof. All Notes or portions
thereof purchased pursuant to the Repurchase Offer will be
cancelled by the Trustee. The Company shall publicly
announce the results of the Repurchase Offer on or as soon
as practicable after the Purchase Date, but in no case more
than five Business Days after the Purchase Date.
If the Company complies with the provisions of the
preceding paragraph, on and after the Purchase Date,
interest shall cease to accrue on the Notes or the portions
of Notes called for repurchase. If a Note is repurchased on
or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid
interest shall be paid to the Person in whose name such Note
was registered at the close of business on such record date.
If any Note called for repurchase shall not be so paid upon
surrender for repurchase because of the failure of the
Company to comply with the preceding paragraph, interest
shall be paid on the unpaid principal, from the Purchase
Date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each
case at the rate provided in the Notes and in Section 4.01
hereof.
(b) If the Purchase Date is on or after an
interest record date and on or before the related interest
payment date, any accrued and unpaid interest shall be paid
to the Person in whose name a Note is registered at the
close of business on such record date, and no additional
interest shall be payable to Holders who tender Notes
pursuant to the Repurchase Offer.
(c) The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations to the extent such
laws and regulations are applicable in connection with the
Repurchase Offer. To the extent that the provisions of any
applicable securities laws or regulations conflict with
provisions of this Section 3.09, the Company shall comply
with such securities laws and regulations and shall not be
deemed to have breached its obligations under this Section
by virtue thereof.
(d) Prior to complying with the provisions of
this Section 3.09, but in any event within 90 days following
a Change of Control or Asset Sale Offer Triggering Event, as
applicable, the Company shall either repay all outstanding
Senior Debt or obtain the requisite consents, if any, under
all agreements governing outstanding Senior Debt to permit
the repurchase of Notes required by this Section 3.09 and
Section 4.10 or 4.15, as applicable.
(e) Once notice of repurchase is mailed in
accordance with this Section 3.09, all Notes validly
tendered and not withdrawn (or if the Company is not
required to repurchase all of such Notes, then the pro rata
portion of such Notes that the Company may be required to
purchase pursuant to Section 3.02 and/or 4.10 hereof, as
applicable) become irrevocably due and payable on the
Purchase Date at the purchase price specified therein. A
notice of repurchase may not be conditional.
(f) Other than as specifically provided in this
Section 3.09 or Section 4.10 or 4.15, as applicable, any
purchase pursuant to this Section 3.09 shall be made
pursuant to the provisions of Sections 3.02 and 3.06 hereof.
Section 3.10. Subsidiary Distribution Offers
(a) In the event that the Company shall be
required to commence a Subsidiary Distribution Offer, the
Company shall follow the procedures specified below.
(i) At least 20 Business Days prior to any
Subsidiary Distribution, the Company shall (x) commence a
Subsidiary Distribution Offer, which shall remain open for a
period of at least 20 but not to exceed 30, Business Days
following its commencement and no longer, except to the
extent that a longer period is required by applicable law
(the "Subsidiary Distribution Offer Period") and (y) send,
by first class mail, a notice to the Trustee and each of the
Holders which shall contain all instructions and materials
necessary to enable such Holders to tender Notes pursuant to
such Subsidiary Distribution Offer. The notice, which shall
govern the terms of the Subsidiary Distribution Offer, shall
describe the transaction or transactions that constitute the
Subsidiary Distribution and shall state:
(A) that the Subsidiary Distribution Offer
is being made pursuant to this Section 3.10 and
Section 4.07 hereof.
(B) the principal amount and/or Accreted
Value of Notes required to be purchased pursuant to
this Section 3.10, Section 4.07 and the definition of
"Subsidiary Distribution" (the "Subsidiary Distribution
Offer Amount"), the purchase price and, that on the
date specified in such notice (the "Subsidiary
Distribution Offer Purchase Date"), which date shall be
no earlier than 30 days and no later than 60 days from
the date such notice is mailed and no earlier than 5
days after the termination of the Subsidiary
Distribution Offer Period, the Company shall repurchase
all Notes validly tendered and not withdrawn pursuant
to this Section 3.10 and 4.07.
(C) that any Note not tendered or accepted
for payment shall continue to accrete or accrue
interest;
(D) that, unless the Company defaults in
making such payment, any Note accepted for payment
pursuant to the Subsidiary Distribution Offer shall
cease to accrue interest after the Subsidiary
Distribution Offer Purchase Date (or, if the Subsidiary
Distribution Offer Purchase Date is prior to the Full
Accretion Date, shall cease to accrete);
(E) that Holders electing to have a Note
purchased pursuant to an Subsidiary Distribution Offer
may elect to have all or any portion of such Note
purchased;
(F) that Holders electing to have a Note
purchased pursuant to any Subsidiary Distribution Offer
shall be required to surrender the Note, with the form
entitled "Option of Holder to Elect Purchase" on the
reverse of the Note, or such other customary documents
of surrender and transfer as the Company may reasonably
request, duly completed, or transfer by book-entry
transfer, to the Company, the Depositary, or the Paying
Agent at the address specified in the notice at least
three days before the Subsidiary Distribution Offer
Purchase Date;
(G) that Holders shall be entitled to
withdraw their election if the Company, the Depositary
or the Paying Agent, as the case may be, receives, not
later than the expiration of the Subsidiary
Distribution Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the
Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder
is withdrawing his election to have such Note
purchased;
(H) that, if the aggregate principal amount
and/or Accreted Value, as the case may be, of Notes and
Other Notes surrendered by Holders thereof exceeds the
Offer Amount, the Company shall select the Notes to be
purchased on a pro rata basis (among the Holders of the
Notes and between the Notes and the Other Notes, based
upon the outstanding principal amount (or Accreted
Value, as applicable) thereof), with such adjustments
as may be deemed appropriate by the Company so that
only Notes in denominations of $1,000, or integral
multiples thereof, shall be purchased; and
(I) that Holders whose Notes were purchased
only in part shall be issued new Notes equal in
principal amount to the unpurchased portion of the
Notes surrendered (or transferred by book-entry
transfer).
(J) that no representation is made as to the
correctness or accuracy of the CUSIP number, if any,
listed in such notice or printed on the Notes.
(ii) On (or at the Company's election, before)
the Subsidiary Distribution Offer Purchase Date, the Company
shall, (A) to the extent lawful, accept for payment, on a
pro rata basis to the extent necessary, the Notes or
portions thereof tendered pursuant to the Subsidiary
Distribution Offer and not theretofore withdrawn, or if less
than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted
for payment by the Company in accordance with the terms of
this Section 3.10, (B) deposit with the Paying Agent an
amount equal to the Subsidiary Distribution Offer Payment in
respect of all Notes or portions thereof so tendered and
(C) deliver or cause to be delivered to the Trustee the
Notes so accepted together with an Officers' Certificate
stating the aggregate principal amount or Accreted Value, as
the case may be, of Notes or portions thereof being
purchased by the Company. The Company, the Depositary or
the Paying Agent, as the case may be, shall promptly (but in
any case not later than five days after the Subsidiary
Distribution Offer Purchase Date) mail or deliver to each
tendering Holder an amount equal to the Subsidiary
Distribution Offer Payment of the Notes tendered by such
Holder and accepted by the Company for purchase, and the
Company shall promptly issue a new Note, and the Trustee,
upon written request from the Company shall authenticate and
mail or deliver such new Note to such Holder, in a principal
amount equal to any unpurchased portion of the Note
surrendered, provided that each such new Note shall be in a
principal amount of $1,000 or an integral multiple thereof.
Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof. All Notes
or portions thereof purchased pursuant to the Subsidiary
Distribution Offer will be cancelled by the Trustee. The
Company shall publicly announce the results of the
Subsidiary Distribution Offer on or as soon as practicable
after the Subsidiary Distribution Offer Purchase Date, but
in no case more than five Business Days after the Subsidiary
Distribution Offer Purchase Date.
If the Company complies with the provisions of the
preceding paragraph, on and after the Subsidiary
Distribution Offer Purchase Date, interest shall cease to
accrue on the Notes or the portions of Notes called for
repurchase. If a Note is repurchased on or after an
interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Note was registered at
the close of business on such record date. If any Note
called for repurchase shall not be so paid upon surrender
for repurchase because of the failure of the Company to
comply with the preceding paragraph, interest shall be paid
on the unpaid principal, from the Subsidiary Distribution
Offer Purchase Date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid
principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
(b) If the Subsidiary Distribution Offer Purchase
Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid
interest shall be paid to the Person in whose name a Note is
registered at the close of business on such record date, and
no additional interest shall be payable to Holders who
tender Notes pursuant to the Subsidiary Distribution Offer.
(c) The Company shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any
other securities laws and regulations to the extent such
laws and regulations are applicable in connection with the
Subsidiary Distribution Offer. To the extent that the
provisions of any applicable securities laws or regulations
conflict with provisions of this Section 3.10, the Company
shall comply with such securities laws and regulations and
shall not be deemed to have breached its obligations under
this Section by virtue thereof.
(d) Prior to complying with the provisions of
this Section 3.10, but in any event prior to any Subsidiary
Distribution, the Company shall either repay all outstanding
Senior Debt or obtain the requisite consents, if any, under
all agreements governing outstanding Senior Debt to permit
the repurchase of Notes required by this Section 3.10, and
Section 4.07 and the definition of "Subsidiary
Distribution".
(e) Other than as specifically provided in this
Section 3.10, any purchase pursuant to this Section 3.10
shall be made pursuant to the provisions of Sections 3.02
and 3.06 hereof.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes
The Company shall pay or cause to be paid the
principal of, premium, if any, and interest on the Notes on
the dates and in the manner provided in the Notes.
Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the
Company or a Subsidiary thereof, holds as of 10:00 a.m.
Eastern Time on the due date money deposited by the Company
in immediately available funds and designated for and
sufficient to pay all principal, premium, if any, and
interest then due. The Company shall pay all Liquidated
Damages, if any, in the same manner on the dates and in the
amounts set forth in the Registration Rights Agreement.
The Company shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy
Code) on overdue principal at the rate equal to 1% per annum
in excess of the then applicable interest rate on the Notes
to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any
Bankruptcy Code) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace
period) at the same rate to the extent lawful.
Section 4.02. Maintenance of Office or Agency
The Company shall maintain in the Borough of
Manhattan, the City of New York, an office or agency (which
may be an office of the Trustee or an affiliate of the
Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and
where notices and demands to or upon the Company in respect
of the Notes and this Indenture may be served.
The Company shall give prompt written notice to the Trustee
of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate
one or more other offices or agencies where the Notes may be
presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an
office or agency in the Borough of Manhattan, the City of
New York for such purposes. The Company shall give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such
other office or agency.
The Company hereby designates the Corporate Trust
Office of the Trustee as one such office or agency of the
Company in accordance with Section 2.03.
Section 4.03. Reports
Whether or not required by the rules and
regulations of the SEC, so long as any Notes are
outstanding, the Company shall furnish to the Holders of
Notes (i) all quarterly and annual financial information
that would be required to be contained in a filing with the
SEC on Forms 10-Q and 10-K if the Company were required to
file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations"
that describes the financial condition and results of
operations of the Company and its consolidated Subsidiaries
and, with respect to the annual information only, a report
thereon by the Company's certified independent accountants
and (ii) all current reports that would be required to be
filed with the SEC on Form 8-K if the Company were required
to file such reports, in each case, within 15 days after the
Company would be required to file such information in
accordance with the time periods specified in the SEC's
rules and regulations. In addition, commencing after the
consummation of the Exchange Offer, whether or not required
by the rules and regulations of the SEC, the Company shall
file a copy of all such information and reports with the SEC
for public availability (unless the SEC will not accept such
a filing) within the time periods specified in the SEC's
rules and regulations. In addition, the Company has agreed
that, for so long as any Notes remain outstanding, it shall
furnish to the Holders upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.
Section 4.04. Compliance Certificate
(a) The Company shall deliver to the Trustee,
within 90 days after the end of each fiscal year, an
Officers' Certificate stating that a review of the
activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of
the signing Officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to
each such Officer signing such certificate, that to the best
of his or her knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in
this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions of
this Indenture (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of
Default of which he or she may have knowledge and what
action the Company is taking or proposes to take with
respect thereto) and that to the best of his or her
knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such
event has occurred, a description of the event and what
action the Company is taking or proposes to take with
respect thereto.
(b) So long as not contrary to the then current
recommendations of the American Institute of Certified
Public Accountants, the year-end financial statements
delivered pursuant to Section 4.03 above shall be
accompanied by a written statement of the Company's
independent public accountants (who shall be a firm of
established national reputation) that in making the
examination necessary for certification of such financial
statements, nothing has come to their attention that would
lead them to believe that the Company has violated any
provisions of Article 4 or Article 5 hereof or, if any such
violation has occurred, specifying the nature and period of
existence thereof, it being understood that such accountants
shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the
Notes are outstanding, deliver to the Trustee, forthwith
upon any Officer becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or
Event of Default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.05. Taxes
The Company shall pay, and shall cause each of its
Subsidiaries to pay, prior to delinquency, all material
taxes, assessments, and governmental levies except such as
are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse
in any material respect to the Holders of the Notes.
Section 4.06. Stay, Extension and Usury Laws
The Company and the Guarantors covenant (to the
extent that they may lawfully do so) that they shall not at
any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the
performance of this Indenture; and the Company and the
Guarantors (to the extent that they may lawfully do so)
hereby expressly waive all benefit or advantage of any such
law, and covenant that they shall not, by resort to any such
law, hinder, delay or impede the execution of any power
herein granted to the Trustee, but shall suffer and permit
the execution of every such power as though no such law has
been enacted.
Section 4.07. Restricted Payments
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly: (i)
declare or pay any dividend or make any other payment or
distribution (including, without limitation, any payment in
connection with any merger or consolidation) on account of
the Company's or any of its Restricted Subsidiaries' Equity
Interests (other than dividends or distributions payable in
Equity Interests (other than Disqualified Stock) of the
Company); (ii) purchase, redeem or otherwise acquire or
retire for value (including without limitation, in
connection with any merger or consolidation) any Equity
Interests of the Company or any direct or indirect parent of
the Company; (iii) make any payment on or with respect to,
or purchase, redeem, defease or otherwise acquire or retire
for value any Indebtedness that is subordinated to the
Notes, except (A) a payment of interest or principal at
Stated Maturity and (B) the purchase, repurchase or other
acquisition or retirement of Indebtedness in anticipation of
satisfying a sinking fund obligation, principal installment
or final maturity, in each case due within one year of the
date of purchase, repurchase or other acquisition or
retirement; or (iv) make any Restricted Investment (all such
payments and other actions set forth in clauses (i) through
(iv) above being collectively referred to as "Restricted
Payments"), unless, at the time of and after giving effect
to such Restricted Payment:
(a) no Default or Event of Default shall have
occurred and be continuing or would occur as a
consequence thereof; and
(b) the Company would, at the time of such
Restricted Payment and after giving pro forma effect
thereto as if such Restricted Payment had been made at
the beginning of the applicable four-quarter period,
have been permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof; and
(c) such Restricted Payment, together with the
aggregate amount of all other Restricted Payments made
by the Company and its Restricted Subsidiaries after
the date hereof (excluding Restricted Payments
permitted by the next succeeding paragraph), is less
than the sum (without duplication) of (i) 50% of the
Consolidated Net Income of the Company for the period
(taken as one accounting period) from the beginning of
the first fiscal quarter commencing after the date
hereof to the end of the Company's most recently ended
fiscal quarter for which internal financial statements
are available at the time of such Restricted Payment
(or, if such Consolidated Net Income for such period is
a deficit, less 100% of such deficit), plus (ii) 100%
of the aggregate net cash proceeds received by the
Company from the issue or sale (other than to a
Subsidiary) since the date hereof of, or from capital
contributions with respect to, Equity Interests of the
Company (other than Disqualified Stock), plus (iii) the
aggregate principal amount (or accreted value, if less)
of Indebtedness of the Company or any Restricted
Subsidiary issued since the date hereof (other than to
a Subsidiary) that has been converted into Equity
Interests (other than Disqualified Stock) of the
Company, plus (iv) 100% of the aggregate net cash
received by the Company or a Restricted Subsidiary of
the Company since the date hereof from (A) Restricted
Investments, whether through interest payments,
principal payments, dividends or other distributions
and payments, or the sale or other disposition (other
than to the Company or a Restricted Subsidiary) thereof
made by the Company and its Restricted Subsidiaries or
(B) a cash dividend from, or the sale (other than to
the Company or a Restricted Subsidiary) of the stock
of, an Unrestricted Subsidiary, plus (v) upon the
redesignation of an Unrestricted Subsidiary as a
Restricted Subsidiary, the fair market value of the
Investments of the Company and its Restricted
Subsidiaries (other than such Subsidiary) in such
Subsidiary.
The foregoing provisions will not prohibit:
(i) the payment of any dividend within 60 days
after the date of declaration thereof, if at said date of
declaration such payment would have complied with the
provisions of this Indenture;
(ii) (A) the redemption, repurchase, retirement,
defeasance or other acquisition of any Equity Interests or
subordinated Indebtedness of the Company in exchange for, or
out of the net cash proceeds of the substantially concurrent
sale (other than to a Restricted Subsidiary of the Company)
of, other Equity Interests of, or a capital contribution to,
the Company (other than any Disqualified Stock); provided
that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement,
defeasance or other acquisition shall be excluded from
clause (c) (ii) of the preceding paragraph;
(iii) the defeasance, redemption, repurchase,
retirement or other acquisition of subordinated Indebtedness
made by an exchange for, or with the net cash proceeds from
an incurrence of, Permitted Refinancing Indebtedness;
(iv) the payment of any dividend by a Restricted
Subsidiary of the Company to the holders of its common
Equity Interests on a pro rata basis;
(v) to the extent constituting Restricted
Payments, the Specified Affiliate Payments;
(vi) the Subsidiary Distribution; and
(vii) payments that would otherwise be Restricted
Payments in an aggregate amount not to exceed $10.0 million.
The Board of Directors may designate any
Restricted Subsidiary to be an Unrestricted Subsidiary if
such designation would not cause a Default. For purposes of
making such determination, all outstanding Investments by
the Company and its Restricted Subsidiaries (except to the
extent repaid in cash) in the Subsidiary so designated shall
be deemed to be Restricted Payments at the time of such
designation and shall reduce the amount available for
Restricted Payments under the first paragraph of this
Section 4.07. The amount of such outstanding Investments
shall be equal to the portion 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 that is represented by the interest of the
Company and its Restricted Subsidiaries in such Subsidiary,
in each case as determined in good faith by the Board of
Directors of the Company. Such designation shall only be
permitted if such Restricted Payment would be permitted at
such time and if such Restricted Subsidiary otherwise meets
the definition of an Unrestricted Subsidiary.
The amount of all Restricted Payments (other than
cash) shall be the fair market value on the date of the
Restricted Payment of the asset(s) or securities proposed to
be transferred or issued by the Company or such Restricted
Subsidiary, as the case may be, pursuant to the Restricted
Payment. The fair market value of any non-cash Restricted
Payment shall be determined in good faith by the Board of
Directors of the Company.
Section 4.08. Dividend and Other Payment Restrictions
Affecting Subsidiaries
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly,
create or otherwise cause or suffer to exist or become
effective any consensual encumbrance or restriction on the
ability of any Restricted Subsidiary to (i)(a) pay dividends
or make any other distributions to the Company or any of its
Restricted Subsidiaries (1) on its Capital Stock or (2) with
respect to any other interest or participation in, or
measured by, its profits, or (b) pay any indebtedness owed
to the Company or any of its Restricted Subsidiaries, (ii)
make loans or advances to the Company or any of its
Restricted Subsidiaries or (iii) transfer any of its
properties or assets to the Company or any of its Restricted
Subsidiaries, except for such encumbrances or restrictions
existing under or by reason of (a) Existing Indebtedness as
in effect on the date hereof, (b) the provisions of security
or pledge agreements (or similar agreements) restricting
transfers of the assets secured thereby, (c) this Indenture,
the Notes and the Subsidiary Guarantees, (d) any agreement
or other instrument of a Person acquired by the Company or
any of its Restricted Subsidiaries as in effect at the time
of such acquisition (but not created in connection with or
in contemplation of such acquisition), which encumbrance or
restriction is not applicable to any Person, or the
properties or assets of any Person, other than the Person,
or the property or assets of the Person, so acquired, (e) by
reason of customary non-assignment provisions in leases
entered into in the ordinary course of business, (f)
purchase money obligations (including Capital Lease
Obligations) for property acquired in the ordinary course of
business that impose restrictions of the nature described in
clause (iii) above on the property so acquired, (g)
restrictions created in connection with any Receivables
Facility that, in the good faith determination of the Board
of Directors or senior management of the Company, are
necessary or advisable to effect such Receivables Facility,
(h) in the case of clause (iii), any encumbrance or
restriction (1) that restricts in a customary manner the
subletting, assignment, or transfer of any property or asset
that is subject to a lease, license or similar contract, (2)
by virtue of any transfer of, agreement to transfer, option
or right with respect to, or Lien on, any property or assets
of the Company or any Restricted Subsidiary not otherwise
prohibited by this Indenture or (3) contained in security
agreements or mortgages securing Indebtedness of a
Restricted Subsidiary to the extent such encumbrance or
restrictions restrict the transfer of the property subject
to such security agreements or mortgages, (i) contracts for
the sale of assets, including, without limitation, any
restriction with respect to a Restricted Subsidiary imposed
pursuant to an agreement entered into for the sale or
disposition of all or substantially all of the Capital Stock
or assets of such Restricted Subsidiary pending the closing
of such sale or disposition, (j) contractual encumbrances or
restrictions in effect on the date hereof, including,
without limitation, pursuant to the Senior Credit Facility
and its related documentation, (k) restrictions on cash or
other deposits or net worth imposed by leases, credit
agreements or other agreements entered into in the ordinary
course of business, (l) customary provisions in joint
venture agreements and other similar agreements, (m) any
encumbrances or restrictions created with respect to
Indebtedness of Restricted Subsidiaries permitted to be
incurred subsequent to the date hereof pursuant to the
provision of Section 4.09 hereof and (n) any encumbrances or
restrictions of the type referred to in clauses (i), (ii)
and (iii) imposed by any amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacements or refinancings of the contracts, instruments
or obligations referred to in clauses (a) through (n),
provided that such amendments, modifications, restatements,
renewals, increases, supplements, refundings, replacements
or refinancings are, in the good faith judgment of the
Company, no more restrictive with respect to such dividend
and other payment restrictions than those contained in the
dividend or other payment restrictions prior to such
amendment, modification, restatement, renewal, increase,
supplement, refunding, replacement or refinancing.
Section 4.09. Incurrence of Indebtedness and Issuance of
Preferred Stock
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly,
create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable, contingently or otherwise,
with respect to (collectively, "incur") any Indebtedness
(including Acquired Debt) and that the Company shall not
issue any Disqualified Stock and shall not permit any of its
Restricted Subsidiaries to issue any shares of preferred
stock; provided, however, that the Company and its
Restricted Subsidiaries may incur Indebtedness (including
Acquired Debt) or issue shares of Disqualified Stock and the
Restricted Subsidiaries may issue preferred stock, if the
Fixed Charge Coverage Ratio for the Company's most recently
ended four full fiscal quarters for which internal financial
statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such
Disqualified Stock or preferred stock is issued would have
been at least 1.75 to 1, if such Indebtedness is incurred or
such Disqualified Stock or preferred stock is issued on or
prior to June 30, 1999, and 2.00 to 1, if such Indebtedness
is incurred or such Disqualified Stock or preferred stock is
issued thereafter, in each case, determined on a pro forma
basis (including a pro forma application of the net proceeds
therefrom), as if the additional Indebtedness had been
incurred, or the Disqualified Stock or preferred stock had
been issued, as the case may be, at the beginning of such
four-quarter period.
The provisions of the first paragraph of this
Section 4.09 will not apply to the incurrence of any of the
following items of Indebtedness (collectively, "Permitted
Debt"):
(i) the incurrence by the Company of term and
revolving Indebtedness and letters of credit (with letters
of credit being deemed to have a principal amount equal to
the undrawn face amount thereof) under Credit Facilities;
provided that the aggregate principal amount of such
Indebtedness after giving effect to such incurrence,
including all Permitted Refinancing Indebtedness incurred to
refund, refinance or replace any other Indebtedness incurred
pursuant to this clause (i), does not exceed an amount equal
to $300.0 million less (A) the aggregate amount of any Net
Proceeds of Asset Sales that have been applied since the
date hereof to repay Indebtedness incurred under this clause
(i) (or any such Permitted Refinancing Indebtedness)
pursuant to clause (a) of the first sentence of the second
paragraph of Section 4.10 hereof and less (B) subsequent to
any Subsidiary Distribution, an amount equal to the product
of (1) the maximum amount of Indebtedness otherwise
permitted to be outstanding under the terms of this clause
(i) at the date of such Subsidiary Distribution and (2) a
fraction, the numerator of which shall be (x) the
Consolidated Cash Flow of the Company and all of its
Restricted Subsidiaries (including the Distributed
Subsidiary) for the four full fiscal quarters immediately
preceding such Subsidiary Distribution minus (y) the
Consolidated Cash Flow of the Company and its remaining
Restricted Subsidiaries for such four-quarter reference
period, calculated giving pro forma effect to such
Subsidiary Distribution, and the denominator of which shall
be the Consolidated Cash Flow of the Company and all of its
Restricted Subsidiaries (including the Distributed
Subsidiary) for such four-quarter reference period;
(ii) the incurrence by the Company and its Restricted
Subsidiaries of Existing Indebtedness;
(iii) the incurrence by the Company of Indebtedness
represented by the Notes and by the Guarantors of
Indebtedness represented by the Subsidiary Guarantees;
(iv) the incurrence by the Company or any of its
Restricted Subsidiaries of (A) Acquired Debt or (B)
Indebtedness (including Capital Lease Obligations) for the
purpose of financing or refinancing all or any part of the
lease, purchase price or cost of construction or improvement
of any property (real or personal) or other assets that are
used or useful in the business of the Company or such
Restricted Subsidiary (whether through the direct purchase
of assets or the Capital Stock of any Person owning such
assets and whether such Indebtedness is owed to the seller
or Person carrying out such construction or improvement or
to any third party), in an aggregate principal amount at the
date of such incurrence (including all Permitted Refinancing
Indebtedness incurred to refund, refinance or replace any
other Indebtedness incurred pursuant to this clause (iv))
not to exceed an amount equal to 10.0% of Total Assets;
provided that, in the case of Indebtedness exceeding $2.0
million incurred pursuant to this clause (iv), such
Indebtedness exists at the date of such purchase or
transaction or is created within 180 days thereafter;
(v) the incurrence by the Company or any of its
Restricted Subsidiaries of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which
are used to refund, refinance or replace Indebtedness (other
than intercompany Indebtedness) that was permitted by this
Indenture to be incurred;
(vi) the incurrence by the Company or any of its
Restricted Subsidiaries of intercompany Indebtedness between
or among the Company and any of its Restricted Subsidiaries,
including, without limitation, any Indebtedness arising in
connection with a Receivables Facility; provided, however,
that (A) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness being held
by a Person other than the Company or a Restricted
Subsidiary and (B) any sale or other transfer of any such
Indebtedness to a Person that is not either the Company or a
Restricted Subsidiary shall be deemed, in each case, to
constitute an incurrence of such Indebtedness by the Company
or such Restricted Subsidiary, as the case may be that was
not permitted by this clause (vi);
(vii) the incurrence by the Company or any of its
Restricted Subsidiaries of Hedging Obligations that are
incurred (A) for the purpose of fixing or hedging interest
rate risk with respect to any floating rate Indebtedness
that is permitted by the terms of this Indenture to be
outstanding or (B) for the purpose of fixing or hedging
currency exchange rate risk incurred in the ordinary course
of business;
(viii) the guarantee by the Company or any of the
Guarantors of Indebtedness of the Company or a Restricted
Subsidiary of the Company that was permitted to be incurred
by another provision of this Section 4.09;
(ix) the incurrence of Indebtedness secured by
Receivables, provided that the aggregate principal amount of
such Indebtedness incurred pursuant to this clause (ix) does
not, at any time, exceed an amount equal to $100.0 million
less the aggregate Receivable Financing Amount of all
Receivables Facilities of the Company and its Restricted
Subsidiaries;
(x) the incurrence by the Company or any of its
Restricted Subsidiaries of Indebtedness under (or
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; provided, however,
that upon the drawing of such letters of credit, such
obligations are reimbursed within 30 days following such
drawing;
(xi) the incurrence by the Company or any of its
Restricted Subsidiaries of additional Indebtedness (which
may comprise Indebtedness under the Senior Credit Facility)
in an aggregate principal amount (or accreted value, as
applicable) at any time outstanding, including all Permitted
Refinancing Indebtedness incurred to refund, refinance or
replace any other Indebtedness incurred pursuant to this
clause (xi), not to exceed an amount equal to $30.0 million.
For purposes of determining compliance with this
Section 4.09, in the event that an item of Indebtedness
meets the criteria of more than one of the categories of
Permitted Debt described in clauses (i) through (xi) above
or is entitled to be incurred pursuant to the first
paragraph of this Section 4.09, the Company shall, in its
sole discretion, classify such item of Indebtedness in any
manner that complies with this Section 4.09 and such item of
Indebtedness will be treated as having been incurred
pursuant to only one of such clauses or pursuant to the
first paragraph hereof; provided that all outstanding
Indebtedness under the Senior Credit Facility immediately
following the Recapitalization shall be deemed to have been
incurred pursuant to clause (i) of the definition of
Permitted Debt. Accrual of interest and the accretion of
accreted value will not be deemed to be an incurrence of
Indebtedness for purposes of this Section 4.09.
Section 4.10. Asset Sales
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, consummate an Asset Sale
unless (i) the Company (or the Restricted Subsidiary, as the
case may be) receives consideration at the time of such
Asset Sale at least equal to the fair market value of the
assets or Equity Interests issued or sold or otherwise
disposed of and (ii) at least 75% of the consideration
therefor received by the Company or such Restricted
Subsidiary is in the form of cash or Cash Equivalents;
provided that the amount of (x) any liabilities (as shown on
the Company's or such Restricted Subsidiary's most recent
balance sheet), of the Company or any Restricted Subsidiary
(other than liabilities that are by their terms subordinated
to the Notes or, in the case of liabilities of a Restricted
Subsidiary, the Subsidiary Guarantee of such Subsidiary)
that are assumed by the transferee of any such assets and
(y) any securities, notes or other obligations received by
the Company or any such Restricted Subsidiary from such
transferee that are converted by the Company or such
Restricted Subsidiary into cash (to the extent of the cash
received) within 180 days after receipt, shall be deemed to
be cash for purposes of this provision; provided further,
however, that this clause (ii) shall not apply to any sale
of interests in Unrestricted Subsidiaries.
Within 360 days after the receipt of any Net
Proceeds from an Asset Sale, the Company may apply such Net
Proceeds, at its option, (a) to repay Senior Debt or Pari
Passu Indebtedness (provided that if the Company shall so
reduce Pari Passu Indebtedness, it shall equally and ratably
make an Asset Sale Offer (in accordance with the procedures
set forth below for an Asset Sale Offer) to all Holders),
(b) to invest properties and assets that will be used or
useful in the business of the Company or any of its
Subsidiaries or (c) to the acquisition of a controlling
interest in another business, the making of a capital
expenditure or the acquisition of other assets, in each
case, in the same or a similar line of business as the
Company was engaged in on the date hereof. Pending the
final application of any such Net Proceeds, the Company may
temporarily reduce borrowings under a Credit Facility or
otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture. Any Net Proceeds from Asset
Sales that are not applied or invested as provided in the
first sentence of this paragraph will be deemed to
constitute "Excess Proceeds." When the aggregate amount of
Excess Proceeds exceeds $5.0 million, the Company shall (i)
make an offer to all Holders of Notes, and (ii) prepay,
purchase or redeem (or make an offer to do so) any other
Pari Passu Indebtedness of the Company in accordance with
provisions requiring the Company to prepay, purchase or
redeem such Indebtedness with the proceeds from any asset
sales (or offer to do so), pro rata in proportion to the
respective principal amounts (or accreted value, as
applicable) of the Notes and such other Indebtedness
required to be prepaid, purchased or redeemed or tendered
for pursuant to such offer (an "Asset Sale Offer") to
purchase the maximum principal amount of Notes that may be
purchased out of the Excess Proceeds (the "Excess Proceeds
Amount"), at an offer price in cash in an amount equal to
100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any (or, if such
Asset Sale Offer is prior to the Full Accretion Date, 100%
of the Accreted Value thereof on the date of purchase, plus
accrued and unpaid Liquidated Damages, if any), to the date
of purchase, in accordance with the procedures set forth in
Section 3.09 hereof. To the extent that the aggregate
principal amount of Notes (or, prior to the Full Accretion
Date only, the aggregate Accreted Value of Notes) tendered
pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company may use any remaining Excess Proceeds
for general corporate purposes. Upon completion of such
offer to purchase, the amount of Excess Proceeds shall be
reset at zero.
Section 4.11. Transactions with Affiliates
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, make any payment to, or
sell, lease, transfer or otherwise dispose of any of its
properties or assets to, or purchase any property or assets
from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or
guarantee with, or for the benefit of, any Affiliate (each
of the foregoing, an "Affiliate Transaction"), unless (i)
such Affiliate Transaction is on terms that are no less
favorable to the Company or the relevant Restricted
Subsidiary than those that would have been obtained in a
comparable transaction by the Company or such Restricted
Subsidiary with an unrelated Person and (ii) the Company
delivers to the Trustee (a) with respect to any Affiliate
Transaction entered into after the date hereof involving
aggregate consideration in excess of $3.0 million, a
resolution of the Board of Directors set forth in an
Officers' Certificate certifying that such Affiliate
Transaction complies with clause (i) above and that such
Affiliate Transaction has been approved by a majority of the
members of the Board of Directors and (b) with respect to
any Affiliate Transaction involving aggregate consideration
in excess of $10.0 million, an opinion as to the fairness to
the Holders of such Affiliate Transaction from a financial
point of view issued by an investment banking, appraisal or
accounting firm of national standing. In addition, the
following will not be deemed to be Affiliate Transactions:
(1) the provision of administrative or management services
by the Company or any of its officers to any of its
Restricted Subsidiaries in the ordinary course of business,
(2) any employment agreement, collective bargaining
agreement, employee benefit plan, related trust agreement or
any similar arrangement heretofore or hereafter entered into
in the ordinary course of business, (3) transactions between
or among the Company and/or its Restricted Subsidiaries, (4)
Restricted Payments that are permitted by Section 4.07
hereof (other than clause (viii) of the second paragraph
thereof), (5) payment of compensation to employees,
officers, directors or consultants in the ordinary course of
business, (6) maintenance in the ordinary course of business
(and payments required thereby) of benefit programs, or
arrangements for employees, officers or directors, including
vacation plans, health and life insurance plans, deferred
compensation plans, directors' and officers' indemnification
agreements and retirement or savings plans and similar
plans, (7) loans or advances to employees (or guarantees of
third party loans to employees) in the ordinary course of
business, (8) sales of Receivables to a Receivables
Subsidiary, (9) the payment of annual management, consulting
and advisory fees and related expenses to Investcorp and its
Affiliates (whether or not such Persons are Affiliates of
the Company), (10) payments by the Company or any of its
Restricted Subsidiaries to Investcorp and its Affiliates
(whether or not such Persons are Affiliates of the Company)
made for any financial advisory, financing, underwriting or
placement services or in respect of other investment banking
activities, including, without limitation, in connection
with acquisitions or divestitures, which payments are
approved by the Board of Directors of the Company in good
faith, (11) any agreement as in effect as of the date hereof
or any amendment thereto (so long as any such amendment is
not disadvantageous to the Holders in any material respect)
or any transaction contemplated thereby, (12) the payment of
all fees and expenses related to the Merger and the
Recapitalization, (13) transactions with customers, clients,
suppliers, or purchasers or sellers of goods or services, in
each case in the ordinary course of business and otherwise
in compliance with the terms of this Indenture which are
fair to the Company or its Restricted Subsidiaries, in the
reasonable determination of the Board of Directors of the
Company or the senior management thereof, or are on terms at
least as favorable as might reasonably have been obtained at
such time from an unaffiliated party, (14) the existence of,
or the performance by the Company or any of its Restricted
Subsidiaries of its obligations under the terms of, any
stockholders agreement (including any registration rights
agreement or purchase agreement related thereto) to which it
is a party as of the date hereof, any amendments thereto and
any similar agreements which it may enter into thereafter;
provided, however, that the existence of, or the performance
by the Company or any of its Restricted Subsidiaries of
obligations under any such future amendment to any such
existing agreement or under any such similar agreement
entered into after the date hereof shall only be permitted
by this clause (14) to the extent that the terms of any such
amendment or new agreement are not more disadvantageous to
the Holders in any material respect than those in effect on
the date hereof, and (15) Indebtedness permitted by
paragraph (vi) or, to the extent such Indebtedness is on
terms that are no less favorable to the Company or the
relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction with an unrelated
Person, paragraph (xi) of Section 4.09 hereof.
Section 4.12. Liens
The Company shall not, and shall not permit any of
its Restricted Subsidiaries to, create, incur, assume or
otherwise cause or suffer to exist or become effective any
Lien of any kind securing Indebtedness or trade payables
(other than Permitted Liens) upon any of their property or
assets, now owned or hereafter acquired, unless all payments
due under this Indenture and the Notes are secured on an
equal and ratable basis with the obligations so secured
until such time as such obligations are no longer secured by
a Lien.
Section 4.13. Business Activities.
The Company shall not, and shall not permit any
Restricted Subsidiary to, engage in any business other than
Permitted Businesses, except to such extent as is not
material to the Company and its Restricted Subsidiaries
taken as a whole.
Section 4.14. Corporate Existence
Subject to Article 5 hereof, the Company shall do
or cause to be done all things necessary to preserve and
keep in full force and effect (i) its corporate existence,
and the corporate, partnership or other existence of each of
its Subsidiaries, in accordance with the respective organ
izational documents (as the same may be amended from time to
time) of the Company or any such Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of
the Company and its Subsidiaries; provided, however, that
the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership
or other existence of any of its Subsidiaries, if the Board
of Directors shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the
Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the
Holders of the Notes.
Section 4.15. Offer to Repurchase Upon Change of Control
(a) Upon the occurrence of a Change of Control,
unless all Notes have been called for redemption pursuant to
Section 3.07(c), each Holder of Notes will have the right to
require the Company to repurchase all or any part (equal to
$1,000 or an integral multiple thereof) of such Holder's
Notes pursuant to the offer described below (the "Change of
Control Offer") at an offer price in cash (the "Change of
Control Payment") equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase
(or, if such Change of Control Offer occurs prior to the
Full Accretion Date, 101% of the Accreted Value thereof on
the date of repurchase plus accrued and unpaid Liquidated
Damages, if any).
(b) The Company shall not be required to make a
Change of Control Offer upon a Change of Control if a third
party makes the Change of Control Offer in the manner, at
the times and otherwise in compliance with the requirements
set forth in Section 3.09 and purchases all Notes validly
tendered and not withdrawn under such Change of Control
Offer.
Section 4.16. No Senior Subordinated Debt
(i) The Company shall not incur any Indebtedness
that is subordinate or junior in right of payment to any
Senior Debt and senior in any respect in right of payment to
the Notes and (ii) no Guarantor shall incur any Indebtedness
that is subordinate or junior in right of payment to the
Senior Debt and senior in any respect in right of payment to
the Subsidiary Guarantees.
Section 4.17. Subsidiary Guarantees
All current and future Subsidiaries of the Company
substantially all of whose assets are located in the United
States or that conduct substantially all of their business
in the United States, other than Subsidiaries that have been
properly been designated as Unrestricted Subsidiaries in
accordance with this Indenture for so long as they continue
to constitute Unrestricted Subsidiaries, shall be Guarantors
in accordance with the terms of this Indenture. If the
Company or any of its Restricted Subsidiaries shall acquire
or create another Subsidiary after the date hereof or
designate an Unrestricted Subsidiary to be a Subsidiary,
then such newly acquired, created or designated Subsidiary,
if substantially all of such Subsidiary's assets are located
in the United States or such Subsidiary conducts
substantially all of its business in the United States,
shall execute a Supplemental Indenture in substantially the
form as Exhibit C hereof and deliver an Opinion of Counsel,
in accordance with the terms of Section 12.05 hereof,
provided, that this Section 4.17 shall not apply to (i) any
Subsidiary that has been properly designated as an
Unrestricted Subsidiary in accordance with this Indenture
for so long as it continues to constitute an Unrestricted
Subsidiary and (ii) any Subsidiary of the Company
substantially all of such Subsidiary's assets are not
located in the United States and that does not conduct
substantially all of its business in the United States.
Each Subsidiary Guarantee shall be limited in amount to an
amount not to exceed the maximum amount that can be
Guaranteed by that Subsidiary without rendering the
Subsidiary Guarantee, as it relates to such Subsidiary,
voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting
the rights of creditors generally.
ARTICLE 5
SUCCESSORS
Section 5.01. Merger, Consolidation, or Sale of all or
Substantially all Assets
The Company shall not consolidate or merge with or
into (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions, to
another Person unless (i) the Company is the surviving
corporation or the Person formed by or surviving any such
consolidation or merger (if other than the Company) or to
which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation
organized or existing under the laws of the United States,
any state thereof or the District of Columbia; (ii) the
Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which
such sale, assignment, transfer, lease, conveyance or other
disposition shall have been made assumes all the obligations
of the Company under the Notes and this Indenture pursuant
to a supplemental indenture in a form reasonably
satisfactory to the Trustee; (iii) immediately after such
transaction no Default or Event of Default exists; and
(iv) except in the case of a merger of the Company with or
into a Wholly Owned Restricted Subsidiary of the Company,
the Company or the Person formed by or surviving any such
consolidation or merger (if other than the Company), or to
which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made will, at the time of
such transaction and after giving pro forma effect thereto
as if such transaction had occurred at the beginning of the
applicable four-quarter period, either (x) be permitted to
incur at least $1.00 of additional Indebtedness pursuant to
the Fixed Charge Coverage Ratio test set forth in the first
paragraph of Section 4.09 hereof or (y) have a Fixed Charge
Coverage Ratio at least equal to the Fixed Charge Coverage
Ratio of the Company for such four-quarter reference period.
The foregoing provisions shall not apply to the Merger or
the Subsidiary Distribution. Notwithstanding the foregoing
clauses (iii) and (iv), (a) any Restricted Subsidiary may
consolidate with, merge into or transfer all or part of its
properties and assets to the Company, and (b) the Company
may merge with an Affiliate incorporated solely for the
purpose of reincorporating the Company in another
jurisdiction.
Section 5.02. Successor Corporation Substituted
Upon any consolidation or merger, or any sale,
assignment, transfer, lease, conveyance or other disposition
of all or substantially all of the assets of the Company in
accordance with Section 5.01 hereof, the successor
corporation formed by such consolidation or into or with
which the Company is merged or to which such sale,
assignment, transfer, lease, conveyance or other disposition
is made shall succeed to, and be substituted for (so that
from and after the date of such consolidation, merger, sale,
lease, conveyance or other disposition, the provisions of
this Indenture referring to the "Company" shall refer
instead to the successor corporation and not to the
Company), and may exercise every right and power of the
Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein;
provided, however, that the predecessor Company shall not be
relieved from the obligation to pay the principal of and
interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section
5.01 hereof.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default
Each of the following constitutes an Event of
Default:
(a) default for 30 days in the payment when due of
interest on, or Liquidated Damages with respect to, the
Notes (whether or not prohibited by Article 10 hereof);
(b) default in payment when due of the principal
of or premium, if any, on the Notes (whether or not
prohibited by Article 10 hereof);
(c) failure by the Company for 30 days after
notice to comply with the provisions described under
Sections 4.07, 4.09, 4.10, 4.15 or 5.01;
(d) failure by the Company for 60 days after
notice to comply with any of its other agreements in this
Indenture or the Notes;
(e) the failure by the Company or any Restricted
Subsidiary that is a Significant Subsidiary to pay any
Indebtedness within any applicable grace period after final
maturity or acceleration by the holders thereof because of a
default if the total amount of such Indebtedness unpaid or
accelerated exceeds $20.0 million;
(f) failure by the Company or any of its
Restricted Subsidiaries that is a Significant Subsidiary to
pay final non-appealable judgments aggregating in excess of
$20.0 million, which judgments are not paid, discharged or
stayed for a period of 60 days;
(g) except as permitted by this Indenture, any
Subsidiary Guarantee by a Guarantor that is a Significant
Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall cease for any reason to be
in full force and effect or any Guarantor, or any Person
acting on behalf of any Guarantor, shall deny or disaffirm
its obligations under its Subsidiary Guarantee;
(h) if, the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary, pursuant to
or within the meaning of Bankruptcy Code:
(i) commences a voluntary
case,
(ii) consents to the entry of an order
for relief against it in an involuntary case,
(iii) consents to the appointment of
a Custodian of it or for all or substantially all
of its property,
(iv) makes a general assignment for the
benefit of its creditors, or
(v) generally is not paying its debts as
they become due; or
(i) if a court of competent jurisdiction enters an
order or decree under any Bankruptcy Code that:
(i) is for relief against the Company
or any of its Restricted Subsidiaries that is a
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company
or any of its Restricted Subsidiaries that is a
Significant Subsidiary or for all or substantially
all of the property of the Company or any of its
Restricted Subsidiaries that is a Significant
Subsidiary; or
(iii) orders the liquidation of the
Company or any of its Restricted Subsidiaries that
is a Significant Subsidiary;
and the order or decree remains unstayed and
in effect for 60 consecutive days.
Section 6.02. Acceleration
(a) If any Event of Default occurs and is
continuing, the Note Trustee or the Holders of at least 25%
in principal amount of the then outstanding Notes may
declare all the Notes to be due and payable immediately.
Notwithstanding the foregoing, in the case of an Event of
Default arising from Section 6.01(h) or (i), all outstanding
Notes will become due and payable without further action or
notice. The Trustee may withhold from Holders of the Notes
notice of any continuing Default or Event of Default (except
a Default or Event of Default relating to the payment of
principal or interest) if it determines that withholding
notice is in their interest.
(b) The Holders of a majority in aggregate principal
amount of the then outstanding Notes by notice to the
Trustee may rescind any declaration of acceleration of such
Notes and its consequences if the recision would not
conflict with any judgment or decree and if all existing
Defaults and Events of Default (other than the nonpayment of
principal of, or premium, if any, or interest on, the Notes
which shall have become due by such declaration) shall have
been cured or waived.
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, premium, if any, and interest on the
Notes or to enforce the performance of any provision of the
Notes or this Indenture.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them
in the proceeding. A delay or omission by the Trustee or
any Holder of a Note in exercising any right or remedy
accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the
Event of Default. All remedies are cumulative to the extent
permitted by law.
Section 6.04. Waiver of Past Defaults
The Holders of a majority in aggregate principal
amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes
waive any existing Default or Event of Default and its
consequences under this Indenture except a continuing
Default or Event of Default in the payment of interest on,
or the principal of, the Notes. Upon any such waiver, such
Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; provided that no such
waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon.
Section 6.05. Control by Majority
Holders of a majority in principal amount of the then
outstanding Notes may direct the time, method and place of
conducting any proceeding for exercising any remedy avail
able to the Trustee or exercising any trust or power con
ferred on it by this Indenture. However, the Trustee may
refuse to follow any direction that conflicts with law or
this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes, it
being understood that (subject to Section 7.01) the Trustee
shall have no duty to conduct an independent investigation
to ascertain whether or not such actions or forebearances
are unduly prejudicial to such Holders, or that may involve
the Trustee in personal liability.
Section 6.06. Limitation on Suits
A Holder of a Note may pursue a remedy with respect to
this Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee
written notice of a continuing Event of Default;
(b) the Holders of at least 25% in principal amount
of the then outstanding Notes make a written request to
the Trustee to pursue the remedy;
(c) such Holder or Holders offer and, if requested,
provide to the Trustee indemnity satisfactory to the
Trustee against any loss, liability or expense;
(d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer
and, if requested, the provision of indemnity; and
(e) during such 60-day period the Holders of a
majority in principal amount of the then outstanding
Notes do not give the Trustee a direction inconsistent
with the request.
A Holder of a Note may not use this Indenture to prejudice
the rights of another Holder of a Note or to obtain a
preference or priority over another Holder of a Note.
Holders of the Notes may not enforce this Indenture or the
Notes, except as provided herein.
Section 6.07. Rights of Holders of Notes to Receive
Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Note to receive payment of
principal, premium and Liquidated Damages, if any, and
interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer
to purchase), 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 specified in Section 6.01(a) or
(b) occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an
express trust against the Company for the whole amount of
principal of, premium and Liquidated Damages, if any, and
interest remaining unpaid on the Notes and interest on
overdue principal and, to the extent lawful, interest and
such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim
and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel) and the Holders of the Notes allowed in
any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property
and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or
deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to
make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any
such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.07 hereof out of the estate
in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a Lien on, and shall
be paid out of, any and all distributions, dividends, money,
securities and other properties that the Holders may be
entitled to receive in such proceeding whether in
liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to
authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
Section 6.10. Priorities.
If the Trustee collects any money pursuant to this
Article 6, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for
amounts due under Section 7.07 hereof, including payment of
all compensation, expense and liabilities incurred, and all
advances made, by the Trustee and the costs and expenses of
collection;
Second: to Holders of Notes for amounts due and
unpaid on the Notes for principal, premium and Liquidated
Damages, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated
Damages, if any and interest, respectively; and
Third: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for
any payment to Holders of Notes pursuant to this Section
6.10.
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 a Trustee, a court in
its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and
good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder of a Note pursuant to Section
6.06 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same
degree of care and skill in its exercise, as a prudent man
would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of an Event of
Default:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture and
the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others,
and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(ii) 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.
(c) The Trustee may not be relieved from liabilities
for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer,
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05 hereof.
(d) Whether or not therein expressly so provided,
every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), and (c) of
this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any
liability. The Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture
at the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory
to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree in
writing with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to
the extent required by law.
Section 7.02. Rights of Trustee.
(a) The Trustee may conclusively rely upon any
document believed by it to be genuine and to have been
signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and
complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and
agents and shall not be responsible for the misconduct or
negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action
it takes or omits to take in good faith that it believes to
be authorized or within the rights or powers conferred upon
it by this Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company or any Guarantor shall be sufficient if signed by an
Officer of the Company or such Guarantor.
(f) The Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders
unless such Holders shall have offered to the Trustee
security or indemnity reasonable to it against the costs,
expenses and liabilities that might be incurred by it in
compliance with such request or direction.
(g) The Trustee shall not be required to give any
bond or surety in respect of the performance of its powers
and duties hereunder.
(h) 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 and shall be entitled in
connection herewith to examine the books, records and
premises of the Company, during reasonable business hours
and subject to executing a confidentiality undertaking in
customary form and with respect to confidential information
and/or proprietary information of the Company.
(i) The permissive rights of the Trustee to do
things enumerated in this Indenture shall not be construed
as a duty.
(j) Except for (i) a default under Sections 6.01(a)
or (b) hereof, or (ii) any other event of which the Trustee
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 any Holder of the Securities then outstanding; as
used herein, the term "actual knowledge" means the actual
fact or statement 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 Notes and may otherwise
deal with the Company, the Guarantors or any Affiliate of
the Company or the Guarantors with the same rights it would
have if it were not Trustee. However, in the event that the
Trustee acquires any conflicting interest it must eliminate
such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may
do the same with like rights and duties. The Trustee is
also subject to Sections 7.10 and 7.11 hereof.
Section 7.04. 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 Notes, it shall not be accountable for the
Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under
any provision of this Indenture, it shall not be responsible
for the use or application of any money received by any
Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any
statement in the Notes or any other document in connection
with the sale of the Notes or pursuant to this Indenture
other than its certificate of authentication.
Section 7.05. Notice of Defaults.
If a Default or Event of Default occurs and is
continuing and if the Trustee has actual knowledge of such
Default or Event of Default, the Trustee shall mail to
Holders of Notes a notice of the Default or Event of Default
within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of,
premium, if any, or interest on any Note, the Trustee may
withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of
the Notes.
Section 7.06. Reports by Trustee to Holders of the Notes.
Within 60 days after each May 15 beginning with the
May 15 following the date hereof, and for so long as Notes
remain outstanding, the Trustee shall mail to the Holders of
the Notes a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event
described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need
be transmitted). The Trustee also shall comply with TIA
Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to
the Holders of Notes shall be mailed to the Company and
filed with the SEC and each stock exchange on which the
Notes are listed in accordance with TIA Section 313(d). The
Company shall promptly notify the Trustee when the Notes are
listed on any stock exchange.
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 acceptance of this Indenture and
services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable disbursements,
advances and expenses incurred or made by it in addition to
the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any
and all losses, liabilities or expenses incurred by it
arising out of or in connection with the acceptance or
administration of its duties under this Indenture, including
the costs and expenses of enforcing this Indenture against
the Company (including this Section 7.07) and investigating
or defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its
powers or duties hereunder, except to the extent any such
loss, liability or expense may be attributable to its
negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim for which it may seek
indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder.
The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and
expenses of such counsel. The Company need not pay for any
settlement made without its consent, which consent shall not
be unreasonably withheld.
The obligations of the Company under this Section 7.07
shall survive the satisfaction and discharge of this
Indenture.
To secure the Company's payment obligations in this
Section, the Trustee shall have a Lien prior to the Notes on
all money or property held or collected by the Trustee,
except that held in trust to pay principal and interest on
particular Notes. Such Lien shall survive the satisfaction
and discharge of this Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(g) or
(h) hereof occurs, the expenses and the compensation for the
services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administra
tion under any Bankruptcy Code.
The Trustee shall comply with the provisions of TIA
Section 313(b)(2) to the extent applicable.
Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appoint
ment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the
Company. The Holders of Notes of a majority in principal
amount of the then outstanding Notes may remove the Trustee
by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10
hereof;
(b) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect
to the Trustee under any Bankruptcy Code;
(c) a Custodian or public officer takes charge of
the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee. Within one year
after the successor Trustee takes office, the Holders of a
majority in principal amount of the then outstanding Notes
may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company, or the Holders of Notes of at
least 10% in principal amount of the then outstanding Notes
may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee, after written request by any Holder of
a Note who has been a Holder of a Note for at least six
months, fails to comply with Section 7.10, such Holder of a
Note may petition any court of competent jurisdiction for
the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the
Company. Thereupon, the resignation or removal of the
retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders of the Notes.
The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, provided all
sums owing to the Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring
Trustee.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that
is a corporation organized and doing business under the laws
of the United States of America or of any state thereof that
is authorized under such laws to exercise corporate trustee
power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital
and surplus of at least $100 million as set forth in its
most recent published annual report of condition.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and
(5). The Trustee is subject to TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against
Company.
The Trustee is subject to TIA Section 311(a),
excluding any creditor relationship listed in TIA
Section 311(b). A Trustee who has resigned or been removed
shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01. Option to Effect Legal Defeasance or Covenant
Defeasance.
The Company may, at the option of its Board of
Directors evidenced by a resolution set forth in an
Officers' Certificate, at any time, elect to have either
Section 8.02 or 8.03 hereof be applied to all outstanding
Notes upon compliance with the conditions set forth below in
this Article 8.
Section 8.02. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.02, the Company
shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all
outstanding Notes on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this
purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes, which shall thereafter
be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all
its other obligations under such Notes and this Indenture
(and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the
same), except for the following provisions which shall
survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof,
and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest
on such Notes when such payments are due, (b) the Company's
obligations with respect to such Notes under Sections 2.03,
2.04, 2.05, 2.06, 2.07, 2.10 and 4.02 hereof, (c) the
rights, powers, trusts, duties and immunities of the Trustee
hereunder and the Company's obligations in connection
therewith and (d) this Article 8. Subject to compliance
with this Article 8, the Company may exercise its option
under this Section 8.02 notwithstanding the prior exercise
of its option under Section 8.03 hereof.
Section 8.03. Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof
of the option applicable to this Section 8.03, the Company
shall, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, be released from its
obligations under Sections 4.07, 4.08, 4.09, 4.10, 4.11,
4.12, 4.13, 4.15, 4.16 and 4.17 hereof with respect to the
outstanding Notes on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant
Defeasance"), and the Notes shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver,
consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such
Sections, but shall continue to be deemed "outstanding" for
all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means
that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such
Section, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or by reason
of any reference in any such Section to any other provision
herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the
remainder of this Indenture and such Notes shall be
unaffected thereby. In addition, upon the Company's
exercise under Section 8.01 hereof of the option applicable
to this Section 8.03 hereof, subject to the satisfaction of
the conditions set forth in Section 8.04 hereof, Sections
6.01(d) through 6.01(f) hereof shall not constitute Events
of Default.
Section 8.04. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application
of either Section 8.02 or 8.03 hereof to the outstanding
Notes:
In order to exercise either Legal Defeasance or
Covenant Defeasance:
(a) the Company must irrevocably deposit with
the Trustee, in trust, for the benefit of the Holders,
cash in United States dollars, non-callable Government
Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants, to
pay the principal of, premium and Liquidated Damages,
if any, and interest on the outstanding Notes on the
stated date for payment thereof or on the applicable
redemption date, as the case may be;
(b) in the case of an election under Section
8.02 hereof, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that
(A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or
(B) since the date hereof, there has been a change in
the applicable federal income tax law, in either case
to the effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or
loss for federal income tax purposes as a result of
such Legal Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and
at the same times as would have been the case if such
Legal Defeasance had not occurred;
(c) in the case of an election under Section
8.03 hereof, the Company shall have delivered to the
Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that
the Holders of the outstanding Notes will not
recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and
will be subject to federal income tax on the same
amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance
had not occurred;
(d) no Default or Event of Default shall have
occurred and be continuing on the date of such deposit
(other than a Default or Event of Default resulting
from the incurrence of Indebtedness all or a portion
of the proceeds of which will be used to defease the
Notes pursuant to this Article 8 concurrently with
such incurrence) or insofar as Sections 6.01(h) or
6.01(i) hereof is concerned, at any time in the period
ending on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant
Defeasance shall not result in a breach or violation
of, or constitute a default under, any material
agreement or instrument (other than this Indenture) to
which the Company or any of its Subsidiaries is a
party or by which the Company or any of its
Subsidiaries is bound;
(f) the Company or the Guarantors shall have
delivered to the Trustee an Opinion of Counsel,
subject customary assumptions and exclusions, to the
effect that after the 91st day following the deposit,
the trust funds will not be part of any "estate"
formed by the bankruptcy or reorganization of the
Company or subject to the "automatic stay" under the
Bankruptcy Code;
(g) the Company shall have delivered to the
Trustee an Officers' Certificate stating that the
deposit was not made by the Company with the intent of
preferring the Holders over any other creditors of the
Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the
Company; and
(h) the Company shall have delivered to the
Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent
provided for or relating to the Legal Defeasance or
the Covenant Defeasance have been complied with.
Section 8.05. Deposited Money and Government Securities to
be Held in Trust; Other Miscellaneous
Provisions.
Subject to Section 8.06 hereof, all money and non-
callable Government Securities (including the proceeds
thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Notes and
this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such
Notes of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money
need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the cash or non-callable Government Securities
deposited pursuant to Section 8.04 hereof or the principal
and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.
Anything in this Article 8 the contrary
notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it
as provided in Section 8.04 hereof which, in the opinion of
a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered
under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant
Defeasance.
Section 8.06. Repayment to Company.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment
of the principal of, premium and Liquidated Damages, if any,
or interest on any Note and remaining unclaimed for two
years after such principal, premium and Liquidated Damages,
if any, or interest has become due and payable shall be paid
to the Company on its request or (if then held by the
Company) shall be discharged from such trust; and the Holder
of such Note shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of
the Company cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice
that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from
the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the
Company.
Section 8.07. Reinstatement.
If the Trustee or Paying Agent is unable to apply any
United States dollars or non-callable Government Securities
in accordance with Section 8.02 or 8.03 hereof, as the case
may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations
under this Indenture and the Notes shall be revived and
reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee
or Paying Agent is permitted to apply all such money in
accordance with Section 8.02 or 8.03 hereof, as the case may
be; provided, however, that, if the Company or any Guarantor
makes any payment of principal of, premium and Liquidated
Damages, if any, or interest on any Note following the
reinstatement of its obligations, the Company and such
Guarantor shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money held by
the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01. Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Indenture, the
Company and the Trustee may amend or supplement this
Indenture or the Notes without the consent of any Holder of
a Note:
(i) to cure any ambiguity, defect or inconsistency;
(ii) to provide for uncertificated Notes in addition to
or in place of certificated Notes;
(iii) to provide for the assumption of the Company's or
any Guarantor's obligations to Holders of Notes in the case
of a merger, consolidation or sale of assets;
(iv) to release any Subsidiary Guarantee in accordance
with the provisions of this Indenture (including in
connection with a Subsidiary Distribution);
(v) to provide for additional Guarantors;
(vi) to make any change that would provide any additional
rights or benefits to the Holders of Notes or that does not
adversely affect the legal rights under this Indenture of
any such Holder; or
(vii) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under
the TIA.
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the
execution of any such amended or supplemental Indenture, and
upon receipt by the Trustee of the documents described in
Section 7.02 hereof, the Trustee shall join with the Company
in the execution of any amended or supplemental Indenture
authorized or permitted by the terms of this Indenture and
to make any further appropriate agreements and stipulations
that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental
Indenture that affects its own rights, duties or immunities
under this Indenture or otherwise.
Section 9.02. With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the
Company and the Trustee may amend or supplement this
Indenture and the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in
principal amount of the Notes then outstanding (including
consents obtained in connection with a tender offer or
exchange offer for the Notes), and, subject to Sections 6.04
and 6.07 hereof, any existing Default or Event of Default
(other than a Default or Event of Default in the payment of
the principal of, premium, if any, or interest on the Notes,
except a payment default resulting from an acceleration that
has been rescinded) or compliance with any provision of this
Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then
outstanding Notes (including consents obtained in connection
with a tender offer or exchange offer for the Notes).
Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the
execution of any such amended or supplemental Indenture, and
upon the filing with the Trustee of evidence satisfactory to
the Trustee of the consent of the Holders of Notes as
aforesaid, and upon receipt by the Trustee of the documents
described in Section 7.02 hereof, the Trustee shall join
with the Company in the execution of such amended or
supplemental Indenture unless such amended or supplemental
Indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental
Indenture.
It shall not be necessary for the consent of the
Holders of Notes under this Section 9.02 to approve the
particular form of any proposed amendment or waiver, but it
shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the
Holders of Notes affected thereby a notice briefly
describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity
of any such amended or supplemental Indenture or waiver.
Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then
outstanding may waive compliance in a particular instance by
the Company with any provision of this Indenture or the
Notes. However, without the consent of each Holder
affected, an amendment or waiver may not (with respect to
any Notes held by a non-consenting Holder):
(i) reduce the principal amount of Notes whose Holders
must consent to an amendment, supplement or waiver;
(ii) reduce the principal of or change the fixed
maturity of any Note or alter the provisions with respect to
the redemption or repurchase of the Notes (other than
provisions relating to Section 4.10 and 4.15 hereof);
(iii) reduce the rate of or change the time for
payment of interest on any Note, or reduce the rate of
accretion on the Accreted Value or extend the period during
which no interest accrues on the Notes;
(iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on
the Notes (except a rescission of acceleration of the Notes
by the Holders of at least a majority in aggregate principal
amount of the Notes and a waiver of the payment default that
resulted from such acceleration);
(v) make any Note payable in money other than that
stated in the Notes;
(vi) reduce the principal amount of such series of
Notes that need to consent to any waiver of past Defaults or
the rights of Holders of Notes to receive payments of
principal of or premium, if any, or interest on the Notes;
(vii) waive a redemption payment with respect to any
Note (other than a payment required by Section 4.10 or 4.15
hereof); or
(viii) make any change in the foregoing amendment and
waiver provisions.
Section 9.03. Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Notes shall be set forth in a amended or supplemental
Indenture that complies with the TIA as then in effect.
Section 9.04. Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder of a Note is a
continuing consent by the Holder of a Note and every
subsequent Holder of a Note or portion of a Note that
evidences the same debt as the consenting Holder's Note,
even if notation of the consent is not made on any Note.
However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee
receives written notice of revocation before the date the
waiver, supplement or amendment becomes effective. An
amendment, supplement or waiver becomes effective in
accordance with its terms and thereafter binds every Holder.
Section 9.05. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Note thereafter
authenticated. The Company in exchange for all Notes may
issue and the Trustee shall authenticate new Notes that
reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a
new Note shall not affect the validity and effect of such
amendment, supplement or waiver.
Section 9.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental
Indenture authorized pursuant to this Article 9 if the
amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental
Indenture until the Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee
shall be entitled to receive and (subject to Section 7.01)
shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the
execution of such amended or supplemental indenture is
authorized or permitted by this Indenture.
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement to Subordinate.
The Company agrees, and each Holder of a Note (a
"Noteholder") by accepting a Note agrees, that the
Indebtedness evidenced by the Note is subordinated in right
of payment, to the extent and in the manner provided in this
Article, to the prior payment in full of all Senior Debt
(whether outstanding on the date hereof or hereafter
created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior
Debt.
Section 10.02. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution to creditors of the
Company in a liquidation or dissolution of the Company or in
a bankruptcy, reorganization, insolvency, receivership or
similar proceeding relating to the Company or its property,
an assignment for the benefit of creditors or any
marshalling of the Company's assets and liabilities, the
holders of Senior Debt will be entitled to receive payment
in full, in cash or Cash Equivalents, of all Obligations due
in respect of such Senior Debt (including interest after the
commencement of any such proceeding at the rate specified in
the applicable Senior Debt, whether or not allowed or
allowable in such proceeding) before the Holders of Notes
will be entitled to receive any payment with respect to the
Notes, and until all Obligations with respect to Senior Debt
are paid in full, in cash or Cash Equivalents, any payment
or distribution to which the Holders of Notes would be
entitled shall be made to the holders of Senior Debt (except
that Holders of Notes may receive and retain (i) Permitted
Junior Securities and (ii) payments made from the trust
described in Article 8. The term "payment" means, with
respect to the Notes any payment, whether in cash or other
assets or property, of interest, principal (including
redemption price and purchase price), premium, Liquidated
Damages or any other amount on, of or in respect of the
Notes, any other acquisition of Notes and any deposit into
the trust described in Article 8 above. The verb "pay" has
a correlative meaning.
Section 10.03. Default on Designated Senior Debt.
The Company also may not make any payment or
distribution upon or in respect of the Notes (except in
Permitted Junior Securities or from the trust described in
Article 8 above), if (i) a default in the payment of any
Obligations with respect to Designated Senior Debt occurs
and is continuing (a "payment default") or any other default
on Designated Senior Debt occurs and the maturity of such
Designated Senior Debt is accelerated in accordance with its
terms or (ii) a default, other than a payment default,
occurs and is continuing with respect to Designated Senior
Debt that permits holders of the Designated Senior Debt as
to which such default relates to accelerate its maturity (a
"non-payment default") and, in the case of this clause (ii)
only, the Trustee receives a notice of such default (a
"Payment Blockage Notice") from the Company or the holders
of any Designated Senior Debt. Payments on the Notes may
and shall be resumed (a) in the case of a payment default,
upon the date on which such default is cured or waived and,
in the case of Designated Senior Debt that has been
accelerated, such acceleration has been rescinded, and (b)
in case of a non-payment default, the earlier of the date on
which such non-payment default is cured or waived or 179
days after the date on which the applicable Payment Blockage
Notice is received, unless the maturity of any Designated
Senior Debt has been accelerated. No new period of payment
blockage may be commenced on account of any non-payment
default unless and until 360 days have elapsed since the
initial effectiveness of the immediately prior Payment
Blockage Notice. No non-payment default that existed or was
continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall
have been cured or waived for a period of not less than 90
days.
Section 10.04. Acceleration of Notes.
If payment of the Notes is accelerated because of an
Event of Default, the Company shall promptly notify holders
of Senior Debt of the acceleration.
Section 10.05. When Distribution Must Be Paid Over.
In the event that the Trustee or any Noteholder
receives any payment of any Obligations with respect to the
Notes at a time when the Trustee or such Noteholder, as
applicable, has actual knowledge that such payment is
prohibited by Section 10.03 hereof, such payment shall be
held by the Trustee or such Noteholder, in trust for the
benefit of, and shall be paid forthwith over and delivered,
by the Trustee (if the Notice required by Section 10.06 has
been received by the Trustee) or the Holder, upon written
request, to, the holders of Senior Debt as their interests
may appear or their Representative under the indenture or
other agreement (if any) pursuant to which Senior Debt may
have been issued, as their respective interests may appear,
for application to the payment of all Obligations with
respect to Senior Debt remaining unpaid to the extent
necessary to pay such Obligations in full in accordance with
their terms, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Debt.
With respect to the holders of Senior Debt, the
Trustee undertakes to perform only such obligations on the
part of the Trustee as are specifically set forth in this
Article 10, and no implied covenants or obligations with
respect to the holders of Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior
Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of
Holders of the Notes or the Company or any other Person
money or assets to which any holders of Senior Debt shall be
entitled by virtue of this Article 10, except if such
payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
Section 10.06. Notice by Company.
The Company shall promptly notify the Trustee and the
Paying Agent of any facts known to the Company that would
cause a payment of any Obligations with respect to the Notes
to violate this Article, but failure to give such notice
shall not affect the subordination of the Notes to the
Senior Debt as provided in this Article.
The Company shall promptly notify holders of Senior
Debt if payment of the Notes is accelerated because of an
Event of Default. The Company may not pay any such
accelerated Notes until five Business Days after such
holders receive notice of such acceleration and, thereafter,
may make such payment only if otherwise permissible under
this Article 10.
Section 10.07. Subrogation.
After all Senior Debt is paid in full and until the
Notes are paid in full, Noteholders shall be subrogated
(equally and ratably with all other Indebtedness pari passu
with the Notes) to the rights of holders of Senior Debt to
receive distributions applicable to Senior Debt to the
extent that distributions otherwise payable to the
Noteholders have been applied to the payment of Senior
Debt. A distribution made under this Article to holders of
Senior Debt that otherwise would have been made to
Noteholders is not, as between the Company and Noteholders,
a payment by the Company on the Notes.
Section 10.08. Relative Rights.
This Article defines the relative rights of
Noteholders and holders of Senior Debt. Nothing in this
Indenture shall:
(1) impair, as between the Company and Noteholders,
the obligation of the Company, which is absolute and
unconditional, to pay principal of and interest on the
Notes in accordance with their terms;
(2) affect the relative rights of Noteholders and
creditors of the Company other than their rights in
relation to holders of Senior Debt; or
(3) prevent the Trustee or any Noteholder from
exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders and owners
of Senior Debt to receive distributions and payments
otherwise payable to Noteholders.
If the Company fails because of this Article to pay
principal of or interest on a Note on the due date, the
failure is still a Default or Event of Default.
Section 10.09. Subordination May Not Be Impaired by
Company.
No right of any holder of Senior Debt to enforce the
subordination of the Indebtedness evidenced by the Notes
shall be impaired by any act or failure to act by the
Company or any Holder or by the failure of the Company or
any Holder to comply with this Indenture.
Section 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice
given to holders of Senior Debt, the distribution may be
made and the notice given to their Representative.
Upon any payment or distribution of assets of the
Company referred to in this Article 10, the Trustee and the
Noteholders shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction or upon
any certificate of such Representative or of the liquidating
trustee or agent or other Person making any distribution to
the Trustee or to the Noteholders for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other
Indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10.
Section 10.11. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 10 or
any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee
shall have received at its Corporate Trust Office at least
five Business Days prior to the date of such payment written
notice of facts that would cause the payment of any
Obligations with respect to the Notes to violate this
Article. Only the Company or a Representative may give the
notice. Nothing in this Article 10 shall impair the claims
of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof.
The Trustee in its individual or any other capacity
may hold Senior Debt with the same rights it would have if
it were not Trustee. Any Agent may do the same with like
rights.
Section 10.12. Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance
thereof authorizes and directs the Trustee on the Holder's
behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article 10, and appoints the Trustee to act as the
Holder's attorney-in-fact for any and all such purposes. If
the Trustee does not file a proper proof of claim or proof
of debt in the form required in any proceeding referred to
in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the
Representatives are hereby authorized to file an appropriate
claim for and on behalf of the Holders of the Notes.
Section 10.13. Amendments.
The provisions of this Article 10 shall not be amended
or modified except as set forth in Section 9.02 hereof.
ARTICLE 11
SUBSIDIARY GUARANTEES
Section 11.01. Subsidiary Guarantees.
Each Guarantor hereby, jointly and severally,
unconditionally guarantees to each Holder of a Note
authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Notes or
the Obligations of the Company hereunder and thereunder,
that: (a) the principal of, premium, if any, interest and
Liquidated Damages, if any, on Notes will be promptly paid
in full when due, subject to any applicable grace period,
whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal, premium,
if any, interest on any interest, if any (to the extent
permitted by law), and Liquidated Damages, if any, on the
Notes, and all other payment Obligations of the Company to
the Holders or the Trustee hereunder or thereunder will be
promptly paid in full and performed, all in accordance with
the terms hereof and thereof; and (b) in case of any
extension of time of payment or renewal of any Notes or any
of such other Obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of
the extension or renewal, subject to any applicable grace
period, whether at stated maturity, by acceleration,
redemption or otherwise. Failing payment when so due of any
amount so guaranteed or any performance so guaranteed for
whatever reason the Guarantors shall, jointly and severally
with all other Guarantors, be obligated to pay the same
immediately. An Event of Default under this Indenture or
the Notes shall constitute an event of default under the
Subsidiary Guarantees, and shall entitle the Holders to
accelerate the Obligations of the Guarantors hereunder in
the same manner and to the same extent as the Obligations of
the Company. The Guarantors hereby agree that its
Obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes
or this Indenture, the absence of any action to enforce the
same, any waiver or consent by any Holder with respect to
any provisions hereof or thereof, the recovery of any
judgment against the Company, any action to enforce the same
or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor.
Each Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to
require a proceeding first against the Company, protest,
notice and all demands whatsoever and covenants that this
Subsidiary Guarantee will not be discharged except by
complete performance of the Obligations contained in the
Notes and this Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to the Company,
the Guarantors, or any Note Custodian, Trustee, liquidator
or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the
Trustee or such Holder, this Subsidiary Guarantee, to the
extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor agrees that it shall not
be entitled to, and hereby waives, any right of subrogation
in relation to the Holders in respect of any Obligations
guaranteed hereby until payment in full of the Obligations
hereunder. Each Guarantor further agrees that, as between
the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided
in Article 6 hereof for the purposes of the this Subsidiary
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such Obligations as provided
in Article 6 hereof, such Obligations (whether or not due
and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Subsidiary Guarantee.
The Guarantors shall have the right to seek contribution
from any non-paying Guarantor so long as the exercise of
such right does not impair the rights of the Holders under
the Subsidiary Guarantees.
Section 11.02. Execution and Delivery of Subsidiary
Guarantee.
To evidence its Subsidiary Guarantee set forth in
Section 11.01 hereof, each Guarantor hereby agrees that a
notation of such Subsidiary Guarantee substantially in the
form of Exhibit D shall be endorsed by an Officer of such
Guarantor on each Note authenticated and delivered by the
Trustee and that this Indenture shall be executed on behalf
of such Guarantor, by manual or facsimile signature, by an
Officer of such Guarantor.
Each Guarantor hereby agrees that its Subsidiary
Guarantee set forth in Section 11.01 hereof shall remain in
full force and effect notwithstanding any failure to endorse
on each Note a notation of such Subsidiary Guarantee.
If an Officer whose signature is on this Indenture or
on the Subsidiary Guarantee no longer holds that office at
the time the Trustee authenticates the Note on which a
Subsidiary Guarantee is endorsed, the Subsidiary Guarantee
shall be valid nevertheless.
The delivery of any Note by the Trustee, after the
authentication thereof hereunder, shall constitute due
delivery of the Subsidiary Guarantee (in existence on or
after the date hereof) set forth in this Indenture on behalf
of the Guarantors.
Section 11.03. Guarantors May Consolidate, Etc., on Certain
Terms.
No Guarantor may consolidate with or merge with or
into (whether or not such Guarantor is the surviving Person)
another Person (other than the Company or another Guarantor)
unless (i) subject to the provisions of the following
paragraph, the Person formed by or surviving any such
consolidation or merger (if other than such Guarantor)
assumes all the obligations of such Guarantor pursuant to a
supplemental indenture in form and substance reasonably
satisfactory to the Trustees, under the Notes and this
Indenture; (ii) immediately after giving effect to such
transaction, no Default or Event of Default exists; and
(iii) the Company will, at the time of such transaction and
after giving pro forma effect thereto as if such transaction
had occurred at the beginning of the applicable four-quarter
period, either (x) be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in the first paragraph of
Section 4.09 hereof or (y) have a Fixed Charge Coverage
Ratio at least equal to the actual Fixed Charge Coverage
Ratio for such four-quarter reference period.
Notwithstanding the foregoing clauses (ii) and (iii), (a)
any Restricted Subsidiary may consolidate with, merge into
or transfer all or part of its properties and assets to any
Guarantor and (b) any Guarantor may merge with an Affiliate
incorporated solely for the purpose of reincorporating such
Guarantor in another jurisdiction.
Section 11.04. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of
the assets of any Guarantor, by way of merger, consolidation
or otherwise, or a sale or other disposition of all of the
capital stock of any Guarantor (including by way of a
Subsidiary Distribution), then such Guarantor will be
released and relieved of any obligations under its
Subsidiary Guarantees; provided that the Net Proceeds of
such sale or other disposition are applied in accordance
with Section 4.10 hereof to the extent required to be so
applied. Any Guarantor not released from its obligations
under its Subsidiary Guarantee shall remain liable for the
full amount of principal of and interest on the Notes and
for its other obligations under this Indenture as provided
in this Article 11.
Section 11.05. "Trustee" to Include Paying Agent.
In case at any time any Paying Agent other than the
Trustee shall have been appointed by the Company and be then
acting hereunder, the term "Trustee" as used in this Article
11 shall in such case (unless the context shall otherwise
require) be construed as extending to and including such
Paying Agent within its meaning as fully and for all intents
and purposes as if such Paying Agent were named in this
Article 11 in place of the Trustee.
Section 11.06. Additional Guarantors.
Any Person that was not a Guarantor on the date hereof
may become a Guarantor by executing and delivering to the
Trustee (a) a supplemental indenture in substantially the
form of Exhibit C hereto, and (b) an Opinion of Counsel to
the effect that such supplemental indenture has been duly
authorized and executed by such Person and constitutes the
legal, valid, binding and enforceable obligation of such
Person (subject to such customary exceptions concerning
creditors' rights, fraudulent transfers, public policy,
equitable principles and other matters as may be reasonably
acceptable to the Trustee).
Section 11.07. Subordination of Subsidiary Guarantee.
The Obligations of each Guarantor under its Subsidiary
Guarantee pursuant to this Article 11 shall be subordinated
in right of payment to the prior payment, in full, of all
Obligations due in respect of Senior Debt of such Guarantor,
whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed.
Section 11.08. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution to creditors of any
Guarantor in a liquidation or dissolution of such Guarantor
or in a bankruptcy, reorganization, insolvency, receivership
or similar proceeding relating to such Guarantor or its
property, an assignment for the benefit of creditors or any
marshalling of such Guarantor's assets and liabilities, the
holders of Senior Debt of such Guarantor will be entitled to
receive payment in full, in cash or Cash Equivalents, of all
Obligations due in respect of such Senior Debt (including
interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt, whether or
not allowed or allowable in such proceeding) before the
Holders of Notes will be entitled to receive any payment
with respect to the Subsidiary Guarantees, and until all
Obligations with respect to such Senior Debt are paid in
full, in cash or Cash Equivalents, any payment or
distribution to which the Holders of Notes would be entitled
shall be made to the holders of such Senior Debt (except
that Holders of Notes may receive and retain (i) Permitted
Junior Securities and (ii) payments made from the trust
described in Article 8. The term "payment" means, with
respect to the Subsidiary Guarantees any payment, whether in
cash or other assets or property, of interest, principal
(including redemption price and purchase price), premium,
Liquidated Damages or any other amount on, of or in respect
of the Notes, any other acquisition of Notes and any deposit
into the trust described in Article 8 above. The verb "pay"
has a correlative meaning.
Section 11.09. Default on Designated Senior Debt.
No Guarantor shall make any payment or distribution
upon or in respect of the Subsidiary Guarantees (except in
Permitted Junior Securities or from the trust described in
Article 8) if (i) a payment default with respect to
Designated Senior Debt of such Guarantor occurs and is
continuing or any other default on Designated Senior Debt of
such Guarantor occurs and the maturity of such Designated
Senior Debt of such Guarantor is accelerated in accordance
with its terms or (ii) a non-payment default occurs and is
continuing with respect to Designated Senior Debt of such
Guarantor that permits holders of the Designated Senior Debt
of such Guarantor as to which such default relates to
accelerate its maturity and, in the case of this clause (ii)
only, the Trustee receives a Payment Blockage Notice from
the Company or the holders of any Designated Senior Debt of
such Guarantor. Payments in respect of such Guarantor's
Subsidiary Guarantee may and shall be resumed (a) in the
case of a payment default, upon the date on which such
default is cured or waived and, in the case of Designated
Senior Debt of such Guarantor that has been accelerated,
such acceleration has been rescinded, and (b) in case of a
non-payment default, the earlier of the date on which such
non-payment default is cured or waived or 179 days after the
date on which the applicable Payment Blockage Notice is
received, unless the maturity of any Designated Senior Debt
of such Guarantor has been accelerated. No new period of
payment blockage may be commenced on account of any non-
payment default unless and until 360 days have elapsed since
the initial effectiveness of the immediately prior Payment
Blockage Notice. No non-payment default that existed or was
continuing on the date of delivery of any Payment Blockage
Notice to the Trustee shall be, or be made, the basis for a
subsequent Payment Blockage Notice unless such default shall
have been cured or waived for a period of not less than 90
days.
Section 11.10. Acceleration of Notes.
Each Guarantor shall promptly notify holders of Senior
Debt of such Guarantor if payment of the Subsidiary
Guarantees is accelerated because of an Event of Default.
Section 11.11. When Distribution Must Be Paid Over.
In the event that the Trustee or any Holder receives
from a Guarantor any payment of any Obligations with respect
to the Subsidiary Guarantees at a time when the Trustee or
such Holder, as applicable, has actual knowledge that such
payment is prohibited by Section 11.09 hereof, such payment
shall be held by the Trustee or such Holder, in trust for
the benefit of, and shall be paid forthwith over and
delivered, by the Trustee (if the Notice required by Section
10.06 has been received by the Trustee) or the Holder, upon
written request, to, the holders of Senior Debt of such
Guarantor as their interests may appear or their
Representative under the indenture or other agreement (if
any) pursuant to which Senior Debt of such Guarantor may
have been issued, as their respective interests may appear,
for application to the payment of all Obligations with
respect to Senior Debt of such Guarantor remaining unpaid to
the extent necessary to pay such Obligations in full in
accordance with their terms, after giving effect to any
concurrent payment or distribution to or for the holders of
Senior Debt of such Guarantor.
With respect to any Guarantor with respect to the
holders of Senior Debt of such Guarantor, the Trustee
undertakes to perform only such obligations on the part of
the Trustee as are specifically set forth in this Article
11, and no implied covenants or obligations with respect to
the holders of Senior Debt of such Guarantor shall be read
into this Indenture against the Trustee. The Trustee shall
not be deemed to owe any fiduciary duty to the holders of
Senior Debt of such Guarantor, and shall not be liable to
any such holders if the Trustee shall pay over or distribute
to or on behalf of Holders or the Company or any other
Person money or assets to which any holders of Senior Debt
of such Guarantor shall be entitled by virtue of this
Article 11, except if such payment is made as a result of
the willful misconduct or gross negligence of the Trustee.
Section 11.12. Notice By a Guarantor.
Each Guarantor shall promptly notify the Trustee and
the Paying Agent of any facts known to such Guarantor that
would cause a payment of any Obligations with respect to the
Notes or its Subsidiary Guarantee to violate this Article
11, but failure to give such notice shall not affect the
subordination of its Subsidiary Guarantee or of the Notes to
the Senior Debt of such Guarantor as provided in this
Article 11.
Section 11.13. Subrogation.
With respect to any Guarantor, after all Senior Debt
of such Guarantor is paid in full and until the Notes are
paid in full, Holders shall be subrogated (equally and
ratably with all other Indebtedness of such Guarantor pari
passu with the Notes) to the rights of holders of Senior
Debt of such Guarantor to receive distributions applicable
to Senior Debt of such Guarantor to the extent that
distributions otherwise payable to the Holders have been
applied to the payment of Senior Debt of such Guarantor. A
distribution made under this Article 11 to holders of Senior
Debt of such Guarantor that otherwise would have been made
to Holders is not, as between the such Guarantor and Holders
, a payment by the Company on the Senior Debt of such
Guarantor.
Section 11.14. Relative Rights.
This Article 11 defines the relative rights of Holders
and holders of Senior Debt of the Guarantors. Nothing in
this Indenture shall:
(1) impair, as between each Guarantor and the
Holders, the obligation of such Guarantor, which is
absolute and unconditional, to pay principal of and
interest and Liquidated Damages, if any, on the
Subsidiary Guarantees in accordance with their terms;
(2) affect the relative rights of Holders and
creditors of each Guarantor other than their rights in
relation to holders of Senior Debt of such Guarantor; or
(3) prevent the Trustee or any Holder from
exercising its available remedies upon a Default or Event
of Default, subject to the rights of holders and owners
of Senior Debt of each Guarantor to receive distributions
and payments otherwise payable to Holders.
If any Guarantor fails because of this Article 11 to
pay principal of or interest on the Subsidiary Guarantees to
a Holder on the due date, the failure is still a Default or
Event of Default.
Section 11.15. Subordination May Not Be Impaired by any
Guarantor.
With respect to any Guarantor, no right of any holder
of Senior Debt of such Guarantor to enforce the
subordination of the Subsidiary Guarantee shall be impaired
by any act or failure to act by such Guarantor or any Holder
or by the failure of such Guarantor to comply with this
Indenture.
Section 11.16. Distribution or Notice to Representative.
With respect to any Guarantor, whenever a distribution
is to be made or a notice given to holders of Senior Debt of
such Guarantor, the distribution may be made and the notice
given to their Representative.
Upon any payment or distribution of assets referred to
in this Article 11, the Trustee and the Holders shall be
entitled to rely upon any order or decree made by any court
of competent jurisdiction or upon any certificate of such
Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to
the Holders for the purpose of ascertaining the Persons
entitled to participate in such distribution, the holders of
the Senior Debt of such Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this
Article 11.
Section 11.17. Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 11 or
any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by
the Trustee, and the Trustee and the Paying Agent may
continue to make payments on the Notes, unless the Trustee
shall have received at its Corporate Trust Office at least
five Business Days prior to the date of such payment,
written notice of facts that would cause the payment of any
Obligations with respect to the Subsidiary Guarantee to
violate this Article 11. Only a Guarantor or a
Representative may give the notice. Nothing in this
Article 11 shall impair the claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof.
With respect to any Guarantor, the Trustee in its
individual or any other capacity may hold Senior Debt of
such Guarantor with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights.
Section 11.18. Authorization to Effect Subordination.
Each Holder of a Note by the Holder's acceptance
thereof authorizes and directs the Trustee on the Holder's
behalf to take such action as may be necessary or
appropriate to effectuate the subordination as provided in
this Article 11, and appoints the Trustee to act as the
Holder's attorney-in-fact for any and all such purposes. If
the Trustee does not file a proper proof of claim or proof
of debt in the form required in any proceeding relative to
any Guarantor referred to in Section 6.09 hereof at least 30
days before the expiration of the time to file such claim, a
Representative of Designated Senior Debt of each Guarantor
is hereby authorized to file an appropriate claim for and on
behalf of the Holders of the Notes.
Section 11.19. Limitation of Guarantor's Liability.
Each Guarantor and by its acceptance hereof, each
beneficiary hereof, hereby confirm that it is its intention
that the Subsidiary Guarantee by such Guarantor not
constitute a fraudulent transfer or conveyance for purposes
of the Bankruptcy Code, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar
federal or state law to the extent applicable to any
Subsidiary Guarantees. To effectuate the foregoing
intention, each such Person hereby irrevocably agrees that
the obligation of such Guarantor under its Subsidiary
Guarantee under this Article 11 shall be limited to the
maximum amount as will, after giving effect to such maximum
amount and all other (contingent or otherwise) liabilities
of such Guarantor that are relevant under such laws, and
after giving effect to any collections from or payments made
by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under this Article 11,
result in the obligations of such Guarantor in respect of
such maximum amount not constituting a fraudulent
conveyance. Each beneficiary under the Subsidiary
Guarantees, by accepting the benefits hereof, confirms its
intention that, in the event of a bankruptcy, reorganization
or other similar proceeding of the Company or any Guarantor
in which concurrent claims are made upon such Guarantor
hereunder, to the extent such claims will not be fully
satisfied, each such claimant with a valid claim against the
Company shall be entitled to a ratable share of all payments
by such Guarantor in respect of such concurrent claims.
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies
or conflicts with the duties imposed by TIA Section318(c),
the imposed duties 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 by the Company or the
Trustee to the others is duly given if in writing and
delivered in Person or mailed by first class mail (regis
tered or certified, return receipt requested), telex, tele
copier or overnight air courier guaranteeing next day
delivery, to the others' address:
If to the Company:
Falcon Building Products, Inc.
Two North Riverside Plaza, Suite 1100
Chicago, Illinois 60606
Telecopier No.: (312) 906-8402
Attention: Gus Athas
With a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166-0193
Telecopier No.: (212) 351-4035
Attention: Charles K. Marquis
If to the Trustee:
Harris Trust and Savings Bank
311 West Monroe Street
12th Floor
Chicago, IL 60606
Telecopier No.: (312) 461-3525
Attention: Indenture Trust Division
The Company or the Trustee, by notice to the others
may designate additional or different addresses for subse
quent notices or communications.
All notices and communications (other than those sent
to Holders) shall be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage
prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and the next Business
Day after timely delivery to the courier, if sent by over
night air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be
mailed by first class mail, certified or registered, return
receipt requested, or by overnight air courier guaranteeing
next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be
so mailed to any Person described in TIA Section 313(c), to
the extent required by the TIA. Failure to mail a notice or
communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent
at the same time.
Section 12.03. Communication by Holders of Notes with Other
Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b)
with other Holders with respect to their rights under this
Indenture or the Notes. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA
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 any action under this Indenture, the Company
shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for
in this Indenture relating to the proposed action have
been satisfied; and
(b) an Opinion of Counsel in form and substance
reasonably satisfactory to the Trustee (which shall
include the statements set forth in Section 12.05 hereof)
stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
Section 12.05. Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA
Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certi
ficate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such certificate or
opinion are based;
(c) a statement that, in the opinion of such Person,
he or she has made such examination or investigation as
is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion
of such Person, such condition or covenant has been
satisfied.
Section 12.06. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or Paying Agent may
make reasonable rules and set reasonable requirements for
its functions.
Section 12.07. No Personal Liability of Directors, Officers,
Employees and Stockholders.
No director, officer, employee, incorporator or
stockholder or Affiliate of the Company, as such, shall have
any liability for any obligations of the Company under the
Notes, this Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. No
director, officer, employee, incorporator or stockholder or
Affiliate of any of the Guarantors, as such, shall have any
liability for any obligations of the Guarantors under the
Subsidiary Guarantees, the Indentures or for any claim based
on, in respect of, or by reason of, such obligations or
their creation. Each Holder of Notes and Subsidiary
Guarantees by accepting a Note and a Subsidiary Guarantee
waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the
Notes and the Subsidiary Guarantees.
Section 12.08. Governing Law.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE
SUBSIDIARY GUARANTEES.
Section 12.09. No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret any other
indenture, loan or debt agreement of the Company or its
Subsidiaries or of any other Person. Any such indenture,
loan or debt agreement may not be used to interpret this
Indenture.
Section 12.10. Successors.
All agreements of the Company in this Indenture and
the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 12.11. Severability.
In case any provision in this Indenture or in the
Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired
thereby.
Section 12.12. Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
Section 12.13. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and
Headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
<PAGE>
SIGNATURES
Dated as of June 17, 1997 Falcon Building Products
By: /s/ Gus J. Athas
--------------------
Name: Gus J. Athas
Title: Executive Vice President, General
Counsel and Secretary
Dated as of June 17, 1997 Hart & Cooley, Inc.
By: /s/ Gus J. Athas
--------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 Mansfield Plumbing Products, Inc.
By: /s/ Gus J. Athas
---------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 DeVilbiss Air Power Company
By: /s/ Gus J. Athas
--------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 SWC Industries, Inc.
By: /s/ Gus J. Athas
--------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
Dated as of June 17, 1997 Ex-Cell Manufacturing Company, Inc.
By: /s/ Gus J. Athas
---------------------
Name: Gus J. Athas
Title: Vice President, General Counsel
and Secretary
<PAGE>
Dated as of June 17, 1997 Harris Trust and Savings Bank
By: /s/ Kevin O. Healey
-----------------------
Name: Kevin O. Healey
Title: Senior Vice President
By: /s/ D.G. Donovan
-----------------------
Name: D.G. Donovan
Title: Assistant Secretary
<PAGE>
Exhibit A
(Face of Note)
10 1/2% [Series A] [Series B] Senior Subordinated Discount Notes
due 2007
FOR PURPOSES OF SECTION 1272, 1273 AND 1275
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE
DISCOUNT; FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS
SECURITY, THE ISSUE PRICE IS $599.82, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT IS $400.18, THE ISSUE
DATE IS JUNE 17, 1997 AND THE YIELD TO MATURITY IS
101/2% PER ANNUM.
No. $__________
Falcon Building Products, Inc.
promises to pay to
or registered assigns,
the principal sum of
Dollars on June 15, 2007.
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: June 17, 1997
Falcon Building Products, Inc.
By: _________________________
Name:
Title:
This is one of the [Global]
Notes referred to in the
within-mentioned Indenture:
Harris Trust and Savings Bank,
as Trustee
By: __________________________
<PAGE>
(Back of Note)
10 1/2% [Series A] [Series B] Senior Subordinated Discount Notes
due 2007
[Unless and until it is exchanged in whole or in part
for Notes in definitive form, this Note may not be
transferred except as a whole by the Depository to a nominee
of the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor Depository or
a nominee of such successor Depository. Unless this
certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New
York) ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued
is registered in the name of Cede & Co. or such other name
as may be requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or such other entity
as may be 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.]/1
THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE NOTE EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE NOTE EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE NOTE EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH NOTE MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT,
(c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER
THE SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF
THE COMPANY SO REQUESTS), (2) TO THE COMPANY OR
(3) 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 (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN (1) ABOVE.
FOR PURPOSES OF SECTION 1272, 1273 AND 1275 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THIS
SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT;
FOR EACH $1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE
ISSUE PRICE IS $599.82, THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT IS $400.18, THE ISSUE DATE IS JUNE 17, 1997
AND THE YIELD TO MATURITY IS 101/2% PER ANNUM.
Capitalized terms used herein shall have the meanings
assigned to them in the Indenture referred to below unless
otherwise indicated.
1. Interest. Falcon Building Products, Inc., a
Delaware corporation (the "Company"), promises to pay
interest on the principal amount of this Note at 101/2% per
annum from June 15, 2002 until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. No
interest will accrue on the Notes until June 15, 2002 (the
"Full Accretion Date"). Until the Full Accretion Date, no
interest on the Notes will accrue, but the Accreted Value
will accrete (representing the amortization of original
issue discount) between the date of original issuance and
such date, on a semi-annual bond equivalent basis using a
360-day year comprised of twelve 30-day months such that the
Accreted Value shall be equal to the full principal amount
of the Notes on the Full Accretion Date. The initial
Accreted Value per $1,000 principal amount of Notes will be
$599.82 (representing the original purchase price).
Beginning on June 15, 2002, interest on the Notes will
accrue at the rate of 101/2% per annum and will be payable
in cash semi-annually, in arrears, on June 15 and December
15, commencing on December 15, 2002 to Holders of record on
the immediately preceding June 1 and December 15. Interest
on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid,
from the Full Accretion Date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day
months. The Company shall pay interest (including post-
petition interest in any proceeding under any Bankruptcy
Code) on overdue principal and premium, if any, from time to
time on demand at a rate that is 1% per annum in excess of
the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any
Bankruptcy Code) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace
periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment. The Company will pay interest
on the Notes (except defaulted interest) and Liquidated
Damages to the Persons who are registered Holders of Notes
at the close of business on the June 1 or December 1 next
preceding the Interest Payment Date, even if such Notes are
cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of
the Indenture with respect to defaulted interest. The Notes
will be payable as to principal, premium, interest and
Liquidated Damages at the office or agency of the Company
maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment
of interest and Liquidated Damages may be made by check
mailed to the Holders at their addresses set forth in the
register of Holders, and provided that payment by wire
transfer of immediately available funds will be required
with respect to principal of and interest, premium and
Liquidated Damages on, all Global Notes and all other Notes
the Holders of which shall have provided wire transfer
instructions to the Company or the Paying Agent. Such
payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender
for payment of public and private debts.
3. Paying Agent and Registrar. Initially, Harris
Trust and Savings Bank, the Trustee under the Indenture,
will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any
Holder. The Company or any of its Subsidiaries may act in
any such capacity.
4. Indenture. The Company issued the Notes under an
Indenture dated as of June 17, 1997 (the "Indenture")
between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of
1939, as amended (15 U.S. Code SectionSection 77aaa-77bbbb).
The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of
such terms. The Notes are unsecured general obligations of
the Company limited to $170.0 million in aggregate principal amount.
5. Optional Redemption.
(a) Except as described in paragraphs (b) and (c)
below, the Notes will not be redeemable at the Company's
option prior to June 15, 2002. Thereafter, the Notes will
be subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 30 nor more
than 60 days' notice, at the redemption prices (expressed as
percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon,
if any, to the applicable redemption date, if redeemed
during the twelve-month period beginning on June 15 of the
years indicated below:
YEAR PERCENTAGE
2002 105.250%
2003 103.500%
2004 101.750%
2005 and thereafter 100.000%
(b) In addition, at any time and from time to
time, prior to June 15, 2000, the Company may, on any one or
more occasions, redeem up to 35% of the aggregate principal
amount at maturity of Notes at a redemption price of 110.5%
of the Accreted Value thereof (determined at the redemption
date), plus accrued and unpaid Liquidated Damages thereon,
if any, to the redemption date, with the net cash proceeds
of a public offering of common stock of the Company;
provided that at least 65% of the aggregate principal amount
at maturity of Notes remain outstanding immediately after
the occurrence of each such redemption; and provided,
further, that such redemption shall occur within 60 days of
the date of the closing of such public offering.
(c) At any time on or prior to June 15, 2002, the
Notes may be redeemed as a whole but not in part at the
option of the Company upon the occurrence of a Change of
Control, upon not less than 30 nor more than 60 days' prior
notice (but in no event may any such redemption occur more
than 90 days after the occurrence of such Change of Control)
mailed by first-class mail to each Holder's registered
address, at a redemption price equal to 100% of the Accreted
Value thereof plus the Applicable Premium as of, and
Liquidated Damages, if any, to, the redemption date.
6. Mandatory Redemption.
Except as set forth in paragraph 7 below, the Company
shall not be required to make mandatory redemption payments
with respect to the Notes.
7. Repurchase at Option of Holder.
(a) Upon the occurrence of a Change of Control,
unless all Notes have been called for redemption pursuant
paragraph 5(c) above, each Holder of Notes will have the
right to require the Company to repurchase all or any part
(equal to $1,000 or an integral multiple thereof) of such
Holder's Notes pursuant to the offer described below (the
"Change of Control Offer") at an offer price in cash (the
"Change of Control Payment") equal to 101% of the aggregate
principal amount thereof plus accrued and unpaid interest
and Liquidated Damages thereon, if any, to the date of
purchase (or, if such Change of Control Offer occurs prior
to the Full Accretion Date, 101% of the Accreted Value
thereof on the date of repurchase plus accrued and unpaid
Liquidated Damages, if any).
(b) If the Company or any Subsidiary consummates
one or more Asset Sales and does not use all of the Net
Proceeds from such Asset Sales as provided in Section 4.10
of the Indenture, the Company will be required, under
certain circumstances, to utilize the Excess Proceeds from
such Asset Sales to offer (an "Excess Proceeds Offer") to
purchase Notes at a purchase price in cash equal to 100% of
the aggregate principal amount of the Notes plus any accrued
and unpaid interest and Liquidated Damages, if any, to the
date of purchase (or, if such Exceeds Proceeds Offer is
prior to the Full Accretion Date, 100% of the Accreted Value
thereof, plus accrued and unpaid interest and Liquidated
Damages thereon, if any). If the Excess Proceeds are
insufficient to purchase all Notes tendered pursuant to any
Excess Proceeds Offer, the Company shall select the Notes to
be purchased in accordance with the terms of Article 3 and
Section 4.10 of the Indenture, as applicable.
(c) If the Company consummates a Subsidiary
Distribution, the Company will be required, to offer (a
"Subsidiary Distribution Offer") to purchase a portion of
the Notes pursuant to Section 1.01 of the Indenture, at a
purchase price in cash equal to 101% of the aggregate
principal amount, plus accrued interest and Liquidated
Damages thereon, if any (or, if such Subsidiary Distribution
Offer is prior to the Full Accretion Date, 101% of the
Accreted Value thereof, plus accrued and unpaid interest and
Liquidated Damages thereon, if any). If the Company is not
required to purchase all of the Notes tendered pursuant to a
Subsidiary Distribution Offer, the Company shall select the
Notes to be purchased in accordance with the terms of
Article 3 of the Indenture.
8. Notice of Redemption. Notice of redemption will be
mailed at least 30 days but not more than 60 days before the
redemption date to each Holder whose Notes are to be
redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000, unless all of the Notes held by a
Holder are to be redeemed. On and after the redemption date
interest ceases to accrue on Notes or portions thereof
called for redemption.
9. Denominations, Transfer, Exchange. The Notes are
in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. The transfer of
Notes may be registered and Notes may be exchanged as
provided in the Indenture. The Registrar and the Trustee
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 Company
need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the
unredeemed portion of any Note being redeemed in part.
Also, it need not exchange or register the transfer of any
Notes for a period of 15 days before a selection of Notes to
be redeemed or during the period between a record date and
the corresponding Interest Payment Date.
10. Persons Deemed Owners. The registered Holder of a
Note may be treated as its owner for all purposes.
11. Amendment, Supplement and Waiver. Subject to
certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of
at least a majority in principal amount of the then
outstanding Notes, and any existing default or compliance
with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in
principal amount of the then outstanding Notes. Without the
consent of any Holder of a Note, the Indenture or the Notes
may be amended or supplemented to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Notes in
addition to or in place of certificated Notes, to provide
for the assumption of the Company's obligations to Holders
of the Notes in case of a merger or consolidation, to make
any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any
such Holder, or to comply with the requirements of the SEC
in order to effect or maintain the qualification of the
Indenture under the Trust Indenture Act.
12. Defaults and Remedies. Events of Default include:
(a) default for 30 days in the payment when due of interest
on, or Liquidated Damages with respect to, the Notes
(whether or not prohibited by Article 10 of the Indenture);
(b) default in payment when due of the principal of or
premium, if any, on the Notes (whether or not prohibited by
Article 10 of the Indenture); (c) failure by the Company for
30 days after notice to comply with the provisions described
under Sections 4.07, 4.09, 4.10, 4.15 or 5.01 of the
Indenture; (d) failure by the Company for 60 days after
notice to comply with any of its other agreements in the
Indenture or the Notes; (e) the failure by the Company or
any Restricted Subsidiary that is a Significant Subsidiary
to pay any Indebtedness within any applicable grace period
after final maturity or acceleration by the holders thereof
because of a default if the total amount of such
Indebtedness unpaid or accelerated exceeds $20.0 million;
(f) the failure by the Company or any of its Restricted
Subsidiaries that is a Significant Subsidiary to pay final
non-appealable judgments aggregating in excess of $20.0
million, which judgments are not paid, discharged or stayed
for a period of 60 days; (g) except as permitted by the
Indenture, any Subsidiary Guarantee by a Guarantor that is a
Significant Subsidiary shall be held in any judicial
proceeding to be unenforceable or invalid or shall cease for
any reason to be in full force and effect or any Guarantor,
or any Person acting on behalf of any Guarantor, shall deny
or disaffirm its obligations under its Subsidiary Guarantee;
and (h) certain events of bankruptcy or insolvency with
respect to the Company or any of its Restricted Subsidiaries
that is a Significant Subsidiary. If any Event of Default
occurs and is continuing, the Note Trustee or the Holders of
at least 25% in principal amount of the then outstanding
Notes may declare all the Notes to be due and payable
immediately. Notwithstanding the foregoing, in the case of
an Event of Default arising from certain events of
bankruptcy or insolvency with respect to the Company or any
of its Restricted Subsidiaries that is a Significant
Subsidiary, all outstanding Notes will become due and
payable without further action or notice. Holders of the
Notes may not enforce this Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then
outstanding Notes may direct the applicable Trustee in its
exercise of any trust or power. The Trustee may withhold
from Holders of the Notes notice of any continuing Default
or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it
determines that withholding notice is in their interest.
13. Trustee Dealings with Company. The Trustee, in
its individual or any other capacity, may make loans to,
accept deposits from, and perform services for the Company
or its Affiliates, and may otherwise deal with the Company
or its Affiliates, as if it were not the Trustee.
14. No Recourse Against Others. A director, officer,
employee, incorporator or stockholder, of the Company, as
such, shall not have any liability for any obligations of
the Company under the Notes or the Indenture or for any
claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of
the Notes.
15. Authentication. This Note shall not be valid
until authenticated by the manual signature of the Trustee
or an authenticating agent.
16. Abbreviations. Customary abbreviations may be
used in the name of a Holder or an assignee, such as: TEN
COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (=
Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
17. Additional Rights of Holders of Transfer
Restricted Securities. In addition to the rights provided
to Holders of Notes under the Indenture, Holders of
Transferred Restricted Securities shall have all the rights
set forth in the Registration Rights Agreement dated as of
June 17, 1997, between the Company and the parties named on
the signature pages thereof (the "Registration Rights
Agreement").
18. 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 Notes and the Trustee may 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 Notes 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 a copy of the Indenture and/or
the Registration Rights Agreement. Requests may be made to:
Falcon Building Products, Inc.
Two North Riverside Plaza, Suite 1100
Chicago, Illinois 60606
Telecopier No.: (312) 906-8402
Attention: Gus Athas
<PAGE>
Assignment Form
To assign this Note, fill in the form below: (I) or
(we) assign and transfer this Note to
___________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
___________________________________________________________
___________________________________________________________
___________________________________________________________
___________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ___________________________________
to transfer this Note 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 face of this Note)
Signature Guarantee.
<PAGE>
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by
the Company pursuant to Section 4.10 or Section 4.15 of the
Indenture or pursuant to a Subsidiary Distribution Offer
check the box below:
Section 4.10 Section 4.15
Subsidiary Distribution Offer
If you want to elect to have only part of the Note
purchased by the Company pursuant to Section 4.10 or Section
4.15 of the Indenture or pursuant to a Subsidiary
Distribution Offer, state the amount you elect to have
purchased: $___________
Date:_________________ Your Signature: ____________________
(Sign exactly as your name appears on the Note)
Tax Identification No.: ____________________
Signature Guarantee.
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTE/2
The following exchanges of a part of this Global Note
for Definitive Notes have been made:
Date of Exchange Amount of decrease in Amount of increase in
Principal Amount of Principal Amount of
this Global Note this Global Note
Principal Amount of this Signature of
Global Note authorized officer of
following such decrease Trustee or Note
(or increase) Custodian
Exhibit 10.1
FALCON BUILDING PRODUCTS, INC.
CREDIT AGREEMENT
dated as of June 17, 1997
$300,000,000
Credit Facility
CHASE SECURITIES INC.,
as Arranger,
BANKERS TRUST COMPANY,
as Documentation Agent,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1 Defined Terms
1.2 Other Definitional Provisions
SECTION 2. TERM LOANS
2.1 Term Loans
2.2 Repayment of Term Loans
2.3 Use of Proceeds
SECTION 3. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
3.1 Revolving Credit Commitments
3.2 Commitment Fee
3.3 Proceeds of Revolving Credit Loans
3.4 Swing Line Commitment
3.5 Issuance of Letters of Credit
3.6 Participating Interests
3.7 Procedure for Opening Letters of Credit
3.8 Payments in Respect of Letters of Credit
3.9 Letter of Credit Fees
3.10 Letter of Credit Reserves
3.11 Further Assurances
3.12 Obligations Absolute
3.13 Assignments
3.14 Participations
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
4.1 Procedure for Borrowing
4.2 Conversion and Continuation Options
4.3 Changes of Commitment Amounts
4.4 Optional and Mandatory Prepayments; Repayments of Term Loans
4.5 Interest Rates and Payment Dates
4.6 Computation of Interest and Fees
4.7 Certain Fees
4.8 Inability to Determine Interest Rate
4.9 Pro Rata Treatment and Payments
4.10 Illegality
4.11 Requirements of Law
4.12 Indemnity
4.13 Repayment of Loans; Evidence of Debt
4.14 Replacement of Lenders
SECTION 5. REPRESENTATIONS AND WARRANTIES
5.1 Financial Condition
5.2 No Change
5.3 Corporate Existence; Compliance with Law
5.4 Corporate Power; Authorization
5.5 Enforceable Obligations
5.6 No Legal Bar
5.7 No Material Litigation
5.8 Investment Company Act
5.9 Federal Regulation
5.10 No Default
5.11 Taxes
5.12 Subsidiaries
5.13 Ownership of Property; Liens
5.14 ERISA
5.15 Collateral Documents
5.16 Copyrights, Patents, Permits, Trademarks and Licenses
5.17 Environmental Matters
5.18 Accuracy and Completeness of Information
5.19 Acquisition Co.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans and Letters of Credit
6.2 Conditions to All Loans and Letters of Credit
SECTION 7. AFFIRMATIVE COVENANTS
7.1 Financial Statements
7.2 Certificates; Other Information
7.3 Payment of Obligations
7.4 Conduct of Business and Maintenance of Existence
7.5 Maintenance of Property; Insurance
7.6 Inspection of Property; Books and Records; Discussions
7.7 Notices
7.8 Environmental Laws
7.9 Additional Collateral
SECTION 8. NEGATIVE COVENANTS
8.1 Indebtedness
8.2 Limitation on Liens
8.3 Limitation on Contingent Obligations
8.4 Prohibition of Fundamental Changes
8.5 Prohibition on Sale of Assets
8.6 Limitation on Investments, Loans and Advances
8.7 Capital Expenditures
8.8 Interest Rate Agreements
8.9 Debt to EBITDA
8.10 Interest Coverage
8.11 Limitation on Dividends
8.12 Transactions with Affiliates
8.13 Prepayments and Amendments of Subordinated Debt
8.14 Limitation on Changes in Fiscal Year
8.15 Limitation on Lines of Business
SECTION 9. EVENTS OF DEFAULT
SECTION 10. THE ADMINISTRATIVE AGENT; THE ISSUING LENDER
10.1 Appointment
10.2 Delegation of Duties
10.3 Exculpatory Provisions
10.4 Reliance by Administrative Agent
10.5 Notice of Default
10.6 Non-Reliance on Administrative Agent and Other Lenders
10.7 Indemnification
10.8 The Administrative Agent in its Individual Capacity
10.9 Successor Administrative Agent
10.10 Issuing Lender as Issuer of Letters of Credit
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers
11.2 Notices
11.3 No Waiver; Cumulative Remedies
11.4 Survival of Representations and Warranties
11.5 Payment of Expenses and Taxes
11.6 Successors and Assigns; Participations and Assignments
11.7 Adjustments; Set-off
11.8 Counterparts
11.9 Governing Law; No Third Party Rights
11.10 Submission to Jurisdiction; Waivers
11.11 Releases
11.12 Interest
11.13 Special Indemnification
11.14 Permitted Payments and Transactions
<PAGE>
CREDIT AGREEMENT, dated as of June 17, 1997, among
FALCON BUILDING PRODUCTS, INC., a Delaware corporation (the
"Company"), the several lenders from time to time parties
hereto (the "Lenders"), CHASE SECURITIES INC. ("CSI"), as
arranger (the "Arranger"), BANKERS TRUST COMPANY, as
documentation agent (in such capacity, the "Documentation
Agent"), and THE CHASE MANHATTAN BANK, a New York banking
corporation, as administrative agent for the Lenders (in
such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, FBP Acquisition Corp., Inc., a Delaware
corporation ("Acquisition Co"), an affiliate of Investcorp,
S.A., certain of its affiliated entities and other initial
investors (collectively, the "Investors") and the Company
have entered into an Agreement and Plan of Merger, dated as
March 20, 1997, as amended (together with any schedule
attached thereto, as amended, supplemented or otherwise
modified from time to time, the "Merger Agreement"),
pursuant to which AcquisitionCo will be merged with and into
the Company (the "Merger"), the Company being the surviving
corporation of the Merger;
WHEREAS, upon the Merger, the Investors will own
approximately 88% of the common stock of the Company and
certain existing shareholders and management (the "Existing
Shareholders") will own the remaining portion of such common
stock;
WHEREAS, the Company intends to finance the Merger
(including the refinancing of certain existing indebtedness)
and related premiums, fees and expenses from the following
sources: (a) $152,800,000 in common equity (consisting of a
cash investment of at least $134,600,000 from the Investors,
with the balance represented by common stock retained by the
Existing Shareholders); (b) $300,000,000 from the senior
secured credit facilities provided for herein comprised of a
$175,000,000 term loan facility and a $125,000,000 revolving
credit facility; and (c) at least $245,000,000 in gross cash
proceeds from an issuance by the Company of either (i)
subordinated unsecured loans or (ii) at least $145,000,000
in gross cash proceeds of senior subordinated notes and at
least $100,000,000 in gross cash proceeds of senior
subordinated discount notes or such other amounts of such
senior subordinated indebtedness aggregating approximately
$247,000,000 as may be reasonably agreed to by the
Administrative Agent, the Arranger and the Documentation
Agent; and
WHEREAS, the Company has requested the Lenders to
make loans and other extensions of credit available to the
Company to enable the Company to finance a portion of the
Merger and for the other purposes set forth herein;
NOW, THEREFORE, the Company, the Administrative
Agent, the Arranger, the Documentation Agent and the Lenders
agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this
Agreement, the terms defined in the caption hereto
shall have the meanings set forth therein, and the
following terms have the following meanings:
"AcquisitionCo": as defined in the Recitals
hereto.
"Additional Mortgage": as defined in subsection
7.9(e).
"Adjustment Date": as defined in the definition
of Applicable Margin.
"Affiliate": of any Person (a) any Person (other
than a Subsidiary) which, directly or indirectly, is in
control of, is controlled by, or is under common
control with such Person, or (b) any Person who is a
director or officer (i) of such Person, (ii) of any
Subsidiary of such Person or (iii) of any Person
described in clause (a) above. For purposes of this
definition, control of a Person shall mean the power,
direct or indirect, (x) to vote 25% or more of the
securities having ordinary voting power for the
election of directors of such Person, whether by
ownership of securities, contract, proxy or otherwise,
or (y) to direct or cause the direction of the
management and policies of such Person, whether by
ownership of securities, contract, proxy or otherwise.
"Agreement": this Credit Agreement, as amended,
supplemented or modified from time to time.
"Alternate Base Rate": for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16
of 1%) equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Base CD Rate in effect on
such day plus 1% and (c) the Federal Funds Effective
Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of
interest per annum publicly announced from time to time
by the Administrative Agent as its prime rate in effect
at its principal office in New York City (the Prime
Rate not being intended to be the lowest rate of
interest charged by the Administrative Agent in
connection with extensions of credit to debtors); "Base
CD Rate" shall mean the sum of (a) the product of (i)
the Three-Month Secondary CD Rate and (ii) a fraction,
the numerator of which is one and the denominator of
which is one minus the C/D Reserve Percentage and (b)
the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market
rate for three-month certificates of deposit reported
as being in effect on such day (or, if such day shall
not be a Business Day, the next preceding Business Day)
by the Board through the public information telephone
line of the Federal Reserve Bank of New York (which
rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release
H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such
next preceding Business Day, the average of the
secondary market quotations for three-month
certificates of deposit of major money center banks in
New York City received at approximately 10:00 A.M., New
York City time, on such day (or, if such day shall not
be a Business Day, on the next preceding Business Day)
by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized
standing selected by it; and "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of
the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by
federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of
New York, or, if such rate is not so published for any
day which is a Business Day, the average of the
quotations for the day of such transactions received by
the Administrative Agent from three federal funds
brokers of recognized standing selected by it. Any
change in the Alternate Base Rate due to a change in
the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective as of the opening of
business on the effective day of such change in the
Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate, respectively.
"Alternate Base Rate Loans": Loans at such time
as they are made and/or being maintained at a rate of
interest based upon the Alternate Base Rate.
"Applicable Margin": for Term Loans, Revolving
Credit Loans and Swing Line Loans of the Types set
forth below, the rate per annum set forth under the
relevant column heading opposite such Loans below:
Alternate
Base Rate Eurodollar
Loans Loans
Term Loans: 2.00% 3.00%
Revolving Credit Loans: 1.50% 2.50%
Swing Line Loans: 1.50% Not applicable
; provided that the Applicable Margin with respect to
Revolving Credit Loans and Swing Line Loans will be
adjusted on each Adjustment Date (as defined below) to
the applicable rate per annum set forth in the pricing
grid attached hereto as Schedule II based on the
Leverage Ratio as determined from the relevant
financial statements delivered pursuant to subsection
7.1. Changes in the Applicable Margin resulting from
changes in the Leverage Ratio shall become effective on
the date (the "Adjustment Date") on which such
financial statements are delivered to the Lenders (but
in any event not later than the 50th day after the end
of each of the first three quarterly periods of each
fiscal year or the 95th day after the end of each
fiscal year as the case may be) and shall remain in
effect until the next change to be effected pursuant to
this definition, provided that (a) the Applicable
Margin shall be initially the rate per annum set forth
under the relevant column heading above; (b) if for any
reason the financial statements required by subsection
7.1 are not timely delivered to the Lenders, the
Leverage Ratio shall be (i) during the period from the
date upon which such financial statements were required
to be delivered until the date upon which they actually
are delivered, the Applicable Margin in effect
immediately prior to the date such financial statements
were due, and (ii) if such financial statements, when
actually delivered, would have required an increase in
the Applicable Margin over the Applicable Margin in
effect immediately prior to the date such financial
statements were due, the Company shall promptly
following the delivery of such financial statements pay
to the Lenders and the Administrative Agent any
additional amounts of interest or fees which would have
been payable on any previous Interest Payment Date had
such higher Applicable Margin been in effect from the
date such financial statements were required to be
delivered; and provided, further, that any change in
the Applicable Margin as a result of a change in the
Leverage Ratio shall apply to all Loans for each day
during the period commencing on the effective date of
such change and ending on the date immediately
preceding the effective date of the next such change in
the Applicable Margin.
"Arranger": as defined in the Preamble hereto.
"Asset Sale": any sale, sale-leaseback, or other
disposition by the Company or any Subsidiary restricted
by subsection 8.5 of any of its property or assets,
including the stock of any Subsidiary, except sales and
dispositions permitted by subsections 8.5(a), (b), (c),
(f), (g) and (h).
"Assignee": as defined in subsection 11.6(c).
"Assignment and Acceptance": an assignment and
acceptance substantially in the form of Exhibit D.
"Available Revolving Credit Commitment": as to
any Lender, at a particular time, an amount equal to
(a) the amount of such Lender's Revolving Credit
Commitment at such time less (b) the sum of (i) the
aggregate unpaid principal amount at such time of all
Revolving Credit Loans made by such Lender pursuant to
subsection 3.1, (ii) such Lender's Revolving Credit
Commitment Percentage of the aggregate unpaid principal
amount at such time of all Swing Line Loans, provided
that for purposes of calculating the Revolving Credit
Commitments pursuant to subsection 3.2 the amount
referred to in this clause (ii) shall be zero, (iii)
such Lender's L/C Participating Interest in the
aggregate amount available to be drawn at such time
under all outstanding Letters of Credit issued by the
Issuing Lender and (iv) such Lender's Revolving Credit
Commitment Percentage of the aggregate outstanding
amount of L/C Obligations; collectively, as to all the
Lenders, the "Available Revolving Credit Commitments".
"Bankruptcy Code": Title I of the Bankruptcy
Reform Act of 1978, as amended and codified at Title 11
of the United States Code.
"Board": the Board of Governors of the Federal
Reserve System, together with any successor.
"Borrowing Date": any Business Day specified in a
notice pursuant to (a) subsection 3.4 or 4.1 as a date
on which the Company requests the Swing Line Lender or
the Lenders to make Loans hereunder or (b) subsection
3.5 as a date on which the Company requests the Issuing
Lender to issue a Letter of Credit hereunder.
"Bridge Commitment Letter": the Commitment Letter
and term sheet thereto dated as of May 8, 1997 by and
between Investcorp Investment Equity Limited, on its
behalf and on behalf of certain of its affiliates and
other investors and Smith Barney Holdings, Bankers
Trust New York Corporation, The Chase Manhattan Bank
and Merrill Lynch Capital Corporation.
"Bridge Loan Agreement": the Bridge Loan
Agreement that may be entered into pursuant to the
Bridge Commitment Letter among Smith Barney Holdings
Inc., Bankers Trust New York Corporation, Chase and
Merrill Lynch Capital Corporation and an affiliate of
AcquisitionCo, as the same may be amended, supplemented
or otherwise modified from time to time in accordance
with its terms and the terms of this Agreement.
"Bridge Subordinated Debt": the subordinated
bridge loans or exchange notes of the Company
outstanding from time to time pursuant to the Bridge
Loan Agreement or the Indenture contemplated thereby.
"Bridge Subordinated Debt Documents": the Bridge
Loan Agreement and the notes evidencing the Bridge
Subordinated Debt.
"Business Day": a day other than a Saturday,
Sunday or other day on which commercial banks in New
York City are authorized or required by law to close.
"Capital Expenditures": for any period, all
amounts which would, in accordance with GAAP, be set
forth as capital expenditures (exclusive of any amount
attributable to capitalized interest) on the
consolidated statement of cash flows or other similar
statement of the Company and its Subsidiaries for such
period and shall in any event include expenditures in
connection with acquisitions the Company elects to be
included as Capital Expenditures pursuant to subsection
8.6(g)(iii)(B) but shall exclude (x) any expenditures
made with the proceeds of condemnation or eminent
domain proceedings affecting real property or with
insurance proceeds and (y) any expenditures made in
connection with subsection 8.5(i); provided that any
Capital Expenditures financed with the proceeds of any
Indebtedness permitted hereunder (other than
Indebtedness incurred hereunder) shall be deemed to be
a Capital Expenditure only in the period in which, and
by the amount which, any principal of such Indebtedness
is repaid.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however
designated) of capital stock of a corporation, any and
all equivalent ownership interests in a Person (other
than a corporation) and any and all warrants or options
to purchase any of the foregoing.
"Cash Equivalents": (a) securities issued or
directly and fully guaranteed or insured by the United
States or any agency or instrumentality thereof having
maturities of not more than six months from the date of
acquisition, (b) certificates of deposit and eurodollar
time deposits with maturities of one year or less from
the date of acquisition, bankers' acceptances with
maturities not exceeding one year and overnight bank
deposits, in each case with any lender or with any
domestic (in the case of any investments, acquisitions
or holdings by the Company or its Domestic
Subsidiaries) commercial bank or trust company having
capital and surplus in excess of $300,000,000, (c)
repurchase obligations with a term of not more than
seven days for underlying securities of the types
described in clauses (a) and (b) entered into with any
financial institution meeting the qualifications
specified in clause (b) above, (d) commercial paper
having the highest rating obtainable from S&P or
Moody's and in each case maturing within one year after
date of acquisition; (e) investment funds investing 95%
of their assets in securities of the type described in
clauses (a)-(d) above, (f) readily marketable direct
obligations issued by any state of the United States or
any political subdivision thereof having one of the two
highest rating categories obtainable from either S&P or
Moody's and (g) indebtedness with a rating of "A" or
higher from S&P or "A2" or higher from Moody's.
"C/D Assessment Rate": for any day the net annual
assessment rate (rounded upwards, if necessary, to the
next 1/100 of 1%) determined by the Administrative
Agent to be payable on such day to the Federal Deposit
Insurance Corporation or any successor ("FDIC") for
FDIC's insuring time deposits made in Dollars at
offices of the Administrative Agent in the United
States.
"C/D Reserve Percentage": for any day as applied
to any Base CD Rate, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed
by the Board for determining maximum reserve
requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new
non-personal time deposits in Dollars having a maturity
of 30 days or more.
"Change in Law": with respect to any Lender, the
adoption of, or change in, any law, rule, regulation,
policy, guideline or directive (whether or not having
the force of law) or any change in the interpretation
or application thereof by any Governmental Authority
having jurisdiction over such Lender, in each case
after the Closing Date.
"Change of Control": shall be considered to have
occurred if (i) at any time prior to an IPO by the
Company, Investcorp or any of its Affiliates (provided
that for purposes of this definition only the reference
to 25% in the definition of Affiliate contained in
subsection 1.1 shall be deemed to be 51%) or
Subsidiaries, any Person that is a member of the senior
management of the Company, or any entity the majority
of the equity ownership interests of which is owned by
such senior management of the Company, shall cease to
own, directly or indirectly, in the aggregate, at least
51% of the issued and outstanding voting stock of the
Company, free and clear of all Liens or (ii) at any
time after an IPO by the Company, if any Person (other
than Investcorp, any of its Affiliates or Subsidiaries,
any Person that is a member of the senior management of
the Company, any entity the majority of the equity
ownership interests of which is owned by such senior
management of the Company or any Person acting in the
capacity of an underwriter), whether singly or in
concert with one or more Persons, shall, directly or
indirectly, have acquired, or acquire the power (x) to
vote or direct the voting of 30% or more, on a fully
diluted basis, of the outstanding common stock of the
Company or (y) to elect or designate for election a
majority of the Board of Directors of the Company by
voting power, contract or otherwise.
"Chase": The Chase Manhattan Bank, a New York
banking corporation, and its successors.
"Closing Date": the date (which shall be on or
prior to August 15, 1997) on which the Lenders make
their initial Loans or the Issuing Lender issues the
initial Letter of Credit.
"Code": the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral": all assets of the Credit Parties,
now owned or hereafter acquired, upon which a Lien is
purported to be created by any Security Document.
"Commercial L/C": a commercial documentary Letter
of Credit under which the Issuing Lender agrees to make
payments in Dollars for the account of the Company, on
behalf of the Company or a Subsidiary, in respect of
obligations of the Company or such Subsidiary in
connection with the purchase of goods or services in
the ordinary course of business.
"Commitment": as to any Lender at any time, such
Lender's Swing Line Commitment, Term Loan Commitment
and Revolving Credit Commitment; collectively, as to
all the Lenders, the "Commitments".
"Commitment Percentage": as to any Lender at any
time, its Term Loan Commitment Percentage or its
Revolving Credit Commitment Percentage, as the context
may require.
"Commonly Controlled Entity": an entity, whether
or not incorporated, which is under common control with
the Company within the meaning of Section 4001 of ERISA
or is part of a group which includes the Company and
which is treated as a single employer under Section
414(b) or (c) of the Code.
"Company": as defined in the preamble hereto.
"Company Pledge Agreement": the Pledge Agreement,
substantially in the form of Exhibit G-1, to be made by
the Company in favor of the Administrative Agent, for
the ratable benefit of the Lenders, as the same may be
amended, modified or supplemented from time to time.
"Company Security Agreement": the Company
Security Agreement, substantially in the form of
Exhibit E-1, to be made by the Company in favor of the
Administrative Agent, for the ratable benefit of the
Lenders, as the same may be amended, modified or
supplemented from time to time.
"Consolidated Current Assets": at a particular
date, all amounts which would, in conformity with GAAP,
be included under current assets on a consolidated
balance sheet of the Company and its Subsidiaries as at
such date.
"Consolidated Current Liabilities": at a
particular date, all amounts which would, in conformity
with GAAP, be included under current liabilities on a
consolidated balance sheet of the Company and its
Subsidiaries as at such date, excluding the current
portion of long-term debt and the entire outstanding
principal amount of the Revolving Credit Loans.
"Consolidated EBITDA": for any period, the
Consolidated Net Income of the Company and its
Subsidiaries for such period, plus, without duplication
and to the extent reflected as a charge in the
statement of such Consolidated Net Income for such
period, the sum of (a) total income tax expense, (b)
interest expense, amortization or writeoff of debt
discount, debt issuance, warrant and other equity
issuance costs and commissions, discounts, redemption
premium and other fees and charges associated with the
Loans, letters of credit permitted hereunder, Financing
Leases, the Subordinated Debt or the acquisition or
repayment of any debt securities of the Company
permitted hereunder, and net costs associated with
Interest Rate Agreements to which the Company is a
party in respect of the Loans (including commitment
fees and other periodic bank charges), (c) costs of
surety bonds, (d) depreciation and amortization
expense, (e) amortization of inventory write-up under
APB 16, amortization of intangibles (including, but not
limited to, goodwill and costs of interest-rate caps
and the cost of non-competition agreements) and
organization costs, (f) non-cash amortization of
Financing Leases, (g) franchise taxes, (h) management
fees paid as contemplated by subsection 11.14 and
charges related to management fees prepaid in
connection with the Merger, (i) all cash dividend
payments (and non-cash dividend expenses) on any series
of preferred stock, (j) any expenses incurred in
connection with any merger, any acquisition or joint
venture permitted herein, (k) any other write-downs,
write-offs, minority interests and other non-cash
charges or expenses, (l) any non-cash restructuring
charge or reserve, (m) expenses and charges related to
any equity offering, (n) expenses consisting of
internal software development costs that are expensed
during the period but could have been capitalized in
accordance with GAAP, (o) securitization expense, and
(p) nonrecurring litigation or claim settlement charges
or expenses; provided that (i) the cumulative effect of
a change in accounting principles (effected either
through cumulative effect adjustment or a retroactive
application) shall be excluded, (ii) the net income of
any Person acquired in a pooling of interests
transaction for any period prior to the date of such
acquisition shall be excluded, (iii) the impact of
foreign currency and hedging translations and
transactions shall be excluded, and (iv) all other
extraordinary gains and losses shall be excluded.
"Consolidated Funded Indebtedness": at a
particular date, all Indebtedness (other than
Indebtedness described in clauses (b), (c), (d) or (f)
of the definition of "Indebtedness" included in this
subsection 1.1), of the Company and its Subsidiaries
determined on a consolidated basis in accordance with
GAAP at such date.
"Consolidated Net Income": for any period, net
income of the Company and its Subsidiaries, determined
on a consolidated basis in accordance with GAAP;
provided that: (i) the net income (but not loss) of any
Person that is not a Subsidiary or that is accounted
for by the equity method of accounting shall be
included only to the extent of the amount of dividends
or distributions paid in cash to the Company or a
wholly-owned Subsidiary and (ii) net income of any
Subsidiary shall be excluded to the extent that the
declaration or payment of dividends or similar
distributions by that Subsidiary of that net income is
prohibited or not permitted at the date of
determination.
"Contingent Obligation": as to any Person, any
obligation of such Person guaranteeing or in effect
guaranteeing any Indebtedness ("primary obligations")
of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including,
without limitation, any obligation of such Person,
whether or not contingent (a) to purchase any such
primary obligation or any property constituting direct
or indirect security therefor, (b) to advance or supply
funds (i) for the purchase or payment of any such
primary obligation or (ii) to maintain working capital
or equity capital of the primary obligor or otherwise
to maintain the net worth or solvency of the primary
obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary
obligation or (d) otherwise to assure or hold harmless
the owner of any such primary obligation against loss
in respect thereof; provided, that the term Contingent
Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary
course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the
stated or determinable amount (based on the maximum
reasonably anticipated net liability in respect thereof
as determined by the Company in good faith) of the
primary obligation or portion thereof in respect of
which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably
anticipated net liability in respect thereof (assuming
such Person is required to perform thereunder) as
determined by the Company in good faith.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of
any agreement, instrument or undertaking to which such
Person is a party or by which it or any of the property
owned by it is bound.
"Credit Documents": the collective reference to
this Agreement, the Notes, the Pledge Agreements, the
Security Agreements, the Mortgages and the Guarantees.
"Credit Parties": the collective reference to the
Company and each Subsidiary which may from time to time
be party to a Credit Document.
"Default": any of the events specified in Section
9, whether or not any requirement for the giving of
notice, the lapse of time, or both, has been satisfied.
"Dollars" and "$": dollars in lawful currency of
the United States.
"Domestic Subsidiary": any Subsidiary other than
a Foreign Subsidiary.
"Environmental Laws": any and all foreign,
Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or
requirements of any Governmental Authority or
requirements of law (including, without limitation,
common law) regulating or imposing liability or
standards of conduct concerning environmental or public
health protection matters, including, without
limitation, Hazardous Materials, as now or may at any
time hereafter be in effect.
"Environmental Permits": any and all permits,
licenses, registrations, notifications, exemptions and
any other authorizations required under any
Environmental Law.
"ERISA": the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Eurocurrency Reserve Requirements": for any day
as applied to a Eurodollar Loan, the aggregate (without
duplication) of the rates (expressed as a decimal
fraction) of reserve requirements in effect on such day
(including, without limitation, basic, supplemental,
marginal and emergency reserves under any regulations
of the Board or other Governmental Authority having
jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board) maintained by a member bank
of such System.
"Eurodollar Base Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded
to the nearest 1/100th of 1%) of the offered rates for
deposits in Dollars with a term comparable to such
Interest Period that appears on the Telerate British
Bankers Association Interest Settlement Rates Page (as
defined below) at approximately 11:00 A.M., London
time, on the second full Business Day preceding the
first day of such Interest Period; provided that if
there shall at any time no longer exist a Telerate
British Bankers Association Interest Settlement Rates
Page, "Eurodollar Base Rate" shall mean, with respect
to each day during each Interest Period pertaining to a
Eurodollar Loan, the rate per annum equal to the rate
at which Chase is offered Dollar deposits at or about
10:00 A.M., New York City time, two Business Days prior
to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of
its Eurodollar Loans are then being conducted for
delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount
comparable to the amount of its Eurodollar Loan to be
outstanding during such Interest Period. "Telerate
British Bankers Assoc. Interest Settlement Rates Page"
shall mean the display designated as Page 3750 on the
Telerate System Incorporated Service (or such other
page as may replace such page on such service for the
purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London
interbank deposit market).
"Eurodollar Lending Office": as to any Lender the
office of such Lender which shall be making or
maintaining Eurodollar Loans.
"Eurodollar Loans": Loans at such time as they
are made and/or being maintained at a rate of interest
based upon a Eurodollar Rate.
"Eurodollar Rate": with respect to each day
during each Interest Period pertaining to a Eurodollar
Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward
to the nearest 1/100th of 1%):
Eurodollar Base Rate
____________________________________
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified
in Section 9, provided that any requirement for the
giving of notice, the lapse of time, or both, has been
satisfied.
"Excess Cash Flow": for any fiscal year of the
Company, commencing with the fiscal year ending on
December 31, 1998, the excess of (a) Consolidated
EBITDA for such fiscal year over (b) the sum, without
duplication, of (i) the aggregate amount actually paid
by the Company and its Subsidiaries in cash during such
fiscal year on account of capital expenditures or
acquisitions (other than capital expenditures made with
the proceeds of eminent domain or condemnation
proceedings to the extent such proceeds are not
included in the determination of Consolidated EBITDA
for such fiscal year), (ii) the aggregate amount of
payments of principal in respect of any Indebtedness
during such fiscal year (other than any such payments
of principal pursuant to subsections 4.4(b)(i), (ii),
(iii) and (iv) to the extent such amounts are not
included in Consolidated EBITDA or any such payments of
principal in respect of any revolving credit facility
to the extent that there is not an equivalent reduction
in such facility), (iii) increases in working capital
(calculated as Consolidated Current Assets at the end
of such fiscal year minus Consolidated Current
Liabilities as at the end of such fiscal year) of the
Company and its Subsidiaries for such fiscal year
(excluding any increase in cash or Cash Equivalents
above an increase deemed in good faith by the Company
to be necessary or desirable for the operation of the
business of the Company and its Subsidiaries), (iv)
cash interest expense (including fees paid in
connection with letters of credit and surety bonds and
commitment fees and other periodic bank charges) of the
Company, (v) the amount of taxes actually paid in cash
by the Company and its Subsidiaries for such fiscal
year either during such fiscal year or within a normal
payment period thereof, (vi) to the extent added to
Consolidated Net Income of the Company and its
Subsidiaries in calculating Consolidated EBITDA for
such fiscal year, the net cost of Interest Rate
Agreements, franchise taxes and management fees, (vii)
the net income of any Subsidiary shall be excluded to
the extent that such amount is accounted for under the
equity method to the extent cash dividends are not paid
or the declaration or payment of dividends is not
permitted without prior governmental approval (which
has not been obtained), (viii) the amount of cash
actually paid by the Company in connection with clauses
(b) (without duplication) (g), (h), (i), (j), (m), (n),
(o), (p) and clauses (iii) and (iv) of the proviso in
the definition of Consolidated EBITDA and (ix) the
amount of any cash actually paid in connection with
reserves established in accordance with GAAP; provided
that to the extent any amount of cash is actually paid
by the Company in connection with clause (p) in the
definition of Consolidated EBITDA in any fiscal year in
which the Company does not have Excess Cash Flow, such
amount, to the extent it was not applied to reduce
Consolidated EBITDA in determining the existence of
Excess Cash Flow in the year such amount was paid, may
be carried forward to subsequent fiscal years of the
Company and applied once to reduce the amount of any
Excess Cash Flow for any such fiscal years.
"Existing Credit Agreement": the Amended and
Restated Credit Agreement dated as of June 30, 1995, as
amended to date, among the Company, the financial
institutions listed on the signature pages therein and
each other financial institution which from time to
time becomes a party thereto in accordance with the
terms thereof, Chase, as administrative agent and
Citicorp North America, Inc., as collateral agent.
"Existing Shareholders": as defined in the
Recitals hereto.
"Fee Property": as defined in subsection 5.13.
"Financing Lease": (a) any lease of property,
real or personal, the obligations under which are
capitalized on a consolidated balance sheet of the
Company and its consolidated Subsidiaries and (b) any
other such lease to the extent that the then present
value of any rental commitment thereunder should, in
accordance with GAAP, be capitalized on a balance sheet
of the lessee.
"Foreign Subsidiary": any Subsidiary which is not
organized under the laws of the United States or any
state thereof or the District of Columbia.
"Form S-4": the Registration Statement on Form S-
4 dated May 21, 1997 filed by the Company with the
Securities and Exchange Commission in connection with
the Merger.
"GAAP": generally accepted accounting principles
in the United States in effect from time to time.
"Governmental Authority": any nation or
government, any state or other political subdivision
thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantees": the collective reference to the
Subsidiary Guarantee and any guarantee which may from
time to time be executed and delivered by a Subsidiary
pursuant to subsection 7.9.
"Hazardous Materials": any hazardous materials,
hazardous wastes, hazardous pesticides or hazardous or
toxic substances, and any other material that may give
rise to liability under any Environmental Law,
including, without limitation, asbestos, petroleum, any
other petroleum products (including gasoline, crude oil
or any fraction thereof), polychlorinated biphenyls and
urea-formaldehyde insulation.
"Indebtedness": of a Person, at a particular
date, (a) all indebtedness of such Person for borrowed
money or for the deferred purchase price of property or
services, (b) the undrawn face amount of all letters of
credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder and
unpaid reimbursement obligations with respect thereto,
(c) all liabilities (other than Lease Obligations and
liabilities in connection with reserves established in
accordance with GAAP) secured by any Lien on any
property owned by such Person, even though such Person
has not assumed or become liable for the payment
thereof, (d) Financing Leases, (e) indebtedness
incurred in connection with any Receivables Facility
and (f) all indebtedness of such Person arising under
acceptance facilities, but excluding (i) trade and
other accounts payable and accrued expenses payable in
the ordinary course of business which are not overdue
for a period of more than 90 days or, if overdue for
more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been
established on the books of such Person and (ii)
letters of credit supporting the purchase of goods in
the ordinary course of business and expiring no more
than six months from the date of issuance; provided
that obligations in respect of Interest Rate Agreements
shall not be included in this definition.
"Insolvency": with respect to any Multiemployer
Plan, the condition that such Plan is insolvent within
the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of
Insolvency.
"Installment Payment Date": as defined in
subsection 4.4(c).
"Interest Coverage Ratio": on the last day of any
fiscal quarter of the Company, the ratio of (a)
Consolidated EBITDA for the period of four fiscal
quarters ending on such day (or, if shorter, the period
commencing on the first day of the first fiscal quarter
commencing on or after the Closing Date and ending on
such day); provided that for purposes of calculating
the Interest Coverage Ratio interest expense in respect
of a Receivables Facility shall not be added to
Consolidated Net Income to determine Consolidated
EBITDA to (b) cash interest expense (excluding (i) fees
payable on account of letters of credit, (ii) to the
extent included in interest expense in accordance with
GAAP, net costs associated with Interest Rate
Agreements to which the Company is party in respect of
the Loans and other periodic bank charges and
amortization of debt discount (including discount of
liabilities and reserves established under APB 16) and
(iii) interest expense in respect of a Receivables
Facility, costs of debt issuance and interest expense
on customer deposits)) for such period net of interest
income, in each case, for or during such period on a
consolidated basis for the Company and its
Subsidiaries; and provided, further, that on (A) the
last day of the 1997 fourth fiscal quarter of the
Company such ratio shall measure the period of two
fiscal quarters ending on such day and (B) on the last
day of the 1998 first fiscal quarter of the Company
such ratio shall measure the period of three fiscal
quarters ending on such day.
"Interest Payment Date": (a) as to Alternate Base
Rate Loans, the last day of each March, June, September
and December, commencing on the first such day to occur
after any Alternate Base Rate Loans are made or any
Eurodollar Loans are converted to Alternate Base Rate
Loans, (b) as to any Eurodollar Loan in respect of
which the Company has selected an Interest Period of
one, two or three months, the last day of such Interest
Period and (c) as to any Eurodollar Loan in respect of
which the Company has selected a longer Interest Period
than the periods described in clause (b), the last day
of each three calendar month interval during such
Interest Period and, in addition, the last day of such
Interest Period.
"Interest Period": with respect to any Eurodollar
Loan:
(a) initially, the period commencing
on, as the case may be, the Borrowing Date or
conversion date with respect to such Eurodollar
Loan and ending one, two, three or six months
thereafter (or, if and when available to all the
relevant Lenders, nine or twelve months
thereafter) as selected by the Company in its
notice of borrowing as provided in subsection 4.1
or its notice of conversion as provided in
subsection 4.2; and
(b) thereafter, each period commencing
on the last day of the next preceding Interest
Period applicable to such Eurodollar Loan and
ending one, two, three or six months thereafter
(or, if and when available to all the relevant
Lenders, nine or twelve months thereafter) as
selected by the Company by irrevocable notice to
the Administrative Agent not less than three
Business Days prior to the last day of the then
current Interest Period with respect to such
Eurodollar Loan;
provided that the foregoing provisions relating to
Interest Periods are subject to the following:
(A) if any Interest Period would
otherwise end on a day which is not a Business
Day, that Interest Period shall be extended to the
next succeeding Business Day, unless the result of
such extension would be to carry such Interest
Period into another calendar month, in which event
such Interest Period shall end on the immediately
preceding Business Day;
(B) any Interest Period that would
otherwise extend beyond (i) in the case of an
Interest Period for a Term Loan, the final
Installment Payment Date shall end on such
Installment Payment Date or, if such Installment
Payment Date shall not be a Business Day, on the
next preceding Business Day; and (ii) in the case
of any Interest Period for a Revolving Credit
Loan, the Revolving Credit Termination Date shall
end on the Revolving Credit Termination Date, or
if the Revolving Credit Termination Date shall not
be a Business Day, on the next preceding Business
Day;
(C) if the Company shall fail to give
notice as provided above in clause (b), it shall
be deemed to have selected a conversion of a
Eurodollar Loan into an Alternate Base Rate Loan
(which conversion shall occur automatically and
without need for compliance with the conditions
for conversion set forth in subsection 4.2);
(D) any Interest Period that begins on
the last day of a calendar month (or on a day for
which there is no numerically corresponding day in
the calendar month at the end of such Interest
Period) shall end on the last Business Day of a
calendar month; and
(E) the Company shall select Interest
Periods so as not to require a prepayment (to the
extent practicable) or a scheduled payment of a
Eurodollar Loan during an Interest Period for such
Eurodollar Loan.
"Interest Rate Agreement": any interest rate swap
agreement, interest rate cap agreement, interest rate
collar agreement or other similar agreement or
arrangement.
"Investcorp": Investcorp S.A., a Luxembourg
corporation.
"Investment Grade Securities": (i) securities
issued or directly and fully guaranteed or insured by
the United States government or any agency or
instrumentality thereof (other than Cash Equivalents),
(ii) debt securities or debt instruments with a rating
of BBB- or higher by S&P or Baa3 by Moody's or the
equivalent of such rating by such rating organization,
or if no rating of S&P's or Moody's then exists, the
equivalent of such rating by any other nationally
recognized securities rating agency, but excluding any
debt securities or instruments constituting loans or
advances among the Company and its Subsidiaries and
(iii) investments in any fund that invests exclusively
in investments of the type described in clauses (i) and
(ii) which fund may also hold immaterial amounts of
cash pending investment and/or distribution.
"Investors": as defined in the Recitals hereto.
"IPO": any sale by the Company through a public
offering of its common (or other voting) stock pursuant
to an effective registration statement (other than a
registration statement on Form S-4, S-8 or any
successor or similar form) filed under the Securities
Act of 1933, as amended.
"Issuing Lenders": Chase and any of its
Affiliates, including Chase Manhattan Bank Delaware, as
issuer of the Letters of Credit; with respect to any
Letter of Credit, the term "Issuing Lender" shall mean
the Issuing Lender with respect to such Letter of
Credit.
"L/C Application": as defined in subsection
3.5(a).
"L/C Obligations": the obligations of the Company
to reimburse the Issuing Lender for any payments made
by the Issuing Lender under any Letter of Credit that
have not been reimbursed by the Company pursuant to
subsection 3.8(a).
"L/C Participating Interest": an undivided
participating interest in the face amount of each
issued and outstanding Letter of Credit and the L/C
Application relating thereto.
"L/C Participation Certificate": a certificate in
substantially the form of Exhibit I.
"Lease Obligations": of the Company and its
Subsidiaries, as of the date of any determination
thereof, the rental commitments of the Company and its
Subsidiaries determined on a consolidated basis, if
any, under leases for real and/or personal property
(net of rental commitments from sub-leases thereof),
excluding however, obligations under Financing Leases.
"Leased Properties": as defined in subsection
5.13.
"Letters of Credit": the collective reference to
the Commercial L/Cs and the Standby L/Cs; individually,
a "Letter of Credit".
"Leverage Ratio": as defined in subsection 8.9;
provided that for purposes of calculating the Leverage
Ratio on any date, the unencumbered (other than Liens
permitted pursuant to subsection 8.2(f)) cash and Cash
Equivalent balances of the Company and its Subsidiaries
on such date shall be deducted from the amount of
Consolidated Funded Indebtedness on such date.
"Lien": any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority or other
security agreement or preferential arrangement of any
kind or nature whatsoever (including, without
limitation, any conditional sale or other title
retention agreement, any financing lease having
substantially the same economic effect as any of the
foregoing, and the filing of any financing statement
under the Uniform Commercial Code or comparable law of
any jurisdiction in respect of any of the foregoing,
except for the filing of financing statements in
connection with Lease Obligations incurred by the
Company or its Subsidiaries to the extent that such
financing statements relate to the property subject to
such Lease Obligations).
"Loans": the collective reference to the Swing
Line Loans, the Term Loans and the Revolving Credit
Loans; individually, a "Loan".
"Merger": as defined in the Recitals hereto.
"Merger Agreement": as defined in the Recitals
hereto.
"Moody's": Moody's Investors Service, Inc.
"Mortgaged Properties": (a) the Real Property
designated as "Mortgaged Property" on Schedule 5.13 and
(b) any fee Real Property covered by a Mortgage
delivered pursuant to subsection 7.9(e).
"Mortgages": as defined in subsection 7.9(d).
"Multiemployer Plan": a Plan which is a
multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
"Net Proceeds": the aggregate cash proceeds
received by the Company or any Subsidiary in respect
of:
(a)(i) any issuance or borrowing of any
debt securities or loans by the Company or
any Subsidiary other than debt or loans
permitted to be incurred or borrowed pursuant
to subsection 8.1 or (ii) any issuance of
Capital Stock (excluding any such issuance to
any Investor or any Affiliate thereof);
(b) any Asset Sale, excluding (i) any
net proceeds received upon any condemnation
or exercise of rights of eminent domain to
the extent the same shall be deemed not to
constitute Net Proceeds pursuant to the
proviso to subsection 8.5(d) and (ii) any
proceeds of insurance received upon any
casualty or loss;
(c) any cash received in respect of
substantially like-kind exchanges of property
to the extent provided in the proviso to
subsection 8.5(e); and
(d) any cash payments received in
respect of promissory notes delivered to the
Company or such Subsidiary in respect of an
Asset Sale;
in each case net of (without duplication) (A) the
amount required to repay any Indebtedness (other than
the Loans) secured by a Lien on any assets of the
Company or a Subsidiary that are collateral for any
such debt securities or loans that are sold or
otherwise disposed of in connection with such Asset
Sale, (B) the reasonable expenses (including legal fees
and brokers' and underwriters' commissions, lenders
fees or credit enhancement fees, in any case, paid to
third parties or, to the extent permitted hereby,
Affiliates) incurred in effecting such issuance or sale
and (C) any taxes reasonably attributable to such sale
and reasonably estimated by the Company or such
Subsidiary to be actually payable.
"Non-Funding Lender": as defined in subsection
4.9(c).
"Notes": the collective reference to the Swing
Line Note, the Revolving Credit Notes and the Term Loan
Notes; each of the Notes, a "Note".
"Offering Memorandum": the offering memorandum
dated June 6, 1997 with respect to the Senior Discount
Notes and Senior Subordinated Notes.
"Participants": as defined in subsection 11.6(b).
"Participating Lender": any Lender (other than
the Issuing Lender) with respect to its L/C
Participating Interest in each Letter of Credit.
"Payment Sharing Notice": a written notice from
the Company or any Lender informing the Administrative
Agent that an Event of Default has occurred and is
continuing and directing the Administrative Agent to
allocate payments thereafter received from or on behalf
of the Company in accordance with the provisions of
subsection 4.9.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA
or any successor.
"Permanent Subordinated Debt": (i) unsecured
notes or debentures of the Company, subordinated to the
prior payment of the Loans and the other obligations
under the Credit Documents, that may be issued by the
Company on or after the Closing Date, provided that
either (x) such notes or debentures have terms which
are as favorable to the Lenders as the terms set forth
in the Offering Memorandum and the conditions contained
in clauses (i)(y)(c) and (d) of this definition are met
or (y)(a) unless otherwise agreed to by the
Supermajority Lenders, no part of the principal amount
of any such notes or debentures shall have a scheduled
maturity date earlier than June 30, 2006, (b) unless
otherwise agreed to by the Required Lenders, (I) the
subordination provisions of which are as favorable to
the Lenders as such provisions set forth in the
Offering Memorandum, (II) the terms and conditions
thereof (including, without limitation, subordination,
covenant and events of default provisions thereof but
excluding any call protection provisions) taken as a
whole shall be at least as favorable to the Company and
the Lenders as such terms and conditions set forth in
the Bridge Commitment Letter (or in the Bridge Loan
Agreement if entered into by the parties thereto), and
(III) and the non-default cash interest rate thereon
shall not exceed 15% per annum and the total non-
default interest rate shall not exceed 17% per annum,
(c) no covenant contained in this Agreement or any of
the other Credit Documents would be violated on the
proposed issuance date after giving effect to (I) the
issuance of such notes or debentures, (II) the payment
of all issuance costs, commissions, discounts,
redemption premiums and other fees and charges
associated therewith, (III) the use of proceeds thereof
and (IV) the redemption, repayment, retirement and
repurchase of all Indebtedness of the Company and its
Subsidiaries to be redeemed, repaid or repurchased in
connection therewith and (d) substantially final drafts
of the documentation governing any such notes or
debentures, showing the terms thereof, shall have been
furnished to the Administrative Agent at least 5 days
prior to the date of issuance of such notes or
debentures and (ii) unsecured notes or debentures of
the Company, subordinated to the prior payment of the
Loans and the other obligations under the Credit
Documents, that may be issued by the Company to
refinance previously issued Permanent Subordinated
Debt, provided that (a) unless otherwise agreed to by
the Required Lenders, (I) no part of the principal
amount of any such notes or debentures shall have a
scheduled amortization date earlier then June 30, 2006
and (II) the interest rate and subordination provisions
shall be at least as favorable to the Company and the
Lenders as such provisions of refinanced Permanent
Subordinated Debt and the other terms and conditions
thereof (including, without limitation, the covenant
and event of default provisions thereof) taken as a
whole shall be at least as favorable to the Company and
the Lenders as such refinanced Permanent Subordinated
Debt and (b) the conditions contained in clauses
(i)(y)(c) and (d) of this definition shall be met.
"Permitted Liens": Liens permitted to exist under
subsection 8.2.
"Person": an individual, partnership,
corporation, business trust, joint stock company,
limited liability company, trust, unincorporated
association, joint venture, Governmental Authority or
other entity of whatever nature.
"Plan": at a particular time, any employee
benefit plan which is covered by ERISA and in respect
of which the Company or a Commonly Controlled Entity is
(or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of ERISA.
"Pledge Agreements": the collective reference to
the Company Pledge Agreement and any pledge agreement
from time to time executed and delivered by the Company
or any Subsidiary providing for the pledge of the
Capital Stock of any Subsidiary pursuant to subsection
7.9.
"Real Property": each Fee Property and Leased
Property listed on Schedule 5.13.
"Receivables Facility": one or more non-recourse
receivables facilities providing for the sale,
encumbrance or other disposition, at any time or from
time to time, of all or a portion of the accounts
receivable of the Company or any of its Subsidiaries,
whether existing on the date of this Agreement or
hereafter arising.
"Receivables Facility Assets": accounts
receivable and related ancillary rights, including,
without limitation, any security interests or
guarantees securing the payment of such receivables, of
the Company or any of its Subsidiaries, whether
existing on the date hereof or hereafter arising, that
are sold, encumbered or disposed of at any time or from
time to time in connection with a Receivables Facility.
"Receivables SPV": a special purpose company
established by the Company or any of its Subsidiaries
and so existing solely for purposes of a Receivables
Facility.
"Refunded Swing Line Loans": as defined in
subsection 3.4(b).
"Register": as defined in subsection 11.6(d).
"Related Document": any agreement, certificate,
document or instrument relating to a Letter of Credit.
"Reorganization": with respect to any
Multiemployer Plan, the condition that such Plan is in
reorganization as such term is used in Section 4241 of
ERISA.
"Reportable Event": any of the events set forth
in Section 4043(c) of ERISA, other than those events as
to which the thirty day notice is waived under subpart
B of PBGC Reg. Section 4042.
"Required Lenders": at a particular time, the
holders of at least 51% of the sum of (i) the aggregate
unpaid principal amount of the Term Loans, if any, and
(ii) the Revolving Credit Commitments or, if the
Revolving Credit Commitments are terminated, the
aggregate unpaid principal amount of the Revolving
Credit Loans, and participations in Swing Line Loans
and the aggregate amount available to be drawn at such
time under all outstanding Letters of Credit and L/C
Obligations. The Term Loans and the Revolving Credit
Commitments of any Non-Funding Lender shall be
disregarded in determining Required Lenders at any
time.
"Requirement of Law": as to any Person, the
Articles or Certificate of Incorporation and By-Laws or
other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, order,
or determination of an arbitrator or a court or other
Governmental Authority, in each case, applicable to or
binding upon such Person or any of its property or to
which such Person or any of its property is subject.
"Responsible Officer": with respect to any
Person, the president, chief executive officer, the
chief operating officer, the chief financial officer,
treasurer, controller or any vice president of such
Person.
"Revolving Credit Commitment": as to any Lender,
its obligations to make Revolving Credit Loans to the
Company pursuant to subsection 3.1 and to purchase its
L/C Participating Interest in any Letter of Credit, in
an aggregate amount not to exceed the amount set forth
under such Lender's name in Schedule I opposite the
caption "Revolving Credit Commitment" or in Schedule 1
to the Assignment and Acceptance by which such Lender
acquired its Revolving Credit Commitment, as the same
may be reduced from time to time pursuant to subsection
4.3 or 4.4(b) or adjusted pursuant to subsection
11.6(c); collectively, as to all the Lenders, the
"Revolving Credit Commitments".
"Revolving Credit Commitment Percentage": as to
any Lender at any time, the percentage of the aggregate
Revolving Credit Commitments then constituted by such
Lender's Revolving Credit Commitment.
"Revolving Credit Commitment Period": the period
from and including the Closing Date to but not
including the Revolving Credit Termination Date.
"Revolving Credit Lender": any Lender with a
Revolving Credit Commitment.
"Revolving Credit Loan" and "Revolving Credit
Loans": as defined in subsection 3.1(a).
"Revolving Credit Note": as defined in subsection
4.13(e).
"Revolving Credit Termination Date": the earlier
of (a) June 30, 2003 and (b) such other earlier date as
the Revolving Credit Commitments shall terminate
hereunder.
"Security Agreements": the collective reference
to the Company Security Agreement, the Subsidiary
Security Agreement and any security agreement which may
from time to time be executed and delivered by a
Subsidiary of the Company pursuant to subsection 7.9.
"Security Documents": the collective reference to
the Pledge Agreements, the Security Agreements and the
Mortgages.
"Senior Discount Notes": the senior subordinated
discount notes (or any refinancing thereof permitted
hereunder) which shall be: (a) issued under the
Indenture, dated as of even date herewith between the
Company and Harris Trust and Savings Bank, as Trustee;
(b) not mandatorily redeemable or mandatorily
purchasable (except upon the occurrence of a change of
control and assets sales (as defined therein) at a
purchase price not in excess of the principal amount
thereof plus redemption premium, if any, plus accrued
and unpaid interest plus liquidated damages, if any) or
have any amortization or maturity prior to June 30,
2006; and (c) shall have material terms and conditions
as described in the Offering Memorandum.
"Senior Subordinated Notes": the senior
subordinated notes (or any refinancing thereof
permitted hereunder) which shall be: (a) issued under
the Indenture, dated as of even date herewith between
the Company and Harris Trust and Savings Bank, as
Trustee; (b) not mandatorily redeemable or mandatorily
purchasable (except upon the occurrence of a change of
control and assets sales (as defined therein) at a
purchase price not in excess of the principal amount
thereof plus redemption premium, if any, plus accrued
and unpaid interest plus liquidated damages, if any) or
have any amortization or maturity prior to June 30,
2006; and (c) shall have material terms and conditions
as described in the Offering Memorandum.
"Single Employer Plan": any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer
Plan.
"S&P": Standard and Poor's Ratings Services, a
division of McGraw-Hill Companies, Inc.
"Standby L/C": an irrevocable letter of credit
under which the Issuing Lender agrees to make payments
in Dollars for the account of the Company, on behalf of
the Company or any Subsidiary in respect of obligations
of the Company or such Subsidiary incurred pursuant to
contracts made or performances undertaken or to be
undertaken or like matters relating to contracts to
which the Company or such Subsidiary is or proposes to
become a party in the ordinary course of the Company's
or such Subsidiary's business, including, without
limiting the foregoing, for insurance purposes or in
respect of advance payments or as bid or performance
bonds or for any other purpose for which a standby
letter of credit might customarily be issued.
"Subordinated Debt": collectively, the Bridge
Subordinated Debt and the Permanent Subordinated Debt.
"Subsection 4.11(d)(2) Certificate": as defined
in subsection 4.11(d).
"Subsidiary": as to any Person, a corporation,
partnership, limited liability company or other entity
of which shares of stock of each class or other
interests having ordinary voting power (other than
stock or other interests having such power only by
reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of
such corporation, partnership or other entity are at
the time owned, or the management of which is otherwise
controlled, by such Person or by one or more
Subsidiaries of such Person or by such Person and one
or more Subsidiaries of such Person. A Subsidiary
shall be deemed wholly-owned by a Person who owns
directly or indirectly all of the voting shares of
stock or other interests of such Subsidiary having
voting power under ordinary circumstances to vote for
directors or other managers of such corporation,
partnership or other entity, except for directors'
qualifying shares. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Subsidiary Guarantee": the Subsidiary Guarantee,
substantially in the form of Exhibit F, to be made by
certain Domestic Subsidiaries of the Company (other
than any Receivable SPV) in favor of the Administrative
Agent for the ratable benefit of the Lenders, as the
same may be amended, modified or supplemented from time
to time.
"Subsidiary Pledge Agreement": the Subsidiary
Pledge Agreement, substantially in the form of Exhibit
G-2, to be made by certain Domestic Subsidiaries of the
Company (other than any Receivable SPV) in favor of the
Administrative Agent for the ratable benefit of the
Lenders, as the same may be amended, modified or
supplemented from time to time.
"Subsidiary Security Agreement": the Subsidiary
Security Agreement, substantially in the form of
Exhibit E-2, to be made by certain Domestic
Subsidiaries of the Company (other than any Receivables
SPV) in favor of the Administrative Agent for the
ratable benefit of the Lenders, as the same may be
amended, modified or supplemented from time to time.
"Supermajority Lenders": at a particular time,
the holders of at least 66-2/3% of the sum of (i) the
aggregate unpaid principal amount of the Term Loans, if
any, and (ii) the Revolving Credit Commitments or, if
the Revolving Credit Commitments are terminated, the
aggregate unpaid principal amount of the Revolving
Credit Loans, and participations in Swing Line Loans
and the aggregate amount available to be drawn at such
time under all outstanding Letters of Credit and L/C
Obligations. The Term Loans and the Revolving Credit
Commitments of any Non-Funding Lender shall be
disregarded in determining Supermajority Lenders at any
time.
"Swing Line Commitment": the Swing Line Lender's
obligation to make Swing Line Loans pursuant to
subsection 3.4.
"Swing Line Lender": Chase in its capacity as
lender of the Swing Line Loans.
"Swing Line Loan Participation Certificate": a
certificate in substantially the form of Exhibit I.
"Swing Line Loans": as defined in subsection
3.4(a).
"Swing Line Note": as defined in subsection
4.13(e).
"Term Loan" and "Term Loans": as defined in
subsection 2.1.
"Term Loan Commitment": as to any Lender, its
obligation to make a Term Loan to the Company pursuant
to subsection 2.1 in an aggregate amount not to exceed
the amount set forth under such Lender's name in
Schedule I opposite the caption "Term Loan Commitment"
or in Schedule 1 to the Assignment and Acceptance
pursuant to which a Lender acquires its Term Loan
Commitment, as the same may be adjusted pursuant to
subsection 11.6(c); collectively, as to all the
Lenders, the "Term Loan Commitments".
"Term Loan Commitment Percentage": as to any
Lender at any time, the percentage of the aggregate
Term Loan Commitments then constituted by such Lender's
Term Loan Commitment.
"Term Loan Note": as defined in subsection
4.13(e).
"Transferee": as defined in subsection 11.6(f).
"Type": as to any Loan, its nature as an
Alternate Base Rate Loan or Eurodollar Loan.
"Uniform Customs": the Uniform Customs and
Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500,
and any amendments thereof.
"United States": the United States of America.
"1996 Form 10-K": the annual report on Form 10-K
of the Company filed with the Securities and Exchange
Commission on March 20, 1997.
1.2 Other Definitional Provisions. (a)
Unless otherwise specified therein, all terms defined
in this Agreement shall have the defined meanings when
used in the Notes, any other Credit Document or any
certificate or other document made or delivered
pursuant hereto.
(b) As used herein and in the Notes, any
other Credit Document and any certificate or other
document made or delivered pursuant hereto,
accounting terms relating to the Company and its
Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1
to the extent not defined, shall have the
respective meanings given to them under GAAP. To
the extent there are any changes in GAAP from the
date of this Agreement, the financial covenants
set forth herein at the option of the Company will
either (i) continue to be determined in accordance
with GAAP in effect on the Closing Date, as
applicable, or (ii) be adjusted or reset to
reflect such changes in GAAP, such adjustments or
resets to be mutually agreed to by the Company and
the Administrative Agent.
(c) The words "hereof", "herein" and
"hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of
this Agreement, and section, subsection, schedule
and exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined
herein shall be equally applicable to the singular
and plural forms of such terms.
SECTION 2. TERM LOANS
2.1 Term Loans. Subject to the terms and
conditions hereof, each Lender severally agrees to make
a loan in Dollars (individually, a "Term Loan"; and
collectively, the "Term Loans") to the Company on the
Closing Date, in an aggregate principal amount equal to
such Lender's Term Loan Commitment.
2.2 Repayment of Term Loans. The Company
shall repay the Term Loans as provided in subsection
4.4(c).
2.3 Use of Proceeds. The proceeds of the
Term Loans shall be used (a) to finance a portion of
the cash consideration payable in the Merger and other
payments pursuant to the Merger Agreement and to pay
fees, expenses and financing costs in connection
therewith, and (b) to refinance certain of the existing
Indebtedness of the Company and its Subsidiaries.
SECTION 3. AMOUNT AND TERMS OF REVOLVING
CREDIT COMMITMENTS
3.1 Revolving Credit Commitments. (a)
Subject to the terms and conditions hereof, each Lender
severally agrees to the extent of its Revolving Credit
Commitment to extend credit to the Company from time to
time on any Borrowing Date during the Revolving Credit
Commitment Period (i) by purchasing an L/C
Participating Interest in each Letter of Credit issued
by the Issuing Lender and (ii) by making loans in
Dollars (individually, such a Loan is a "Revolving
Credit Loan", and collectively such Loans are the
"Revolving Credit Loans") to the Company from time to
time. Notwithstanding the above, in no event shall any
Revolving Credit Loans be made, or Letter of Credit be
issued, if the aggregate amount of the Revolving Credit
Loans to be made or Letter of Credit to be issued
would, after giving effect to the use of proceeds, if
any, thereof, exceed the aggregate Available Revolving
Credit Commitments nor shall any Letter of Credit be
issued if after giving effect thereto the sum of the
undrawn amount of all outstanding Letters of Credit and
the amount of all L/C Obligations would exceed
$25,000,000. During the Revolving Credit Commitment
Period, the Company may use the Revolving Credit
Commitments by borrowing, prepaying the Revolving
Credit Loans in whole or in part, and reborrowing, all
in accordance with the terms and conditions hereof,
and/or by having the Issuing Lender issue Letters of
Credit, having such Letters of Credit expire undrawn
upon or if drawn upon, reimbursing the Issuing Lender
for such drawing, and having the Issuing Lender issue
new Letters of Credit.
(b) Each borrowing of Revolving Credit
Loans pursuant to the Revolving Credit Commitments
shall be in an aggregate principal amount of the
lesser of (i) $1,000,000 or a whole multiple of
$100,000 in excess thereof in the case of
Alternate Base Rate Loans, and $2,000,000 or a
whole multiple of $1,000,000 in excess thereof, in
the case of Eurodollar Loans and (ii) the
Available Revolving Credit Commitments, except
that any borrowing of Revolving Credit Loans to be
used solely to pay a like amount of Swing Line
Loans may be in the aggregate principal amount of
such Swing Line Loans.
3.2 Commitment Fee. The Company agrees to
pay to the Administrative Agent for the account of each
Lender (other than any Non-Funding Lender) a commitment
fee from and including the Closing Date to and
including the Revolving Credit Termination Date
computed at the applicable rate (on each Adjustment
Date pursuant to the guidelines set forth in the
definition of Applicable Margin) per annum set forth on
Schedule II on the average daily amount of the
Available Revolving Credit Commitment of such Lender
during the period for which payment is made (whether or
not the Company shall have satisfied the applicable
conditions to borrow or for the issuance of a Letter of
Credit set forth in Section 6); provided that from the
Closing Date until the first Adjustment Date the
commitment fee shall be 0.50% per annum. Such
commitment fee shall be payable quarterly in arrears on
the last day of each March, June, September and
December and on the Revolving Credit Termination Date,
commencing on the later of (x) the first such date to
occur on or following the Closing Date (or, if earlier,
the Revolving Credit Termination Date) or (y) September
30, 1997.
3.3 Proceeds of Revolving Credit Loans. The
Company shall use the proceeds of Revolving Credit
Loans (a) as set forth in subsection 2.3, (b) for
working capital purposes of the Company and its
Subsidiaries and (c) to finance acquisitions permitted
by subsection 8.6(g).
3.4 Swing Line Commitment. (a) Subject to
the terms and conditions hereof, the Swing Line Lender
agrees, so long as the Administrative Agent has not
received notice that an Event of Default has occurred
and is continuing, to make swing line loans
(individually, a "Swing Line Loan"; collectively, the
"Swing Line Loans") to the Company from time to time
during the Revolving Credit Commitment Period in an
aggregate principal amount at any one time outstanding
not to exceed $10,000,000, provided that no Swing Line
Loan may be made if the aggregate principal amount of
the Swing Line Loans to be made would exceed the
aggregate Available Revolving Credit Commitments at
such time. Amounts borrowed by the Company under this
subsection 3.4 may be repaid and, through but excluding
the Revolving Credit Termination Date, reborrowed. All
Swing Line Loans shall be made as Alternate Base Rate
Loans and shall not be entitled to be converted into
Eurodollar Loans. The Company shall give the Swing
Line Lender irrevocable notice (which notice must be
received by the Swing Line Lender prior to 3:00 p.m.,
New York City time) on the requested Borrowing Date
specifying the amount of each requested Swing Line
Loan, which shall be in an aggregate minimum amount of
$250,000 or a whole multiple of $100,000 in excess
thereof. The proceeds of each Swing Line Loan will be
made available by the Swing Line Lender to the Company
by crediting the account of the Company at the office
of the Swing Line Lender with such proceeds. The
proceeds of Swing Line Loans may be used solely for the
purposes referred to in subsection 3.3.
(b) The Swing Line Lender at any time in
its sole and absolute discretion may, and on the
fifteenth day (or if such day is not a Business
Day, the next Business Day) and last Business Day
of each month shall, on behalf of the Company
(which hereby irrevocably directs the Swing Line
Lender to act on its behalf) request each
Revolving Credit Lender, including the Swing Line
Lender, to make a Revolving Credit Loan in an
amount equal to such Lender's Revolving Credit
Commitment Percentage of the amount of the Swing
Line Loans (the "Refunded Swing Line Loans")
outstanding on the date such notice is given.
Unless any of the events described in paragraph
(f) of Section 9 shall have occurred (in which
event the procedures of paragraph (c) of this
subsection 3.4 shall apply) each such Lender shall
make the proceeds of its Revolving Credit Loan
available to the Swing Line Lender for the account
of the Swing Line Lender at the office of the
Swing Line Lender specified in subsection 11.2 (or
such other location as the Swing Line Lender may
direct) prior to 12:00 noon (New York City time)
in funds immediately available on the Business Day
next succeeding the date such notice is given.
The proceeds of such Revolving Credit Loans shall
be immediately applied to repay the Refunded Swing
Line Loans.
(c) If prior to the making of a
Revolving Credit Loan pursuant to paragraph (b) of
this subsection 3.4 one of the events described in
paragraph (f) of Section 9 shall have occurred,
each Revolving Credit Lender will, on the date
such Loan was to have been made, purchase an
undivided participating interest in the Refunded
Swing Line Loan in an amount equal to its
Revolving Credit Commitment Percentage of such
Refunded Swing Line Loan. Each such Lender will
immediately transfer to the Swing Line Lender in
immediately available funds, the amount of its
participation and upon receipt thereof the Swing
Line Lender will deliver to such Lender a Swing
Line Loan Participation Certificate dated the date
of receipt of such funds and in such amount.
(d) Whenever, at any time after the
Swing Line Lender has received from any Revolving
Credit Lender such Lender's participating interest
in a Refunded Swing Line Loan, the Swing Line
Lender receives any payment on account thereof,
the Swing Line Lender will distribute to such
Lender its participating interest in such amount
(appropriately adjusted, in the case of interest
payments, to reflect the period of time during
which such Lender's participating interest was
outstanding and funded) in like funds as received;
provided that in the event that such payment
received by the Swing Line Lender is required to
be returned, such Lender will return to the Swing
Line Lender any portion thereof previously
distributed by the Swing Line Lender to it in like
funds as such payment is required to be returned
by the Swing Line Lender.
(e) The obligation of each Revolving
Credit Lender to purchase participating interests
pursuant to subsection 3.4(c) shall be absolute
and unconditional and shall not be affected by any
circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or
other right which such Lender may have against the
Swing Line Lender, the Company or any other Person
for any reason whatsoever; (ii) the occurrence or
continuance of an Event of Default; (iii) any
adverse change in the condition (financial or
otherwise) of the Company; (iv) any breach of this
Agreement by the Company or any other Lender; or
(v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the
foregoing.
3.5 Issuance of Letters of Credit. (a) The
Company may from time to time request the Issuing
Lender to issue a Standby L/C or a Commercial L/C by
delivering to the Administrative Agent at its address
specified in subsection 11.2 a letter of credit
application in the Issuing Lender's then customary form
(the "L/C Application") completed to the satisfaction
of the Issuing Lender, together with the proposed form
of such Letter of Credit (which shall comply with the
applicable requirements of paragraph (b) below) and
such other certificates, documents and other papers and
information as the Issuing Lender may reasonably
request; provided that if the Issuing Lender informs
the Company that it is for any reason unable to open
such Letter of Credit, the Company may request any
Lender to open such Letter of Credit upon the same
terms offered to the Issuing Lender and each reference
to the Issuing Lender for purposes of subsections 3.5
through 3.14, 6.1 and 6.2 shall be deemed to be a
reference to such issuing Lender. The letters of
credit identified on Schedule 3.5 shall at all times on
and after the Closing Date be deemed to be a "Letter of
Credit" or "Letters of Credit" for all purposes of this
Agreement and the other Loan Documents.
(b) Each Standby L/C and Commercial L/C
issued hereunder shall, among other things, (i) be
in such form requested by the Company as shall be
acceptable to the Issuing Lender in its sole
discretion and (ii) have an expiry date occurring
not later than 365 days after the date of issuance
of such Letter of Credit and may be automatically
renewed on its expiry date for an additional
period equal to the initial term, but in no case
shall any Letter of Credit have an expiry date
occurring later than the Revolving Credit
Termination Date. Each L/C Application and each
Letter of Credit shall be subject to the Uniform
Customs and, to the extent not inconsistent
therewith, the laws of the State of New York.
3.6 Participating Interests. Effective in
the case of each Standby L/C and Commercial L/C (if
applicable) as of the date of the opening thereof, the
Issuing Lender agrees to allot and does allot, to
itself and each other Revolving Credit Lender, and each
such Lender severally and irrevocably agrees to take
and does take in such Letter of Credit and the related
L/C Application (if applicable), an L/C Participating
Interest in a percentage equal to such Lender's
Revolving Credit Commitment Percentage.
3.7 Procedure for Opening Letters of Credit.
The Issuing Lender will notify each Lender after the
end of each calendar month of any L/C Applications
received by the Issuing Lender from the Company during
such month. Upon receipt of any L/C Application from
the Company, the Issuing Lender will process such L/C
Application, and the other certificates, documents and
other papers delivered to the Issuing Lender in
connection therewith, in accordance with its customary
procedures and, subject to the terms and conditions
hereof, shall promptly open such Letter of Credit by
issuing the original of such Letter of Credit to the
beneficiary thereof and by furnishing a copy thereof to
the Company and, after the end of the calendar month in
which such Letter of Credit was opened, to the other
Lenders, provided that no such Letter of Credit shall
be issued if subsection 3.1 would be violated thereby.
3.8 Payments in Respect of Letters of
Credit. (a) The Company agrees forthwith upon demand
by the Issuing Lender and otherwise in accordance with
the terms of the L/C Application relating thereto, (i)
to reimburse the Issuing Lender for any payment made by
the Issuing Lender under any Letter of Credit issued
for the account of the Company and (ii) to pay interest
on any unreimbursed portion of any such payment from
the date of such payment until reimbursement in full
thereof at a rate per annum equal to (A) on or prior to
the date which is one Business Day after the day on
which the Issuing Lender demands reimbursement from the
Company for such payment, the Alternate Base Rate plus
the Applicable Margin for the Revolving Credit Loans
and (B) thereafter, the Alternate Base Rate plus the
Applicable Margin for the Revolving Credit Loans plus
2%.
(b) In the event that the Issuing Lender
makes a payment under any Letter of Credit and is
not reimbursed in full therefor forthwith upon
demand of the Issuing Lender, and otherwise in
accordance with the terms of the L/C Application
relating to such Letter of Credit, the Issuing
Lender will promptly notify each other Revolving
Credit Lender. Forthwith upon its receipt of any
such notice, each such other Lender will transfer
to the Issuing Lender, in immediately available
funds, an amount equal to such other Lender's pro
rata share (based on its Revolving Credit
Commitment) of the L/C Obligation arising from
such unreimbursed payment. Promptly, upon its
receipt from such other Lender of such amount, the
Issuing Lender will complete, execute and deliver
to such other Lender an L/C Participation
Certificate dated the date of such receipt and in
such amount.
(c) Whenever, at any time after the
Issuing Lender has made a payment under any Letter
of Credit and has received from any other
Revolving Credit Lender such other Lender's pro
rata share of the L/C Obligation arising
therefrom, the Issuing Lender receives any
reimbursement on account of such L/C Obligation or
any payment of interest on account thereof, the
Issuing Lender will promptly distribute to such
other Lender its pro rata share thereof in like
funds as received; provided that in the event that
the receipt by the Issuing Lender of such
reimbursement or such payment of interest (as the
case may be) is required to be returned, such
other Lender will return to the Issuing Lender any
portion thereof previously distributed by the
Issuing Lender to it in like funds as such
reimbursement or payment is required to be
returned by the Issuing Lender.
3.9 Letter of Credit Fees. (a) In lieu of
any letter of credit commissions and fees provided for
in any L/C Application relating to Standby or
Commercial L/Cs (other than standard issuance,
amendment and negotiation fees), the Company agrees to
pay the Administrative Agent, for the account of the
Issuing Lender and the Participating Lenders, with
respect to each Standby or Commercial L/C issued for
the account of the Company, a Standby or Commercial L/C
fee, as the case may be, equal to the Applicable Margin
for Revolving Credit Loans which are Eurodollar Loans
per annum (of which the Issuing Lender shall retain for
its own account, as the issuing bank and not on account
of its L/C Participating Interest therein, 1/4 of 1%
per annum) on the daily average amount available to be
drawn under each Standby L/C in the case of a Standby
L/C and on the maximum face amount of each Commercial
L/C in the case of a Commercial L/C, in either case,
payable, in arrears, on the last day of each fiscal
quarter of the Company. The Administrative Agent will
disburse any Standby or Commercial L/C fees received
pursuant to this subsection 3.9(a) to the respective
Lenders promptly following the receipt of any such fees
in the case of a Standby L/C and, in the case of a
Commercial L/C, following the end of the calendar month
in which such Commercial L/C fees were received.
Notwithstanding the foregoing, the Company agrees to
pay standard issuance, amendment and negotiation fees
to the Issuing Lender.
(b) For purposes of any payment of fees
required pursuant to this subsection 3.9, the
Administrative Agent agrees to provide to the
Company a statement of any such fees to be so
paid; provided that the failure by the
Administrative Agent to provide the Company with
any such invoice shall not relieve the Company of
its obligation to pay such fees.
3.10 Letter of Credit Reserves. (a) If any
Change in Law shall either (i) impose, modify, deem or
make applicable any reserve, special deposit,
assessment or similar requirement against letters of
credit issued by the Issuing Lender or (ii) impose on
the Issuing Lender any other condition regarding this
Agreement (with respect to Letters of Credit) or any
Letter of Credit, and the result of any event referred
to in clause (i) or (ii) above shall be to increase the
cost of the Issuing Lender of issuing or maintaining
any Letter of Credit (which increase in cost shall be
the result of the Issuing Lender's reasonable
allocation of the aggregate of such cost increases
resulting from such events), then, upon demand by the
Issuing Lender, the Company shall immediately pay to
the Issuing Lender, from time to time as specified by
the Issuing Lender, additional amounts which shall be
sufficient to compensate the Issuing Lender for such
increased cost, together with interest on each such
amount from the date demanded until payment in full
thereof at a rate per annum equal to the rate
applicable to Alternate Base Rate Loans pursuant to
subsection 4.5(b). The Company shall not be required
to make any payments to the Issuing Lender for any
additional amounts pursuant to this subsection 3.10(a)
unless the Issuing Lender has given written notice to
the Company of its intent to request such payments
prior to or within 60 days after the date on which the
Issuing Lender became entitled to claim such amounts.
A certificate, setting forth in reasonable detail the
calculation of the amounts involved, submitted by the
Issuing Lender to the Company concurrently with any
such demand by the Issuing Lender, shall be conclusive,
absent manifest error, as to the amount thereof.
(b) In the event that any Change in Law
with respect to the Issuing Lender shall, in the
opinion of the Issuing Lender, require that any
obligation under any Letter of Credit be treated
as an asset or otherwise be included for purposes
of calculating the appropriate amount of capital
to be maintained by the Issuing Lender or any
corporation controlling the Issuing Lender, and
such Change in Law shall have the effect of
reducing the rate of return on the Issuing
Lender's or such corporation's capital, as the
case may be, as a consequence of the Issuing
Lender's obligations under such Letter of Credit
to a level below that which the Issuing Lender or
such corporation, as the case may be, could have
achieved but for such Change in Law (taking into
account the Issuing Lender's or such corporation's
policies, as the case may be, with respect to
capital adequacy) by an amount deemed by the
Issuing Lender to be material, then from time to
time following notice by the Issuing Lender to the
Company of such Change in Law, within 15 days
after demand by the Issuing Lender, the Company
shall pay to the Issuing Lender such additional
amount or amounts as will compensate the Issuing
Lender or such corporation, as the case may be,
for such reduction. The Issuing Lender agrees
that, upon the occurrence of any event giving rise
to the operation of paragraph (a) or (b) of this
subsection 3.10 with respect to the Issuing
Lender, it will, if requested by the Company and
to the extent permitted by law or by the relevant
Governmental Authority, endeavor in good faith to
avoid or minimize the increase in costs or
reduction in payments resulting from such event;
provided that such avoidance or minimization can
be made in such a manner that the Issuing Lender,
in its sole determination, suffers no economic,
legal or regulatory disadvantage. The Company
shall not be required to make any payments to the
Issuing Lender for any additional amounts pursuant
to this subsection 3.10(b) unless the Issuing
Lender has given written notice to the Company of
its intent to request such payments prior to or
within 60 days after the date on which the Issuing
Lender became entitled to claim such amounts. A
certificate, in reasonable detail setting forth
the calculation of the amounts involved, submitted
by the Issuing Lender to the Company concurrently
with any such demand by the Issuing Lender, shall
be conclusive, absent manifest error, as to the
amount thereof.
(c) The Company and each Participating
Lender agree that the provisions of the foregoing
paragraphs (a) and (b) shall apply equally to each
Participating Lender in respect of its L/C
Participating Interest in such Letter of Credit,
as if the references in such paragraphs and
provisions referred to, where applicable, such
Participating Lender or, in the case of paragraph
(b), any corporation controlling such
Participating Lender.
3.11 Further Assurances. The Company hereby
agrees, from time to time, to do and perform any and
all acts and to execute any and all further instruments
reasonably requested by the Issuing Lender more fully
to effect the purposes of this Agreement and the
issuance of Letters of Credit hereunder.
3.12 Obligations Absolute. The payment
obligations of the Company under this Agreement with
respect to the Letters of Credit shall be unconditional
and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all
circumstances, including, without limitation, the
following circumstances:
(i) the existence of any claim, set-off,
defense or other right which the Company or any of
its Subsidiaries may have at any time against any
beneficiary, or any transferee, of any Letter of
Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting),
the Issuing Lender, the Administrative Agent or
any Lender, or any other Person, whether in
connection with this Agreement, any Credit
Document, the transactions contemplated herein, or
any unrelated transaction;
(ii) any statement or any other document
presented under any Letter of Credit proving to be
forged, fraudulent or invalid or any statement
therein being untrue or inaccurate in any respect;
(iii) payment by the Issuing Lender
under any Letter of Credit against presentation of
a draft or certificate or other document which
does not comply with the terms of such Letter of
Credit or is insufficient in any respect, except
where such payment constitutes gross negligence or
willful misconduct on the part of the Issuing
Lender; or
(iv) any other circumstances or
happening whatsoever, whether or not similar to
any of the foregoing, except for any such
circumstances or happening constituting gross
negligence or willful misconduct on the part of
the Issuing Lender.
3.13 Assignments. No Participating Lender's
participation in any Letter of Credit or any of its
rights or duties hereunder shall be subdivided,
assigned or transferred (other than in connection with
a transfer of part or all of such Participating
Lender's Revolving Credit Commitment in accordance with
subsection 11.6(c)) without the prior written consent
of the Issuing Lender, which consent will not be
unreasonably withheld. Such consent may be given or
withheld without the consent or agreement of any other
Participating Lender. Notwithstanding the foregoing, a
Participating Lender may subparticipate its L/C
Participating Interest without obtaining the prior
written consent of the Issuing Lender.
3.14 Participations. The obligation of each
Revolving Credit Lender to purchase participating
interests pursuant to subsection 3.6 shall be absolute
and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any
set-off, counterclaim, recoupment, defense or other
right which such Lender may have against the Issuing
Lender, the Company or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of an
Event of Default; (iii) any adverse change in the
condition (financial or otherwise) of the Company; (iv)
any breach of this Agreement by the Company or any
other Lender; or (v) any other circumstance, happening
or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS
4.1 Procedure for Borrowing. (a) The
Company may borrow under the Commitments on any
Business Day, provided that, with respect to any
borrowing, the Company shall give the Administrative
Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 12:00 noon (or,
with respect to Swing Line Loans, 3:00 p.m.), New York
City time, (i) three Business Days prior to the
requested Borrowing Date if all or any part of the
Loans are to be Eurodollar Loans and (ii) one Business
Day prior to the requested Borrowing Date (or, in the
case of Swing Line Loans and, if the Closing Date
occurs on the date this Agreement is executed and
delivered, Loans made on the Closing Date, on the
requested Borrowing Date) if the borrowing is to be
solely of Alternate Base Rate Loans) and specifying (A)
the amount of the borrowing, (B) whether such Loans are
initially to be Eurodollar Loans or Alternate Base Rate
Loans or a combination thereof, (C) if the borrowing is
to be entirely or partly Eurodollar Loans, the length
of the Interest Period for such Eurodollar Loans and
(D) whether the Loan is a Term Loan, a Swing Line Loan
or a Revolving Credit Loan. Upon receipt of such
notice the Administrative Agent shall promptly notify
each Lender. Not later than 12:00 noon, New York City
time, on the Borrowing Date specified in such notice,
each Lender shall make available to the Administrative
Agent at the office of the Administrative Agent
specified in subsection 11.2 (or at such other location
as the Administrative Agent may direct) an amount in
immediately available funds equal to the amount of the
Loan to be made by such Lender (except that proceeds of
Swing Line Loans will be made available to the Company
in accordance with subsection 3.4(a)). Loan proceeds
received by the Administrative Agent hereunder shall
promptly be made available to the Company by the
Administrative Agent's crediting the account of the
Company, at the office of the Administrative Agent
specified in subsection 11.2, with the aggregate amount
actually received by the Administrative Agent from the
Lenders and in like funds as received by the
Administrative Agent.
(b) Any borrowing of Eurodollar Loans
hereunder shall be in such amounts and be made
pursuant to such elections so that, after giving
effect thereto, (i) the aggregate principal amount
of all Eurodollar Loans having the same Interest
Period shall not be less than $2,000,000 or a
whole multiple of $1,000,000 in excess thereof and
(ii) no more than sixteen Interest Periods shall
be in effect at any one time.
4.2 Conversion and Continuation Options.
(a) Subject to subsection 4.12, the Company may elect
from time to time to convert Eurodollar Loans into
Alternate Base Rate Loans by giving the Administrative
Agent irrevocable notice of such election, to be
received by the Administrative Agent prior to 12:00
noon, New York City time, at least three Business Days
prior to the proposed conversion date. The Company may
elect from time to time to convert all or a portion of
the Alternate Base Rate Loans (other than Swing Line
Loans) then outstanding to Eurodollar Loans by giving
the Administrative Agent irrevocable notice of such
election, to be received by the Administrative Agent
prior to 12:00 noon, New York City time, at least three
Business Days prior to the proposed conversion date,
specifying the Interest Period selected therefor, and,
if no Default or Event of Default has occurred and is
continuing, such conversion shall be made on the
requested conversion date or, if such requested
conversion date is not a Business Day, on the next
succeeding Business Day. Upon receipt of any notice
pursuant to this subsection 4.2, the Administrative
Agent shall promptly notify each Lender thereof. All
or any part of the outstanding Loans (other than Swing
Line Loans) may be converted as provided herein,
provided that partial conversions of Alternate Base
Loans shall be in the aggregate principal amount of
$1,000,000 or a whole multiple of $100,000 in excess
thereof and the aggregate principal amount of the
resulting Eurodollar Loans outstanding in respect of
any one Interest Period shall be at least $2,000,000 or
a whole multiple of $1,000,000 in excess thereof.
(b) Any Eurodollar Loans may be
continued as such upon the expiration of the then
current Interest Period with respect thereto by
the Company giving notice to the Administrative
Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth
in subsection 1.1, of the length of the next
Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued
as such (i) when any Event of Default has occurred
and is continuing and the Administrative Agent or
the Required Lenders have, by written notice to
the Company, determined that such a continuation
is not appropriate, (ii) if, after giving effect
thereto, subsection 4.1(b) would be contravened or
(iii) after the date that is one month prior to
the Revolving Credit Termination Date (in the case
of continuations of Revolving Credit Loans) or the
final Installment Payment Date of the Term Loans.
4.3 Changes of Commitment Amounts. (a) The
Company shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to
terminate or from time to time to permanently reduce
the Revolving Credit Commitments, subject to the
provisions of this subsection 4.3. To the extent, if
any, that the sum of the amount of the Revolving Credit
Loans, Swing Line Loans and L/C Obligations then
outstanding and the amounts available to be drawn under
outstanding Letters of Credit exceeds the amount of the
Revolving Credit Commitments as then reduced, the
Company shall be required to make a prepayment equal to
such excess amount, the proceeds of which shall be
applied, first, to payment of the Swing Line Loans then
outstanding, second, to payment of the Revolving Credit
Loans then outstanding, third, to payment of any L/C
Obligations then outstanding, and fourth, to cash
collateralize any outstanding Letters of Credit on
terms reasonably satisfactory to the Administrative
Agent. Any such termination of the Revolving Credit
Commitments shall be accompanied by prepayment in full
of the Revolving Credit Loans, Swing Line Loans and L/C
Obligations then outstanding and by cash
collateralization of any outstanding Letters of Credit
on terms reasonably satisfactory to the Administrative
Agent. Upon termination of the Revolving Credit
Commitments, any Letter of Credit then outstanding that
has been so cash collateralized shall no longer be
considered a "Letter of Credit" as defined in
subsection 1.1 and any L/C Participating Interests
heretofore granted by the Issuing Lender to the Lenders
in such Letter of Credit shall be deemed terminated
(subject to automatic reinstatement in the event that
such cash collateral is returned and the Issuing Lender
is not fully reimbursed for any such L/C Obligations)
but the Letter of Credit fees payable under subsection
3.9 shall continue to accrue to the Issuing Lender and
the Participating Lenders (or, in the event of any such
automatic reinstatement, as provided in subsection 3.9)
with respect to such Letter of Credit until the expiry
thereof (provided that in lieu of paying a Standby or
Commercial L/C fee, as the case may be, equal to the
Applicable Margin for Revolving Credit Loans which are
Eurodollar Loans per annum, the Company shall pay to
the Administrative Agent an amount equal to .25% per
annum).
(b) In the case of termination of the
Revolving Credit Commitments, interest accrued on
the amount of any prepayment relating thereto and
any unpaid commitment fee accrued hereunder shall
be paid on the date of such termination. Any such
partial reduction of the Revolving Credit
Commitments shall be in an amount of $2,000,000 or
a whole multiple of $1,000,000 in excess thereof
and shall, in each case, reduce permanently the
amount of the Revolving Credit Commitments then in
effect.
4.4 Optional and Mandatory Prepayments;
Repayments of Term Loans. (a) Subject to subsection
4.12, the Company may at any time and from time to time
prepay Loans, in whole or in part, without premium or
penalty, by irrevocable notice to the Administrative
Agent by 10:00 a.m., New York City time, on the same
Business Day (or, in the case of Swing Line Loans, by
irrevocable notice to the Administrative Agent by 12:00
noon, New York City time, on the same Business Day) in
the case of Alternate Base Rate Loans, and three
Business Days' irrevocable notice to the Administrative
Agent in the case of Eurodollar Loans, specifying the
date and amount of prepayment and whether the
prepayment is of Revolving Credit Loans or Term Loans.
Upon receipt of such notice the Administrative Agent
shall promptly notify each Lender thereof. If such
notice is given, the Company shall make such
prepayment, and the payment amount specified in such
notice shall be due and payable, on the date specified
therein. Partial prepayments (i) of Term Loans shall
be in an aggregate principal amount equal to the lesser
of (A) (I) $2,000,000, or a whole multiple of
$1,000,000 in excess thereof with respect to Eurodollar
Loans or (II) $1,000,000, or a whole multiple of
$100,000 in excess thereof with respect to Alternate
Base Rate Loans and (B) the aggregate unpaid principal
amount of the Term Loans, and (ii) of Revolving Credit
Loans shall be in an aggregate principal amount equal
to the lesser of (A) (I) $2,000,000, or a whole
multiple of $1,000,000 in excess thereof with respect
to Eurodollar Loans or (II) $1,000,000 or a whole
multiple of $100,000 in excess thereof with respect to
Alternate Base Rate Loans and (B) the aggregate unpaid
principal amount of the Revolving Credit Loans, as the
case may be. Prepayments of the Term Loans pursuant to
this subsection 4.4(a) shall be applied, first, to any
installment due to be paid within three months of such
prepayment and, second, to the remaining installments
thereof ratably according to the amounts of such
installments.
(b)(i) So long as any Term Loans are
outstanding, if, subsequent to the Closing Date,
the Company or any of its Subsidiaries shall issue
any Capital Stock, 50% of the Net Proceeds thereof
(excluding amounts provided by the Investors or
their Affiliates or by management employees of
such issuer) shall be promptly applied toward the
prepayment of the Term Loans (applied to the
remaining installments thereof ratably according
to the outstanding principal amounts thereof until
paid in full); provided that Net Proceeds of such
issuance shall be deemed to be Net Proceeds of
such issuance for purposes of this subsection
4.4(b)(i) only after deducting therefrom the
redemption of up to 35% of the Permanent
Subordinated Debt under the "equity clawback"
provisions and the payment of any premium or
penalties or accrued interest with respect
thereto.
(ii) If, subsequent to the
Closing Date, the Company or any of its
Subsidiaries shall incur or permit the
incurrence of any Indebtedness (other than
Indebtedness permitted pursuant to subsection
8.1) 100% of the Net Proceeds thereof shall
be promptly applied toward the prepayment of
the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in
clause (v) of this subsection 4.4(b).
(iii) If, subsequent to the
Closing Date, the Company or any of its
Subsidiaries shall receive Net Proceeds from
any Asset Sale, such Net Proceeds shall be
promptly applied toward the prepayment of the
Term Loans and the reduction of the Revolving
Credit Commitments as set forth in clause (v)
of this subsection 4.4(b); provided that such
Net Proceeds need not be applied to the
prepayment of the Term Loans and the
reduction of the Revolving Credit Commitments
until the earlier of the date that the
aggregate amount of Net Proceeds received by
the Company or any of its Subsidiaries from
any Asset Sales exceeds $2,000,000 (and has
not yet been applied to the prepayment of the
Term Loans and the reduction of the Revolving
Credit Commitments hereunder) and the date
which is six months after the last
application of Net Proceeds pursuant to this
subsection 4.4(b)(iii).
(iv) If for any fiscal year
commencing with its fiscal year ending
December 31, 1998, there shall be Excess Cash
Flow for such fiscal year, 50% of such Excess
Cash Flow shall be applied toward prepayment
of the Term Loans and the reduction of the
Revolving Credit Commitments as set forth in
clause (v) of this subsection 4.4(b). Each
such prepayment shall be made not later than
120 days after the end of such fiscal year.
(v) Prepayments made pursuant
to subsections 4.4(b)(ii), (iii) or (iv)
shall be applied by the Company, first, to
the prepayment of the Term Loans (applied to
the remaining installments thereof ratably
according to the outstanding principal
amounts thereof until paid in full) and,
second, to reduce permanently the Revolving
Credit Commitments. Any such reduction of
the Revolving Credit Commitments shall be
accompanied by prepayment of, first, the
Swing Line Loans, second, the Revolving
Credit Loans and, third, the L/C Obligations
to the extent, if any, that the sum of the
aggregate outstanding principal amount of
Revolving Credit Loans, the aggregate
outstanding principal amount of all Swing
Line Loans, the aggregate amount available to
be drawn under all outstanding Letters of
Credit and the aggregate outstanding amount
of all L/C Obligations, in each case of all
Lenders, exceeds the amount of the aggregate
Revolving Credit Commitments as so reduced,
provided that if the aggregate principal
amount of Revolving Credit Loans, Swing Line
Loans and L/C Obligations then outstanding is
less than the amount of such excess (because
Letters of Credit constitute a portion
thereof), the Company shall, to the extent of
the balance of such excess, replace
outstanding Letters of Credit and/or deposit
an amount in cash in a cash collateral
account established for the benefit of the
Lenders.
(vi) The Company shall give
the Administrative Agent (which shall
promptly notify each Lender) at least one
Business Day's notice of each prepayment or
mandatory reduction pursuant to this
subsection 4.4(b) setting forth the date and
amount thereof. Except as otherwise may be
agreed by the Company and the Required
Lenders, and subject to Subsection 4.4(b)(v),
any prepayment of Loans pursuant to this
subsection 4.4 shall be applied, first, to
any Alternate Base Rate Loans then
outstanding and the balance of such
prepayment, if any, to the Eurodollar Loans
then outstanding; provided that prepayments
of Eurodollar Loans, if not on the last day
of the Interest Period with respect thereto,
shall, at the Company's option, be prepaid
subject to the provisions of subsection 4.12
or the amount of such prepayment (after
application to any Alternate Base Rate Loans)
shall be deposited with the Administrative
Agent as cash collateral for the Loans on
terms reasonably satisfactory to the
Administrative Agent and thereafter shall be
applied in the order of the Interest Periods
next ending most closely to the date such
prepayment is required to be made and on the
last day of each such Interest Period. After
such application, unless an Event of Default
shall have occurred and be continuing, any
remaining interest earned on such cash
collateral shall be paid to the Company.
(c) The Term Loans shall be repaid in
twenty-one installments on the dates set forth
below (each such day, an "Installment Payment
Date"), commencing on December 31, 1997 in an
aggregate amount equal to the amount specified for
each such Installment Payment Date.
Installment Payment Date Installment Amount
December 31, 1997 $ 500,000
June 30, 1998 500,000
December 31, 1998 500,000
June 30, 1999 500,000
December 31, 1999 500,000
June 30, 2000 500,000
December 31, 2000 500,000
June 30, 2001 500,000
December 31, 2001 500,000
June 30, 2002 500,000
December 31, 2002 9,500,000
March 31, 2003 9,500,000
June 30, 2003 9,500,000
September 30, 2003 9,500,000
December 31, 2003 15,000,000
March 31, 2004 15,000,000
June 30, 2004 15,000,000
September 30, 2004 15,000,000
December 31, 2004 18,000,000
March 31, 2005 18,000,000
June 30, 2005 36,000,000
Amounts repaid on account of the Term Loans pursuant to this
subsection 4.4 or otherwise may not be reborrowed. Accrued
interest on the amount of any prepayments shall be paid on
the Interest Payment Date next succeeding the date of any
partial prepayment and on the date on such prepayment in the
case of a prepayment in full of the Term Loans.
4.5 Interest Rates and Payment Dates. (a)
Eurodollar Loans shall bear interest for each day
during each Interest Period applicable thereto,
commencing on (and including) the first day of such
Interest Period to, but excluding, the last day of such
Interest Period, on the unpaid principal amount thereof
at a rate per annum equal to the Eurodollar Rate
determined for such Interest Period plus the Applicable
Margin.
(b) Alternate Base Rate Loans shall bear
interest for the period from and including the
date such Loans are made to, but excluding, the
maturity date thereof, or to, but excluding, the
conversion date if such Loans are earlier
converted into Eurodollar Loans on the unpaid
principal amount thereof at a rate per annum equal
to the Alternate Base Rate plus the Applicable
Margin.
(c) If all or a portion of (i) the
principal amount of any of the Loans or (ii) any
interest payable thereon shall not be paid when
due (whether at the stated maturity, by
acceleration or otherwise) such Loan, if a
Eurodollar Loan, shall be converted into an
Alternate Base Rate Loan at the end of the
then-current Interest Period for said Eurodollar
Loan (which conversion shall occur automatically
and without need for compliance with the
conditions for conversion set forth in subsection
4.2), and any such overdue amount shall, without
limiting the rights of the Lenders under Section
9, bear interest (which shall be payable on
demand) at a rate per annum which is 2% plus the
Alternate Base Rate plus the Applicable Margin
(or, in the case of a Eurodollar Loan, the
Eurodollar Rate for the Interest Period plus the
Applicable Margin plus 2%, if higher) from the
date of such non-payment until paid in full (as
well after as before judgment).
(d) Except as otherwise expressly
provided for in this subsection 4.5, interest
shall be payable in arrears on each Interest
Payment Date.
4.6 Computation of Interest and Fees. (a)
Interest in respect of Alternate Base Rate Loans, at
any time that the Alternate Base Rate is determined by
reference to the Prime Rate, and all fees hereunder
shall be calculated on the basis of a 365 (or 366 as
the case may be) day year for the actual days elapsed.
Interest in respect of Eurodollar Loans and in respect
of Alternate Base Rate Loans at any time that the
Alternate Base Rate is determined by reference to the
Base CD Rate or the Federal Funds Effective Rate shall
be calculated on the basis of a 360 day year for the
actual days elapsed. The Administrative Agent shall as
soon as practicable notify the Company and the Lenders
of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change
in the Alternate Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening
of business on the day on which such change in the
Alternate Base Rate is announced or such change in the
Eurocurrency Reserve Requirements becomes effective, as
the case may be. The Administrative Agent shall as
soon as practicable notify the Company and the Lenders
of the effective date and the amount of each such
change.
(b) Each determination of an interest
rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive
and binding on the Company and the Lenders in the
absence of manifest error. The Administrative
Agent shall, at the request of the Company or any
Lender, deliver to the Company or such Lender a
statement showing the quotations used by the
Administrative Agent in determining the Eurodollar
Rate.
4.7 Certain Fees. The Company agrees to pay
to the Administrative Agent, for its own account, a
non-refundable agent's fee in an amount previously
agreed to with the Administrative Agent, payable in
advance on the Closing Date and on the first day of
each fiscal year of the Company thereafter.
4.8 Inability to Determine Interest Rate.
In the event that the Administrative Agent shall have
determined (which determination shall be conclusive and
binding upon the Company) that (a) by reason of
circumstances affecting the interbank eurodollar
market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for any Interest
Period with respect to (i) proposed Loans that the
Company has requested be made as Eurodollar Loans, (ii)
any Eurodollar Loans that will result from the
requested conversion of all or part of the Alternate
Base Rate Loans into Eurodollar Loans or (iii) the
continuation of any Eurodollar Loan as such for an
additional Interest Period, or (b) dollar deposits in
the relevant amount and for the relevant period with
respect to any such Eurodollar Loan are not generally
available to the Lenders in their respective Eurodollar
Lending Offices' interbank eurodollar markets, the
Administrative Agent shall forthwith give telecopy
notice of such determination, confirmed in writing, to
the Company and the Lenders at least one day prior to,
as the case may be, the requested Borrowing Date, the
conversion date or the last day of such Interest
Period. If such notice is given (i) any requested
Eurodollar Loans shall be made as Alternate Base Rate
Loans, (ii) any Alternate Base Rate Loans that were to
have been converted to Eurodollar Loans shall be
continued as Alternate Base Rate Loans, and (iii) any
outstanding Eurodollar Loans shall be converted on the
last day of the then current Interest Period applicable
thereto into Alternate Base Rate Loans. Until such
notice has been withdrawn by the Administrative Agent,
no further Eurodollar Loans shall be made and no
Alternate Base Rate Loans shall be converted to
Eurodollar Loans.
4.9 Pro Rata Treatment and Payments. (a)
Except to the extent otherwise provided herein, each
borrowing of Loans by the Company from the Lenders and
any reduction of the Commitments of the Lenders
hereunder shall be made pro rata according to the
relevant Commitment Percentages of the Lenders with
respect to the Loans borrowed or the Commitments to be
reduced.
(b) Whenever any payment received by the
Administrative Agent under this Agreement or any
Note or any other Credit Document is insufficient
to pay in full all amounts then due and payable to
the Administrative Agent and the Lenders under
this Agreement:
(i) If the Administrative Agent has not
received a Payment Sharing Notice (or, if the
Administrative Agent has received a Payment
Sharing Notice but the Event of Default specified
in such Payment Sharing Notice has been cured or
waived in accordance with the provisions of this
Agreement), such payment shall be distributed by
the Administrative Agent and applied by the
Administrative Agent and the Lenders in the
following order: first, to the payment of fees
and expenses due and payable to the Administrative
Agent under and in connection with this Agreement
and the other Credit Documents; second, to the
payment of all expenses due and payable under
subsection 11.5, ratably among the Lenders in
accordance with the aggregate amount of such
payments owed to each such Lender; third, to the
payment of fees due and payable under subsections
3.2 and 3.9, ratably among the Lenders in
accordance with the Commitment Percentage of each
Lender of the Commitment for which such payment is
owed and, in the case of the Issuing Lender, the
amount retained by the Issuing Lender for its own
account pursuant to subsection 3.9; fourth, to the
payment of interest then due and payable on the
Loans and the L/C Obligations ratably in
accordance with the aggregate amount of interest
owed to each such Lender; and fifth, to the
payment of the principal amount of the Loans and
the L/C Obligations which is then due and payable
ratably among the Lenders in accordance with the
aggregate principal amount owed to each such
Lender; or
(ii) If the Administrative Agent has
received a Payment Sharing Notice which remains in
effect, all payments received by the
Administrative Agent under this Agreement or any
Note shall be distributed by the Administrative
Agent and applied by the Administrative Agent and
the Lenders in the following order: first, to the
payment of all amounts described in clauses
"first" through "third" of the foregoing clause
(i) in the order set forth therein; second, to the
payment of the interest accrued on all Loans and
L/C Obligations, regardless of whether any such
amount is then due and payable, ratably among the
Lenders in accordance with the aggregate accrued
interest plus the aggregate principal amount of
all Loans and L/C Obligations then due and payable
and owed to such Lender; and third, to the payment
of the principal amount of all Loans and L/C
Obligations, regardless of whether any such amount
is then due and payable, ratably among the Lenders
in accordance with the aggregate principal amount
owed to such Lender.
(c) If any Lender (a "Non-Funding
Lender") has (x) failed to make a Revolving Credit
Loan required to be made by it hereunder, and the
Administrative Agent has determined that such
Lender is not likely to make such Revolving Credit
Loan or (y) given notice to the Company or the
Administrative Agent that it will not make, or
that it has disaffirmed or repudiated any
obligation to make, any Revolving Credit Loan, in
each case by reason of the provisions of the
Financial Institutions Reform, Recovery and
Enforcement Act of 1989, as amended, or otherwise,
(i) any payment made on account of the principal
of the Revolving Credit Loans outstanding shall be
made as follows:
(A) in the case of any such payment made on any
date when and to the extent that in the determination
of the Administrative Agent the Company would be able
under the terms and conditions hereof to reborrow the
amount of such payment under the Commitments and to
satisfy any applicable conditions precedent set forth
in Section 6 to such reborrowing, such payment shall be
made on account of the outstanding Revolving Credit
Loans held by the Lenders other than the Non-Funding
Lender pro rata according to the respective outstanding
principal amounts of the Revolving Credit Loans of such
Lenders; and
(B) otherwise, such payment shall be made on
account of the outstanding Revolving Credit Loans held
by the Lenders pro rata according to the respective
outstanding principal amounts of such Revolving Credit
Loans; and
(ii) any payment made on account of interest on the
Revolving Credit Loans shall be made pro rata according to
the respective amounts of accrued and unpaid interest due
and payable on the Revolving Credit Loans with respect to
which such payment is being made. The Company agrees to
give the Administrative Agent such assistance in making any
determination pursuant to subparagraph (i)(A) of this
paragraph as the Administrative Agent may reasonably
request. Any such determination by the Administrative Agent
shall be conclusive and binding on the Lenders.
(d) All payments (including prepayments)
to be made by the Company on account of principal,
interest and fees shall be made without set-off or
counterclaim and shall be made to the
Administrative Agent, for the account of the
Lenders at the Administrative Agent's office
located at 270 Park Avenue, New York, New York
10017, in lawful money of the United States and in
immediately available funds. The Administrative
Agent shall promptly distribute such payments in
accordance with the provisions of subsection
4.9(b) upon receipt in like funds as received. If
any payment hereunder (other than payments on
Eurodollar Loans) would become due and payable on
a day other than a Business Day, such payment
shall become due and payable on the next
succeeding Business Day and, with respect to
payments of principal, interest thereon shall be
payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan
becomes due and payable on a day other than a
Business Day, the maturity thereof shall be
extended to the next succeeding Business Day (and
with respect to payments of principal, interest
thereon shall be payable at the then applicable
rate during such extension), unless the result of
such extension would be to extend such payment
into another calendar month in which event such
payment shall be made on the immediately preceding
Business Day.
(e) Unless the Administrative Agent
shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not
make the amount which would constitute its
Commitment Percentage of such borrowing available
to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such
amount available to the Administrative Agent in
accordance with subsection 4.1 and the
Administrative Agent may, in reliance upon such
assumption, make available to the Company a
corresponding amount. If such amount is not made
available to the Administrative Agent by the
required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender
makes such amount immediately available to the
Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with
respect to any amounts owing under this subsection
4.9(e) shall be conclusive absent manifest error.
If such Lender's Commitment Percentage of such
borrowing is not in fact made available to the
Administrative Agent by such Lender within three
Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to
recover such amount with interest thereon at the
rate per annum applicable to Alternate Base Rate
Loans hereunder (in lieu of any otherwise
applicable interest), on demand, from the Company,
without prejudice to any rights which the Company
or the Administrative Agent may have against such
Lender hereunder. Nothing contained in this
subsection 4.9 shall relieve any Lender which has
failed to make available its ratable portion of
any borrowing hereunder from its obligation to do
so in accordance with the terms hereof.
(f) The failure of any Lender to make
the Loan to be made by it on any Borrowing Date
shall not relieve any other Lender of its
obligation, if any, hereunder to make its Loan on
such Borrowing Date, but no Lender shall be
responsible for the failure of any other Lender to
make the Loan to be made by such other Lender on
such Borrowing Date.
(g) All payments and optional
prepayments (other than prepayments as set forth
in subsection 4.11 with respect to increased
costs) of Eurodollar Loans hereunder shall be in
such amounts and be made pursuant to such
elections so that, after giving effect thereto,
the aggregate principal amount of all Eurodollar
Loans with the same Interest Period shall not be
less than $2,000,000 or a whole multiple of
$1,000,000 in excess thereof.
4.10 Illegality. Notwithstanding any other
provision herein, if any Change in Law occurring after
the date that any lender becomes a Lender party to this
Agreement, shall make it unlawful for such Lender to
make or maintain Eurodollar Loans as contemplated by
this Agreement, the commitment of such Lender hereunder
to make Eurodollar Loans or to convert all or a portion
of Alternate Base Rate Loans into Eurodollar Loans
shall forthwith be suspended until such time, if any,
as such illegality shall no longer exist and such
Lender's Loans then outstanding as Eurodollar Loans, if
any, shall be converted automatically to Alternate Base
Rate Loans for the duration of the respective Interest
Periods (or, if permitted by applicable law, at the end
of such Interest Periods) and all payments of principal
which would otherwise be applied to such Eurodollar
Loans shall be applied instead to such Lender's
Alternate Base Rate Loans. The Company hereby agrees
to pay any Lender, promptly upon its demand, any
amounts payable pursuant to subsection 4.12 in
connection with any conversion in accordance with this
subsection 4.10 (such Lender's notice of such costs, as
certified in reasonable detail as to such amounts to
the Company through the Administrative Agent, to be
conclusive absent manifest error).
4.11 Requirements of Law. (a) In the event
that any Change in Law or compliance by any Lender with
any request or directive (whether or not having the
force of law) from any central bank or other
Governmental Authority occurring after the date that
any lender becomes a Lender party to this Agreement:
(i) does or shall subject any such
Lender or its Eurodollar Lending Office to any tax
of any kind whatsoever with respect to this
Agreement, any Note or any Eurodollar Loans made
by it, or change the basis of taxation of payments
to such Lender or its Eurodollar Lending Office of
principal, the commitment fee, interest or any
other amount payable hereunder (except for (x) net
income and franchise taxes imposed on the net
income of such Lender or its Eurodollar Lending
Office by the jurisdiction under the laws of which
such Lender is organized or any political
subdivision or taxing authority thereof or
therein, or by any jurisdiction in which such
Lender's Eurodollar Lending Office is located or
any political subdivision or taxing authority
thereof or therein, including changes in the rate
of tax on the overall net income of such Lender or
such Eurodollar Lending Office, and (y) taxes
resulting from the substitution of any such system
by another system of taxation, provided that the
taxes payable by Lenders subject to such other
system of taxation are not generally charged to
borrowers from such Lenders having loans or
advances bearing interest at a rate similar to the
Eurodollar Rate);
(ii) does or shall impose, modify or
hold applicable any reserve, special deposit,
compulsory loan or similar requirement against
assets held by, or deposits or other liabilities
in or for the account of, advances or loans by, or
other credit extended by, or any other acquisition
of funds by, any office of such Lender which are
not otherwise included in the determination of the
Eurodollar Rate; or
(iii) does or shall impose on such
Lender any other condition;
and the result of any of the foregoing is to increase the
cost to such Lender or its Eurodollar Lending Office of
making, converting, renewing or maintaining advances or
extensions of credit or to reduce any amount receivable
hereunder, in each case, in respect of its Eurodollar Loans,
then, in any such case, the Company shall promptly pay such
Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such additional cost or reduced
amount receivable which such Lender deems to be material as
determined by such Lender with respect to such Eurodollar
Loans, together with interest on each such amount from the
date demanded until payment in full thereof at a rate per
annum equal to the Alternate Base Rate plus 1%.
(b) In the event that any Change in Law
occurring after the date that any lender becomes a
Lender party to this Agreement with respect to any
such Lender shall, in the opinion of such Lender,
require that any Commitment of such Lender be
treated as an asset or otherwise be included for
purposes of calculating the appropriate amount of
capital to be maintained by such Lender or any
corporation controlling such Lender, and such
Change in Law shall have the effect of reducing
the rate of return on such Lender's or such
corporation's capital, as the case may be, as a
consequence of such Lender's obligations hereunder
to a level below that which such Lender or such
corporation, as the case may be, could have
achieved but for such Change in Law (taking into
account such Lender's or such corporation's
policies, as the case may be, with respect to
capital adequacy) by an amount deemed by such
Lender to be material, then from time to time
following notice by such Lender to the Company of
such Change in Law as provided in paragraph (c) of
this subsection 4.11, within 15 days after demand
by such Lender, the Company shall pay to such
Lender such additional amount or amounts as will
compensate such Lender or such corporation on an
after-tax basis, as the case may be, for such
reduction.
(c) The Company shall not be required to
make any payments to any Lender for any additional
amounts pursuant to this subsection 4.11 unless
such Lender has given written notice to the
Company, through the Administrative Agent, of its
intent to request such payments prior to or within
60 days after the date on which such Lender became
entitled to claim such amounts. If any Lender has
notified the Company through the Administrative
Agent of any increased costs pursuant to paragraph
(a) of this subsection 4.11, the Company at any
time thereafter may, upon at least three Business
Days' notice to the Administrative Agent (which
shall promptly notify the Lenders thereof), and
subject to subsection 4.12, prepay (or convert
into Alternate Base Rate Loans) all (but not a
part) of the Eurodollar Loans then outstanding.
Each Lender agrees that, upon the occurrence of
any event giving rise to the operation of
paragraph (a) of this subsection 4.11 with respect
to such Lender, it will, if requested by the
Company and to the extent permitted by law or by
the relevant Governmental Authority, endeavor in
good faith to avoid or minimize the increase in
costs or reduction in payments resulting from such
event (including, without limitation, endeavoring
to change its Eurodollar Lending Office);
provided, that such avoidance or minimization can
be made in such a manner that such Lender, in its
sole determination, suffers no economic, legal or
regulatory disadvantage. If any Lender requests
compensation from the Company under this
subsection 4.11, the Company may, by notice to
such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender
thereafter to make or continue Loans of the Type
with respect to which such compensation is
requested, or to convert Loans of any other Type
into Loans of such Type, until the Requirement of
Law giving rise to such request ceases to be in
effect, provided that such suspension shall not
affect the right of such Lender to receive the
compensation so requested.
(d) Each Lender (and in case of an
Assignee on the date it becomes a Lender) that is
not a United States Person (as defined in Section
7701(a)(30) of the Code) for federal income tax
purposes either (1) in the case of a Lender that
is a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (i) represents to the
Company (for the benefit of the Company and the
Administrative Agent) that under applicable law
and treaties no taxes are required to be withheld
by the Company or the Administrative Agent with
respect to any payments to be made to such Lender
in respect of the Loans or the L/C Participating
Interests, (ii) agrees to furnish to the Company,
with a copy to the Administrative Agent, either
U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such
Lender claims entitlement to complete exemption
from U.S. federal withholding tax on all interest
payments hereunder) and (iii) agrees (for the
benefit of the Company and the Administrative
Agent), to the extent it may lawfully do so at
such times, to provide the Company, with a copy to
the Administrative Agent, a new Form 4224 or Form
1001 upon the expiration or obsolescence of any
previously delivered form and comparable
statements in accordance with applicable U.S. laws
and regulations and amendments duly executed and
completed by such Lender, and to comply from time
to time with all applicable U.S. laws and
regulations with regard to such withholding tax
exemption or (2) in the case of a Lender that is
not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (i) represents to the
Company (for the benefit of the Company and the
Administrative Agent) that it is not a bank within
the meaning of Section 881(c)(3)(A) of the Code,
(ii) agrees to furnish to the Company, with a copy
to the Administrative Agent, (A) a certificate
substantially in the form of Exhibit J hereto (any
such certificate, a "Subsection 4.11(d)(2)
Certificate") and (B) two accurate and complete
original signed copies of Internal Revenue Service
Form W-8, certifying to such Lender's legal
entitlement at the Closing Date to an exemption
from U.S. withholding tax under the provisions of
Section 881(c) of the Code with respect to all
payments to be made under this Agreement, and
(iii) agrees, to the extent legally entitled to do
so, upon reasonable request by the Company, to
provide to the Company (for the benefit of the
Company and the Administrative Agent) such other
forms as may be required in order to establish the
legal entitlement of such Lender to an exemption
from withholding with respect to payments under
this Agreement. Notwithstanding any provision of
this subsection 4.11 or 4.9(d) to the contrary,
the Company shall have no obligation to pay any
amount to or for the account of any Lender (or the
Eurodollar Lending Office of any Lender) on
account of any taxes pursuant to this subsection
4.11, to the extent that such amount results from
(i) the failure of any Lender to comply with its
obligations pursuant to this subsection 4.11, (ii)
any representation or warranty made or deemed to
be made by any Lender pursuant to this subsection
4.11(d) proving to have been incorrect, false or
misleading in any material respect when so made or
deemed to be made or (iii) any Change in Law or
compliance by any Lender with any request or
directive (whether or not having the force of law)
from any central bank or other Governmental
Authority, the effect of which would be to subject
to any taxes any payment made pursuant to this
Agreement to any Lender making the representation
and covenants set forth in subsection 4.11(d)(2),
which payment would not be subject to such taxes
were such Lender eligible to make and comply with,
and actually made and complied with, the
representation and covenants set forth in
subsection 4.11(d)(1) hereinabove.
(e) A certificate in reasonable detail
as to any amounts submitted by such Lender,
through the Administrative Agent, to the Company,
shall be conclusive in the absence of manifest
error. The covenants contained in this subsection
4.11 shall survive the termination of this
Agreement and repayment of the Loans.
4.12 Indemnity. The Company agrees to
indemnify each Lender and to hold such Lender harmless
from any loss or expense (but without duplication of
any amounts payable as default interest) which such
Lender may sustain or incur as a consequence of (a)
default by the Company in payment of the principal
amount of or interest on any Eurodollar Loans of such
Lender, including, but not limited to, any such loss or
expense arising from interest or fees payable by such
Lender to lenders of funds obtained by it in order to
make or maintain its Eurodollar Loans hereunder, (b)
default by the Company in making a borrowing after the
Company has given a notice in accordance with
subsection 4.1 or in making a conversion of Alternate
Base Rate Loans to Eurodollar Loans or in continuing
Eurodollar Loans as such, in either case, after the
Company has given notice in accordance with subsection
4.2, (c) default by the Company in making any
prepayment after the Company has given a notice in
accordance with subsection 4.4 or (d) a payment or
prepayment of a Eurodollar Loan or conversion
(including without limitation, as a result of
subsection 4.4 and/or a conversion pursuant to
subsection 4.10) of any Eurodollar Loan into an
Alternate Base Rate Loan, in either case on a day which
is not the last day of an Interest Period with respect
thereto, including, but not limited to, any such loss
or expense arising from interest or fees payable by
such Lender to lenders of funds obtained by it in order
to maintain its Eurodollar Loans hereunder (but
excluding loss of profit). This covenant shall survive
termination of this Agreement and repayment of the
Loans.
4.13 Repayment of Loans; Evidence of Debt.
(a) The Company hereby unconditionally promises to pay
to the Administrative Agent for the account of each
Lender (i) the then unpaid principal amount of each
Revolving Credit Loan of such Lender on the Revolving
Credit Termination Date, (ii) the principal amount of
the Term Loan of such Lender, in twenty-one consecutive
installments, payable on each Installment Payment Date
(or the then unpaid principal amount of such Term Loan
on the date that the Term Loans become due and payable
pursuant to Section 9), and (iii) the then unpaid
principal amount of the Swing Line Loans of the Swing
Line Lender on the Revolving Credit Termination Date.
The Company hereby further agrees to pay interest on
the unpaid principal amount of the Loans from time to
time outstanding from the date hereof until payment in
full thereof at the rates per annum and on the dates
set forth in subsection 4.5.
(b) Each Lender shall maintain in
accordance with its usual practice an account or
accounts evidencing indebtedness of the Company to
such Lender resulting from each Loan of such
Lender from time to time, including the amounts of
principal and interest payable and paid to such
Lender from time to time under this Agreement.
(c) The Administrative Agent shall
maintain the Register pursuant to subsection
11.6(d), and a subaccount therein for each Lender,
in which shall be recorded (i) the amount of each
Revolving Credit Loan and Term Loan made
hereunder, the Type thereof and each Interest
Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become
due and payable from the Company to each Lender
hereunder and (iii) both the amount of any sum
received by the Administrative Agent hereunder
from the Company and each Lender's share thereof.
(d) The entries made in the Register and
the accounts of each Lender maintained pursuant to
subsection 4.13(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the
Company therein recorded; provided that the
failure of any Lender or the Administrative Agent
to maintain the Register or any such account, or
any error therein, shall not in any manner affect
the obligation of the Company to repay (with
applicable interest) the Loans made to such
Company by such Lender or to repay any other
obligations in accordance with the terms of this
Agreement.
(e) The Company agrees that, upon the
request to the Administrative Agent by any Lender,
the Company will execute and deliver to such
Lender (i) a promissory note of the Company
evidencing the Revolving Credit Loans of such
Lender, substantially in the form of Exhibit A
with appropriate insertions as to date and
principal amount (a "Revolving Credit Note"),
and/or (ii) a promissory note of the Company
evidencing the Term Loan of such Lender,
substantially in the form of Exhibit B with
appropriate insertions as to date and principal
amount (a "Term Loan Note"), and/or (iii) in the
case of the Swing Line Lender, a promissory note
of the Company evidencing the Swing Line Loans of
the Swing Line Lender, substantially in the form
of Exhibit C with appropriate insertions as to
date and principal amount (the "Swing Line Note").
4.14 Replacement of Lenders. In the event
any Lender or the Issuing Lender is a Non-Funding
Lender, exercises its rights pursuant to subsection
4.10 or requests payments pursuant to subsections 3.10
or 4.11, the Company may require, at the Company's
expense (including payment of any processing fees under
subsection 11.6(e)) and subject to subsection 4.12,
such Lender or the Issuing Lender to assign, at par
plus accrued interest and fees, without recourse (in
accordance with subsection 11.6) all of its interests,
rights and obligations hereunder (including all of its
Commitments and the Loans and other amounts at the time
owing to it hereunder and its Notes and its interest in
the Letters of Credit) to a bank, financial institution
or other entity specified by the Company, provided that
(i) such assignment shall not conflict with or violate
any law, rule or regulation or order of any court or
other Governmental Authority, (ii) the Company shall
have received the written consent of the Administrative
Agent, which consent shall not unreasonably be
withheld, to such assignment, (iii) the Company shall
have paid to the assigning Lender or the Issuing Lender
all monies other than principal, interest and fees
accrued and owing hereunder to it (including pursuant
to subsections 3.10, 4.10, 4.11 and 4.12) and (iv) in
the case of a required assignment by the Issuing
Lender, the Letters of Credit shall be canceled and
returned to the Issuing Lender.
SECTION 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this
Agreement and to make the Loans and to induce the Issuing
Lender to issue, and the Participating Lenders to
participate in, the Letters of Credit, the Company hereby
represents and warrants to each Lender and the
Administrative Agent as of the Closing Date and as of the
making of any extension of credit hereunder:
5.1 Financial Condition. (a) The
consolidated audited balance sheets of the Company and
its consolidated Subsidiaries as at December 31, 1995
and December 31, 1996 and the related consolidated
statements of operations and of cash flows for the
fiscal years ended on each such dates, audited by
Arthur Andersen LLP, copies of which have heretofore
been furnished to each Lender, present fairly in
accordance with GAAP the consolidated financial
condition of the Company and its consolidated
Subsidiaries as at such dates, and the consolidated
results of their operations and their consolidated cash
flows for the fiscal year then ended. All such
financial statements have been prepared in accordance
with GAAP applied consistently throughout the periods
involved (except as approved by such accountants and as
disclosed therein). Neither the Company nor any of its
consolidated Subsidiaries had, at the date of each
balance sheet referred to above, any material
Contingent Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual
forward or long-term commitment, including, without
limitation, any material interest rate or foreign
currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes
thereto or expressly permitted to be incurred
hereunder.
(b) The unaudited consolidated balance sheet of
the Company and its consolidated Subsidiaries as at April
30, 1997 and the related consolidated statements of
operations and of cash flows for the four-month period then
ended, certified by a Responsible Officer of the Company,
copies of which have heretofore been furnished to each
Lender, present fairly in accordance with GAAP the financial
position of the Company and its consolidated Subsidiaries as
at such date and the consolidated results of their
operations and their consolidated cash flows for the four-
month period then ended (subject to normal year-end
adjustments). Such financial statements, including the
related schedules and notes thereto, have been prepared in
accordance with GAAP (except as approved by such Responsible
Officer and disclosed therein). The Company and its
consolidated Subsidiaries did not have at the date of such
balance sheet, any material Contingent Obligation,
contingent liability or liability for taxes, or any
long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign
currency exchange transaction, which is not reflected in
such balance sheet or in the notes thereto or in the notes
to the Company's audited financial statements. During the
period from December 31, 1996 to the Closing Date, no
dividends or other distributions have been declared, paid or
made upon the Capital Stock of the Company or any of its
consolidated Subsidiaries nor has any of the Capital Stock
of the Company or any of its consolidated Subsidiaries been
redeemed, retired, purchased or otherwise acquired for value
by the Company or any of its consolidated Subsidiaries,
respectively, except as disclosed in the Form S-4.
(c) The unaudited consolidated pro forma balance
sheet of the Company and its consolidated Subsidiaries, as
of April 30, 1997, certified by a Responsible Officer of the
Company (the "Pro Forma Balance Sheet"), copies of which
have been furnished to each Lender, is the unaudited balance
sheet of the Company and its consolidated Subsidiaries
adjusted to give effect (as if such events had occurred on
the date set forth therein) to (i) the Merger and each of
the transactions contemplated by the Merger Agreement, (ii)
the incurrence of the Loans and the issuance of the Letters
of Credit to be incurred or issued, as the case may be, on
the Closing Date and (iii) the incurrence of the Bridge
Subordinated Debt or the Permanent Subordinated Debt and all
other Indebtedness that the Company and its consolidated
Subsidiaries expect to incur, and the payment of all amounts
the Company and its consolidated Subsidiaries expect to pay,
in connection with the Merger. The Pro Forma Balance Sheet,
together with the notes thereto, were prepared based on good
faith assumptions in accordance with GAAP and is based on
the best information available to the Company as of the date
of delivery thereof and reflects on a pro forma basis the
financial position of the Company and its consolidated
Subsidiaries as of April 30, 1997, as adjusted, as described
above, assuming that the events specified in the preceding
sentence had actually occurred as of April 30, 1997.
5.2 No Change. Other than as disclosed in
the Form S-4 or 1996 Form 10-K, since December 31,
1996, (a) there has been no change, and (as of the
Closing Date only) no development or event which has
had or could reasonably be expected to have a material
adverse effect on (i) the business, assets, condition
(financial or otherwise) or results of operations of
the Company and its Subsidiaries taken as a whole, (ii)
the ability of the Company and its Subsidiaries to
perform their obligations under the Credit Documents
and with respect to the other financings contemplated
hereby or (iii) the rights and remedies of the Lenders
under the Credit Documents and (b) no dividends or
other distributions have been declared, paid or made
upon the Capital Stock of the Company nor has any of
the Capital Stock of the Company been redeemed,
retired, repurchased or otherwise acquired for value by
the Company or any of its Subsidiaries, except as
permitted by subsection 8.11.
5.3 Corporate Existence; Compliance with
Law. Each of the Company and its Subsidiaries (a) is a
corporation duly organized and validly existing under
the laws of the jurisdiction of its incorporation, (b)
has full corporate power and authority and possesses
all governmental franchises, licenses, permits,
authorizations and approvals necessary to enable it to
use its corporate name and to own, lease or otherwise
hold its properties and assets and to carry on its
business as presently conducted other than such
franchises, licenses, permits, authorizations and
approvals the lack of which, individually or in the
aggregate, would not have a material adverse effect on
the business, assets, condition (financial or
otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole, (c) is duly
qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the
ownership, leasing or holding of its properties makes
such qualification necessary, except such jurisdictions
where the failure so to qualify would not have a
material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken
as a whole, and (d) is in compliance with all
applicable statutes, laws, ordinances, rules, orders,
permits and regulations of any governmental authority
or instrumentality, domestic or foreign (including,
without limitation, those related to Hazardous
Materials and substances), except where noncompliance
would not have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries, taken as a whole. Neither the Company
nor any of its Subsidiaries has received any written
communication from a Governmental Authority that
alleges that the Company or any of its Subsidiaries is
not in compliance, in all material respects, with all
material federal, state, local or foreign laws,
ordinances, rules and regulations.
5.4 Corporate Power; Authorization. Each of
the Company and its Subsidiaries has the corporate
power and authority to make, deliver and perform each
of the Credit Documents to which it is a party, and the
Company has the corporate power and authority and legal
right to borrow hereunder and to have Letters of Credit
issued for its account hereunder. Each of the Company
and its Subsidiaries has taken all necessary corporate
action to authorize the execution, delivery and
performance of each of the Credit Documents to which it
is or will be a party and the Company has taken all
necessary corporate action to authorize the borrowings
hereunder and the issuance of Letters of Credit for its
account hereunder. No consent or authorization of, or
filing with, any Person (including, without limitation,
any Governmental Authority) is required in connection
with the execution, delivery or performance by the
Company or any of its Subsidiaries, or for the validity
or enforceability against the Company or any of its
Subsidiaries, of any Credit Document except for
consents, authorizations and filings which have been
obtained or made and are in full force and effect and
except (i) such consents, authorizations and filings,
the failure to obtain or perform (x) which would not
have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as
a whole and (y) which would not adversely affect the
validity or enforceability of any of the Credit
Documents or the rights or remedies of the
Administrative Agent or the Lenders thereunder, and
(ii) such filings as are necessary to perfect the Liens
of the Lenders created pursuant to this Agreement and
the Security Documents.
5.5 Enforceable Obligations. This Agreement
and the Merger Agreement have been, and each of the
other Credit Documents and any other agreement to be
entered into by any Credit Party pursuant to the Merger
Agreement will be duly executed and delivered on behalf
of such Credit Party that is party thereto. The Merger
Agreement has been duly executed and delivered on
behalf of the Company and AcquisitionCo. This
Agreement and the Merger Agreement each constitutes,
and each of the other Credit Documents and any other
agreement to be entered into by any Credit Party
pursuant to the Merger Agreement will constitute upon
execution and delivery, the legal, valid and binding
obligation of such Credit Party, and is enforceable
against such Credit Party in accordance with its terms,
except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws
affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law). The
Merger Agreement constitutes the legal, valid and
binding obligation of (a) the Company enforceable
against the Company in accordance with its terms and
(b) AcquisitionCo enforceable against AcquisitionCo in
accordance with its terms, except, in each case, as may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws affecting
creditors' rights generally and by general principles
of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law).
5.6 No Legal Bar. The execution, delivery
and performance of each Credit Document, the incurrence
or issuance of and use of the proceeds of the Loans,
the Subordinated Debt and of drawings under the Letters
of Credit and the transactions contemplated by the
Merger Agreement, the Credit Documents and the
documentation for the Subordinated Debt, (a) will not
violate any Requirement of Law or any Contractual
Obligation applicable to or binding upon each of
AcquisitionCo, the Company or any Subsidiary or any of
their respective properties or assets, in any manner
which, individually or in the aggregate, (i) would have
a material adverse effect on the ability of
AcquisitionCo, the Company or any such Subsidiary to
perform its obligations under the Credit Documents, the
Merger Agreement, and any other agreement to be entered
into pursuant to the Merger Agreement or in connection
with the Subordinated Debt, to which it is a party,
(ii) would give rise to any liability on the part of
the Administrative Agent or any Lender, or (iii) would
have a material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as
a whole, and (b) will not result in the creation or
imposition of any Lien on any of its properties or
assets pursuant to any Requirement of Law applicable to
it, as the case may be, or any of its Contractual
Obligations, except for the Liens arising under the
Security Documents.
5.7 No Material Litigation. No litigation
by, investigation known to the Company by, or
proceeding of, any Governmental Authority is pending
against the Company or any of its Subsidiaries
(including after giving effect to the Merger) with
respect to the validity, binding effect or
enforceability of the Merger Agreement, any Credit
Document, the Loans made hereunder, the use of proceeds
thereof, of the Subordinated Debt or of any drawings
under a Letter of Credit and the other transactions
contemplated hereby or by the Merger Agreement. Other
than as disclosed in the Form S-4 or the 1996 Form 10-
K, no lawsuits, claims, proceedings or investigations
are pending or, to the best knowledge of the Company,
threatened as of the Closing Date against or affecting
the Company or a Subsidiary or any of their respective
properties, assets, operations or businesses (including
after giving effect to the Merger), in which there is a
probability of an adverse determination, and is
reasonably likely, if adversely decided, to have a
material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries, taken
as a whole.
5.8 Investment Company Act. Neither the
Company nor any Subsidiary is an "investment company"
or a company "controlled" by an "investment company"
(as each of the quoted terms is defined or used in the
Investment Company Act of 1940, as amended).
5.9 Federal Regulation. No part of the
proceeds of any of the Loans or Subordinated Debt or
any drawing under a Letter of Credit will be used for
any purpose which violates the provisions of Regulation
G, T, U or X of the Board. Neither the Company nor any
of its Subsidiaries is engaged or will engage,
principally or as one of its important activities, in
the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms
under said Regulation U.
5.10 No Default. The Company and each of
its Subsidiaries have performed all material
obligations required to be performed by them under
their respective Contractual Obligations (including
after giving effect to the Merger) and they are not
(with or without the lapse of time or the giving of
notice, or both) in breach or default in any respect
thereunder, except to the extent that such breach or
default would not have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole. Neither the Company nor
any of its Subsidiaries (including after giving effect
to the Merger) is in default under any material
judgment, order or decree of any Governmental
Authority, domestic or foreign, applicable to it or any
of its respective properties, assets, operations or
business, except to the extent that any such defaults
would not, in the aggregate, have a material adverse
effect on the business, assets, condition (financial or
otherwise) or results of operations of the Company and
its Subsidiaries, taken as a whole.
5.11 Taxes. Except as set forth on Schedule
5.11, each of the Company and its Subsidiaries
(including after giving effect to the Merger) has filed
or caused to be filed all material tax returns which,
to the knowledge of the Company, are required to be
filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made
against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any
the amount of which is currently being contested in
good faith by appropriate proceedings and with respect
to which reserves (or other sufficient provisions) in
conformity with GAAP have been provided on the books of
the Company or its Subsidiaries (including after giving
effect to the Merger), as the case may be); and no tax
Lien has been filed, and, to the knowledge of the
Company, no written claim is being asserted, with
respect to any such tax, fee or other charges.
5.12 Subsidiaries. After giving effect to
the consummation of the Merger, the Subsidiaries and
their jurisdiction of incorporation shall be as set
forth on Schedule 5.12.
5.13 Ownership of Property; Liens. As of
the Closing Date and as of the making of any extension
of credit hereunder (subject to transfers and
dispositions of property permitted under subsection
8.5), each of the Company and its Subsidiaries has good
and valid title to all of its material assets (other
than real property or interests in real property) in
each case free and clear of all mortgages, liens,
security interests or encumbrances of any nature
whatsoever except Permitted Liens. With respect to
real property or interests in real property, as of the
Closing Date, each of the Company and its Subsidiaries
has (i) fee title to all of the real property listed on
Schedule 5.13 under the heading "Fee Properties" (each,
a "Fee Property"), and (ii) good and valid title to the
leasehold estates in all of the real property leased by
it and listed on Schedule 5.13 under the heading
"Leased Properties" (each, a "Leased Property"), in
each case, free and clear of all mortgages, liens,
security interests, easements, covenants, rights-of-way
and other similar restrictions of any nature
whatsoever, except (A) Permitted Liens and (B) as to
Leased Property, the terms and provisions of the
respective lease therefor, including, without
limitation, the matters set forth on Schedule 5.13, and
any matters affecting the fee title and any estate
superior to the leasehold estate related thereto. The
Fee Properties and the Leased Properties constitute, as
of the Closing Date, all of the real property owned in
fee or leased by the Company and its Subsidiaries.
5.14 ERISA. Neither a Reportable Event nor
an "accumulated funding deficiency" (within the meaning
of Section 412 of the Code or Section 302 of ERISA) has
occurred during the five-year period prior to the date
on which this representation is made or deemed made
with respect to any Plan that would result in a
material liability to the Company, and each Plan has
complied in all material respects with the applicable
provisions of ERISA and the Code. Neither the Company
nor any Commonly Controlled Entity has: been involved
in any transaction that would cause the Company to be
subject to material liability with respect to a Plan to
which the Company or any Commonly Controlled Entity
contributed or was obligated to contribute during the
six-year period ending on the date this representation
is made or deemed made; or incurred any material
liability under Title IV of ERISA which would become or
remain a material liability of the Company after the
Closing Date. No termination of a Single Employer Plan
has occurred, and no Lien in favor of the PBGC or a
Plan has arisen, during such five-year period that
would result in a material liability to the Company.
The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used
to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this
representation is made or deemed made, exceed the value
of the assets of such Plan allocable to such accrued
benefits that would result in a material liability to
the Company. Neither the Company nor any Commonly
Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan, and neither the
Company nor any Commonly Controlled Entity would become
subject to any liability under ERISA if the Company or
any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which
this representation is made or deemed made, in either
case that would result in a material liability to the
Company. To the knowledge of the Company, no such
Multiemployer Plan is in Reorganization or Insolvent.
The present value (determined using actuarial and other
assumptions which are reasonable in respect of the
benefits provided and the employees participating) of
the liability of the Company and each Commonly
Controlled Entity for post retirement benefits to be
provided to their current and former employees under
Plans which are welfare benefit plans (as defined in
Section 3(1) of ERISA) does not, in the aggregate,
exceed the assets under all such Plans allocable to
such benefits by an amount that would result in a
material liability to the Company, except as disclosed
in the Company's audited financial statement provided
to the Lenders prior to the Closing Date. For purposes
of this subsection 5.14, a material liability shall
exceed $10,000,000.
5.15 Collateral Documents. (a) Upon
execution and delivery thereof by the parties thereto,
each of the Pledge Agreements will be effective to
create in favor of the Administrative Agent, for the
ratable benefit of the Lenders, a legal, valid and
enforceable security interest in the pledged stock
described therein and, when stock certificates
representing or constituting the pledged stock
described in each of the Pledge Agreements are
delivered to the Administrative Agent, such security
interest shall constitute a perfected first lien on,
and security interest in, all right, title and interest
of the pledgor party thereto in the pledged stock
described therein.
(b) Upon execution and delivery thereof
by the parties thereto, each of the Security
Agreements will be effective to create in favor of
the Administrative Agent, for the ratable benefit
of the Lenders, a legal, valid and enforceable
security interest in the collateral described
therein, and Uniform Commercial Code financing
statements have been filed in each of the
jurisdictions listed on Schedule 5.15(b), or
arrangements have been made for such filing in
such jurisdictions, and upon such filing, and upon
the taking of possession by the Administrative
Agent of any such collateral the security
interests in which may be perfected only by
possession, such security interests will, subject
to the existence of Permitted Liens, constitute
perfected first priority liens on, and security
interests in, all right, title and interest of the
debtor party thereto in the collateral described
therein, except to the extent that a security
interest cannot be perfected therein by the filing
of a financing statement or the taking of
possession under the Uniform Commercial Code of
the relevant jurisdiction.
(c) Upon execution and delivery thereof
by the Company, each Mortgage will be effective to
create in favor of the Administrative Agent, for
the ratable benefit of the Lenders, a legal, valid
and enforceable security interest in the
collateral described therein, and upon recording
the Mortgages in the jurisdictions listed on
Schedule 5.13 (or, in the case of a Mortgage
delivered pursuant to subsection 7.9, the
jurisdiction in which the property covered by such
Mortgage is located), such security interests
will, subject to the existence of Permitted Liens,
constitute first liens on, and perfected security
interests in, all rights, title and interest of
the debtor party thereto in the collateral
described therein.
5.16 Copyrights, Patents, Permits,
Trademarks and Licenses. Schedule 5.16 sets forth a
true and complete list as of the Closing Date of all
material trademarks (registered or unregistered), trade
names, service marks, patents, pending patent
applications and copyrights and applications therefor
owned, used or filed by or licensed to the Company and
its Subsidiaries (after giving effect to the Merger)
and, with respect to registered trademarks (if any),
contains a list of all jurisdictions in which such
trademarks are registered or applied for and all
registration and application numbers. Except as set
forth on Schedule 5.16, the Company or a Subsidiary
(after giving effect to the Merger) owns or has the
right to use, trademarks (registered or unregistered),
trade names, service marks, patents, pending patent
applications and copyrights and applications therefor
referred to in such Schedule. Except as set forth on
Schedule 5.16, to the best knowledge of the Company, no
claims are pending by any Person with respect to the
ownership, validity, enforceability or the Company's or
any Subsidiary's use of any such trademarks (registered
or unregistered), trade names, service marks, patents,
pending patent applications and copyrights, or
applications therefor, challenging or questioning the
validity or effectiveness of any of the foregoing, in
any jurisdiction, domestic or foreign, except to the
extent such claims could not reasonably be expected to
have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
5.17 Environmental Matters. Except insofar
as any exceptions to the following, individually or in
the aggregate, could not reasonably be expected to
result in a material adverse effect on the business,
assets, conditions (financial or otherwise) or
operations of the Company and its Subsidiaries taken as
a whole:
(a) to the best knowledge of the Company, the
properties owned, leased, or otherwise operated by
the Company or any of its Subsidiaries do not
contain, and have not previously contained, in, on
or under, including, without limitation, the soil
and groundwater thereunder, any Hazardous
Materials in amounts or concentrations that
constitute or constituted a violation of, or could
reasonably give rise to liability under,
Environmental Laws;
(b) to the best knowledge of the Company, the
properties owned or leased, or otherwise operated
by the Company or any of its Subsidiaries and all
operations and facilities at such properties are
in compliance with all Environmental Laws, and
there is no contamination or violation of any
Environmental Law which could interfere with the
continued operation of, or impair the fair
saleable value of, such property;
(c) neither the Company nor any of its
Subsidiaries has received or is aware of any
written complaint, notice of violation, alleged
violation, or notice of investigation or of
potential liability under Environmental Laws with
regard to the Company or its Subsidiaries, nor
does the Company or any of its Subsidiaries have
knowledge that any such action is being
contemplated, considered or threatened;
(d) to the best knowledge of the Company,
Hazardous Materials have not been generated,
treated, stored or disposed of at, on or under any
properties presently or formerly owned, leased, or
otherwise operated by the Company or any of its
Subsidiaries, nor have any Hazardous Materials
been transported from any such property, or come
to be located at any other property, in violation
of or in a manner that could reasonably give rise
to liability under any Environmental Laws; and
(e) there are no governmental administrative
actions or judicial proceedings pending or, to the
best knowledge of the Company and its
Subsidiaries, threatened under any Environmental
Law to which the Company or any of its
Subsidiaries is a party, nor are there any consent
decrees or other decrees, consent orders,
administrative orders or other orders, or other
administrative or judicial requirements, other
than permits authorizing operations by the Company
or any of its Subsidiaries, outstanding under any
Environmental Law.
5.18 Accuracy and Completeness of
Information. The factual statements contained in the
financial statements referred to in subsection 5.1, the
Form S-4, the 1996 Form 10-K, the Credit Documents
(including the schedules thereto), the Merger Agreement
and any other certificates or documents furnished or to
be furnished to the Administrative Agent or the Lenders
from time to time in connection with this Agreement,
taken as a whole, do not and will not, to the best
knowledge of the Company, as of the date when made,
contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements contained therein not misleading in light of
the circumstances in which the same were made, all
except as otherwise qualified herein or therein, such
knowledge qualification being given only with respect
to factual statements made by Persons other than the
Company or any of its Subsidiaries.
5.19 AcquisitionCo. To the best knowledge
of the Company, AcquisitionCo is a Delaware corporation
organized on behalf of the Investors to effect the
Merger and has not carried on any activities, incurred
any liabilities, assumed any obligations or acquired
any assets prior to the Closing Date other than those
incident to its formation and the transactions
contemplated by the Merger Agreement or by the Credit
Documents.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Loans and Letters
of Credit. The obligation of each Lender to make its
Loans, and the obligation of the Issuing Lender to
issue any Letter of Credit, on the Closing Date are
subject to the satisfaction, or waiver by such Lender,
immediately prior to or concurrently with the making of
such Loans or the issuance of such Letters of Credit,
as the case may be, of the following conditions:
(a) Agreement; Notes; Merger Agreement. The
Administrative Agent shall have received (i) a
counterpart of this Agreement for each Lender duly
executed and delivered by a duly authorized
officer of the Company, (ii) for the account of
each Revolving Credit Lender requesting the same
pursuant to subsection 4.13, a Revolving Credit
Note of the Company conforming to the requirements
hereof and executed by a duly authorized officer
of the Company, (iii) for the account of each Term
Loan Lender requesting the same pursuant to
subsection 4.13, a Term Loan Note, conforming to
the requirements hereof and executed by a duly
authorized officer of the Company, and (iv) for
the account of Chase, a Swing Line Note,
conforming to the requirements hereof and executed
by a duly authorized officer of the Company. The
Administrative Agent shall have received a copy of
the Merger Agreement.
(b) Merger. (i) The Merger shall be
consummated simultaneously pursuant to the Merger
Agreement with all fees, costs and expenses
incurred in connection therewith not to exceed
approximately $60,000,000, all of the conditions
precedent set forth in Article VI of the Merger
Agreement shall have been satisfied or waived by
the Company and no material provision of the
Merger Agreement shall have been amended,
supplemented, waived or otherwise modified by the
Company without the prior written consent of the
Administrative Agent, which consent shall not be
unreasonably withheld.
(ii) No more than $585,000,000 exclusive of fees
and expenses (which amount includes (i) the value
attributable to common stock of the Company retained by
the Existing Shareholders and (ii) the maintenance of a
Receivables Facility) shall be expended to repurchase
shares of the Company's common stock from existing
holders thereof and to refinance existing Indebtedness.
(c) Capitalization; Capital Structure (i)
(y) The Company shall have been capitalized by
the Investors (directly or indirectly through
AcquisitionCo) with at least $134,600,000 in cash
from the issuance of its common stock as described
in the Form S-4 (or otherwise having material
terms satisfactory to the Arranger and
representing at least 85% of the voting Capital
Stock of the Company) and (z) the value of the
common stock of the Company held by Existing
Shareholders (valued at a price per share equal to
the price at which the Investors purchased their
common stock), when added to the amount referred
to in clause (y) above, shall equal at least
$152,800,000.
(ii) The Company shall have received at
least $245,000,000 in gross cash proceeds from the
issuance by the Company of either (y) Bridge
Subordinated Debt pursuant to a Bridge Loan
Agreement executed and delivered by the parties
thereto in form and substance satisfactory to the
Lenders, which Bridge Loan Agreement shall be in
full force and effect and none of the provisions
thereof shall have been amended, waived,
supplemented or otherwise modified without the
prior written consent of the Administrative Agent;
or (z) Permanent Subordinated Debt.
(iii) An amendment to the Company's
existing Receivables Facility, increasing such
facility to an aggregate amount of approximately
$100,000,000 on terms and conditions reasonably
satisfactory to the Administrative Agent shall be
in effect.
(iv) The terms, conditions and
documentation of all equity securities of the
Company or any of its Subsidiaries to be
outstanding at or after the Closing Date, the
certificate of incorporation, by-laws, other
governing documents and the corporate and capital
structure of the Company and its Subsidiaries
(excluding the identity and amount of equity
contribution of any Investor), in each case after
giving effect to the consummation of the Merger,
shall be in form and substance satisfactory to the
Administrative Agent. All of the existing
Indebtedness of the Company and its Subsidiaries
(except for (i) a Receivables Facility, and (ii)
certain industrial revenue bonds and Financing
Leases in an amount not to exceed $4,000,000)
shall have been repaid on terms reasonably
satisfactory to the Administrative Agent.
The execution and delivery of this Agreement by the
Lenders and the Administrative Agent shall be deemed to
evidence the satisfaction of the Lenders and the
Administrative Agent with such of the matters
referenced and in clauses (i) through (iv) of this
paragraph (c) as shall have been disclosed and made
available to the Administrative Agent prior to the date
hereof.
(d) Financial Statements. (i) The Lenders
shall have received audited consolidated financial
statements of the Company for its two most
recently completed fiscal years, which financial
statements shall have been prepared in accordance
with GAAP; (ii) the Lenders shall have received
unaudited interim consolidated financial
statements of the Company for the quarterly period
ended as of March 31, 1997 and the monthly period
ended as of April 30, 1997 and such financial
statements shall not reflect any material adverse
change in the consolidated financial condition of
the Company as reflected in the financial
statements or projections previously delivered to
the Lenders, other than as disclosed in the Form S-
4 and 1996 Form 10-K; and (iii) the Lenders shall
have received a satisfactory pro forma balance
sheet on a consolidated basis of the Company and
its Subsidiaries as of April 30, 1997 reflecting
and giving effect to the Merger and the other
transactions contemplated hereby.
(e) Fees. The Administrative Agent, the
Arranger and the Lenders shall have received all
fees, expenses and other consideration presented
for payment required to be paid or delivered on or
before the Closing Date.
(f) Lien Searches; Lien Perfection. (i) The
Administrative Agent shall have received the
results of a search of Uniform Commercial Code,
tax and judgment filings made with respect to each
of the Company and its Subsidiaries in the
jurisdictions set forth on Schedule 5.15(b),
together with copies of financing statements
disclosed by such searches and such searches shall
disclose no Liens on any assets encumbered by any
Security Document, except for Liens permitted
hereunder or, if unpermitted Liens are disclosed,
the Administrative Agent shall have received
satisfactory evidence of the release of such Liens
and (ii) the Administrative Agent shall have
received duly executed financing statements on
Form UCC-1, necessary or, in the opinion of the
Administrative Agent, desirable to perfect the
Liens created by the Security Documents.
(g) Environmental. The Lenders shall be
reasonably satisfied, based upon the results of
the environmental diligence conducted by the
Administrative Agent and its advisors in
cooperation with the Company, with respect to
environmental hazards, conditions or liabilities
to which the Company or any of its Subsidiaries
may be subject (the execution and delivery of this
Agreement by the Lenders and the Administrative
Agent being deemed to evidence the satisfaction of
the Administrative Agent with such due diligence
as shall have been disclosed and made available to
the Administrative Agent prior to the date hereof)
along with letters from the firms preparing any
reports in connection therewith in the case of
Phase I environmental assessment reports
concerning facilities of the Company or its
Subsidiaries in Walnut, California, Holland,
Michigan and Perrysville, Ohio prepared in
anticipation of the Closing Date entitling the
Administrative Agent and each Lender to rely on
such reports as if prepared for and addressed to
each of them.
(h) Pledge Agreements. The Administrative
Agent shall have received the Company Pledge
Agreement and the Subsidiary Pledge Agreement
executed and delivered by a duly authorized
officer of the parties thereto, together with
stock certificates representing 100% of all issued
and outstanding shares of Capital Stock of each of
the Domestic Subsidiaries of the Company except
for any Receivables SPV, and undated stock powers
for each certificate, executed in blank and
delivered by a duly authorized officer of the
applicable pledgor and the acknowledgment and
consent of the issuer thereunder in the form
annexed thereto.
(i) Company Security Agreement. The
Administrative Agent shall have received the
Company Security Agreement, executed and delivered
by a duly authorized officer of the Company.
(j) Subsidiary Guarantee. The Administrative
Agent shall have received a Subsidiary Guarantee,
executed and delivered by a duly authorized
officer of each of the Domestic Subsidiaries of
the Company except for any Receivables SPV.
(k) Subsidiary Security Agreement. The
Administrative Agent shall have received a
Security Agreement, executed and delivered by a
duly authorized officer of each of the Domestic
Subsidiaries of the Company except for any
Receivables SPV.
(l) Legal Opinion. The Administrative Agent
shall have received, dated the Closing Date and
addressed to the Administrative Agent and the
Lenders, an opinion of (i) Gibson, Dunn & Crutcher
LLP, counsel to the Credit Parties, in
substantially the form of Exhibit K-1, with such
changes thereto as may be approved by the
Administrative Agent and its counsel and (ii) the
general counsel to the Company, in substantially
the form of Exhibit K-2, with such changes thereto
as may be approved by the Administrative Agent and
its counsel.
(m) Closing Certificate. The Administrative
Agent shall have received a Closing Certificate of
each Credit Party dated the Closing Date, in
substantially the form of Exhibits L-1 and L-2,
respectively, with appropriate insertions and
attachments, in form and substance satisfactory to
the Administrative Agent and its counsel, executed
by the President or any Vice President and the
Secretary or any Assistant Secretary of the
Company and its Subsidiaries, respectively.
(n) Solvency Opinion. The Administrative
Agent shall have received an opinion or opinions
of Murray, Devine & Co. in form and substance
satisfactory to it which shall document the
solvency of the Company and its Subsidiaries after
giving effect to the consummation of the Merger
and the other transactions and related financings
contemplated hereby.
(o) Insurance. The Administrative Agent
shall have received (i) a schedule describing all
insurance maintained by the Company and its
Subsidiaries pursuant to subsection 7.5, and (ii)
binders (or other customary evidence as to the
obtaining and maintenance by the Company of such
insurance) for each policy set forth on such
schedule insuring against casualty and other usual
and customary risks.
(p) Existing Credit Agreement. (i) On the
Closing Date, the commitments under the Existing
Credit Agreement shall have been terminated, all
loans thereunder shall have been repaid in full,
together with interest thereon, all letters of
credit issued thereunder shall have been
terminated or incorporated hereunder as, or
supported hereunder by, Letters of Credit, and all
other amounts owing pursuant to the Existing
Credit Agreement shall have been repaid in full,
and the Administrative Agent shall have received
evidence in form, scope and substance reasonably
satisfactory to it that the matters set forth in
this subsection have been satisfied at such time.
(ii) On the Closing Date, the creditors under
the Existing Credit Agreement shall have
terminated and released all Liens on the capital
stock of and assets owned by the Company and its
Subsidiaries, and the Administrative Agent shall
have received all such releases as may have been
requested by the Administrative Agent, which
releases shall be in form and substance reasonably
satisfactory to the Administrative Agent.
(q) Other Agreements. The Administrative
Agent shall have received each additional document
or instrument reasonably requested by the Required
Lenders.
(r) Litigation. On the Closing Date, other
than as disclosed in the Form S-4 or the 1996 Form
10-K, there shall be no actions, suits,
injunctions, restraining orders or proceedings
pending or threatened against any Credit Party (a)
with respect to this Agreement or any other Credit
Document or the transactions contemplated hereby
or thereby (including the Merger) which would be
reasonably expected to have a material adverse
effect on the rights or remedies of the Lenders
under the Credit Documents or on the ability of
any Credit Party to perform its respective
obligations to the Lenders hereunder or under any
other Credit Document or (b) which the
Administrative Agent or the Required Lenders shall
determine could reasonably be expected to have a
material adverse effect on the rights or remedies
of the Lenders hereunder or under any other Credit
Document or on the ability of any Credit Party to
perform its respective obligations to the Lenders
hereunder or under any other Credit Document.
(s) Consents, Approvals and Filings. Except
for the financing statements contemplated by the
Security Agreements and the Mortgages, on the
Closing Date, all necessary governmental and other
third party authorizations, consents, approvals or
waivers required in connection with the execution,
delivery and performance by the Credit Parties,
and the validity and enforceability against the
Credit Parties, of the Credit Documents to which
any of them is a party, or otherwise in connection
with the transactions contemplated by the Credit
Documents and the Merger Agreement, shall have
been obtained or made and remain in full force and
effect (except where the failure to do so would
not reasonably be expected to have a material
adverse effect on (x) the business, operations,
property, condition (financial or otherwise) of
the Company and its Subsidiaries, taken as a
whole, or (y) (I) the validity or enforceability
of this Agreement, any of the Notes or the other
Credit Documents or (II) the rights or remedies of
the Administrative Agent or the Lenders hereunder
or thereunder), and all applicable waiting periods
shall have expired without any action being taken
by any competent authority which restrains or
prevents such transactions or imposes materially
adverse conditions upon the consummation of such
transactions.
(t) Contractual Restrictions. The Company
and its Subsidiaries shall not be subject to any
material contractual or other restrictions that
would be violated by the Merger or the other
transactions hereby, including the granting of
security interests and guarantees and the payment
of dividends by Subsidiaries.
6.2 Conditions to All Loans and Letters of
Credit. The obligation of each Lender to make any Loan
(other than any Revolving Credit Loan the proceeds of
which are to be used to repay Refunded Swing Line
Loans) and the obligation of the Issuing Lender to
issue any Letter of Credit is subject to the
satisfaction of the following conditions precedent on
the relevant Borrowing Date:
(a) Representations and Warranties. Each of
the representations and warranties made in or
pursuant to Section 5 or which are contained in
any other Credit Document shall be true and
correct in all material respects on and as of the
date of such Loan or of the issuance of such
Letter of Credit as if made on and as of such date
(unless stated to relate to a specific earlier
date, in which case, such representations and
warranties shall be true and correct in all
material respects as of such earlier date).
(b) No Default or Event of Default. No
Default or Event of Default shall have occurred
and be continuing on such Borrowing Date or after
giving effect to such Loan to be made or such
Letter of Credit to be issued on such Borrowing
Date.
Each borrowing by the Company hereunder and the issuance of
each Letter of Credit by the Issuing Lender hereunder shall
constitute a representation and warranty by the Company as
of the date of such borrowing or issuance that the
conditions in clauses (a) and (b) and of this subsection 6.2
have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect, any Loan, Note or L/C
Obligation remains outstanding and unpaid, any amount
(unless cash in an amount equal to such amount has been
deposited to a cash collateral account established by the
Administrative Agent) remains available to be drawn under
any Letter of Credit or any other amount is owing to any
Lender or the Administrative Agent hereunder or under any of
the other Credit Documents, it shall, and, in the case of
the agreements contained in subsections 7.3 through 7.6, and
7.8 through 7.9, the Company shall cause each of its
Subsidiaries to:
7.1 Financial Statements. Furnish to the
Administrative Agent (with sufficient copies for each
Lender which the Administrative Agent shall promptly
furnish to each Lender):
(a) as soon as available, but in any event
within 95 days after the end of each fiscal year
of the Company, a copy of the consolidated balance
sheet of the Company and its consolidated
Subsidiaries as at the end of such fiscal year and
the related consolidated statements of
stockholders' equity and cash flows and the
consolidated statements of income of the Company
and its Subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures
for the previous year and, in the case of the
consolidated balance sheet referred to above,
reported on, without a "going concern" or like
qualification or exception, or qualification
arising out of the scope of the audit, or
qualification which would affect the computation
of financial covenants, by independent certified
public accountants of nationally recognized
standing;
(b) as soon as available, but in any event
not later than 50 days after the end of each of
the first three quarterly periods of each fiscal
year of the Company, the unaudited consolidated
balance sheet of the Company and its Subsidiaries
as at the end of each such quarter and the related
unaudited consolidated statements of income and
cash flows of the Company and its Subsidiaries for
such quarterly period and the portion of the
fiscal year of the Company through such date,
setting forth in each case in comparative form the
figures for the corresponding quarter in, and year
to date portion of, the previous year, and the
figures for such periods in the budget prepared by
the Company and furnished to the Administrative
Agent, certified by the chief financial officer,
controller or treasurer of the Company as being
fairly stated in all material respects;
(c) as soon as available, but in any event
not later than 45 days after the beginning of each
fiscal year of the Company to which such budget
relates, a preliminary consolidated operating
budget for the Company and its Subsidiaries taken
as a whole; and as soon as available, any material
revision to or any final revision of any such
preliminary annual operating budget or any such
consolidated operating budget; and
(d) concurrently with the delivery of
financial statements pursuant to subsection 7.1(a)
or (b), a certificate of the chief financial
officer or treasurer of the Company setting forth,
in reasonable detail, the computations of Capital
Expenditures as of the last day of the fiscal
period covered by such financial statements, the
ratio of Consolidated Funded Indebtedness to
Consolidated EBITDA as of such last day, and the
Interest Coverage Ratio as of such last day;
all such financial statements to be complete and correct in
all material respects (subject, in the case of interim
statements, to normal year-end audit adjustments) and to be
prepared in reasonable detail and (except in the case of the
statements referred to in paragraphs (c) and (d) of this
subsection 7.1) in accordance with GAAP.
7.2 Certificates; Other Information.
Furnish to the Administrative Agent (with sufficient
copies for each Lender which the Administrative Agent
shall promptly deliver to each Lender):
(a) concurrently with the delivery of the
consolidated financial statements referred to in
subsection 7.1(a), a letter from the independent
certified public accountants reporting on such
financial statements stating that in making the
examination necessary to express their opinion on
such financial statements no knowledge was
obtained of any Default or Event of Default under
subsections 4.4(b), 8.1, 8.3, and 8.5 through
8.11, except as specified in such letter;
(b) within 15 days of the delivery of the
financial statements referred to in subsections
7.1(a) and (b) (except that the certificate
referred to in clause (iii) below shall be
delivered concurrently with such financial
statements), a certificate of the chief financial
officer or treasurer of the Company stating that,
to the best of such officer's knowledge, during
such period (i) no Subsidiary has been formed or
acquired (or, if any such Subsidiary has been
formed or acquired, the Company has complied with
the requirements of subsection 7.9 with respect
thereto), (ii) neither the Company nor any of its
Subsidiaries has changed its name, its principal
place of business, its chief executive office or
the location of any material item of tangible
Collateral without complying with the requirements
of this Agreement and the Security Documents with
respect thereto, (iii) each of the Company and its
Subsidiaries has observed or performed all of its
respective covenants and other agreements, and
satisfied every material condition, contained in
this Agreement, the Notes and the other Credit
Documents to be observed, performed or satisfied
by it, and that such officer has obtained no
knowledge of any Default or Event of Default
except as specified in such certificate, (iv)
showing in detail as of the end of the related
fiscal period the figures and calculations
supporting such statement in respect of clause (e)
of subsection 8.1, clauses (b) and (e) of
subsection 8.3 and subsections 8.6 through 8.11
and any other calculations reasonably requested by
the Administrative Agent with respect to the
quantitative aspects of the other covenants
contained herein, (v) if not specified in the
financial statements delivered pursuant to
subsection 7.1, specifying the aggregate amount of
interest paid or accrued by the Company and its
Subsidiaries, and the aggregate amount of
depreciation, depletion and amortization charged
on the books of the Company and its Subsidiaries,
during such accounting period, and (vi) identify
any owned Real Property of the Company or a
Domestic Subsidiary acquired during such
accounting period that, together with any
improvements thereon, has a value of at least
$5,000,000;
(c) promptly upon receipt thereof, copies of
all final reports submitted to the Company or to
any of its Subsidiaries by independent certified
public accountants in connection with each annual,
interim or special audit of the books of the
Company or any of its Subsidiaries made by such
accountants, and, upon the request of any Lender
(through the Administrative Agent), any final
comment letter submitted by such accountants to
management in connection with their annual audit;
(d) promptly upon their becoming available,
copies of all financial statements, reports,
notices and proxy statements sent or made
available to the public generally by the Company
or any of its Subsidiaries, if any, and all
regular and periodic reports and all final
registration statements and final prospectuses, if
any, filed by the Company or any of its
Subsidiaries with any securities exchange or with
the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its
functions;
(e) concurrently with the delivery of the
financial statements referred to in subsections
7.1(a) and (b), a management summary describing
and analyzing the performance of the Company and
its Subsidiaries during the periods covered by
such financial statements;
(f) within 50 days after the end of each
fiscal quarter, a summary of all Asset Sales
during such fiscal quarter including the amount of
all Net Proceeds from such Asset Sales not
previously applied to prepayments of the Loans and
reductions of the Commitments pursuant to the
proviso to subsection 4.4(b)(iii); and
(g) promptly, such additional financial and
other information as any Lender may from time to
time reasonably request (through the
Administrative Agent).
7.3 Payment of Obligations. Pay, discharge
or otherwise satisfy at or before maturity or before
they become delinquent, as the case may be, all its
obligations and liabilities of whatever nature, except
(a) when the amount or validity thereof is currently
being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with
respect thereto have been provided on the books of the
Company or any of its Subsidiaries, as the case may be,
(b) for delinquent obligations which do not have a
material adverse effect on the business, assets,
condition (financial or otherwise) or results of
operations of the Company and its Subsidiaries taken as
a whole and (c) for trade and other accounts payable in
the ordinary course of business which are not overdue
for a period of more than 90 days or, if overdue for
more than 90 days, as to which a dispute exists and
adequate reserves in conformity with GAAP have been
established on the books of the Company or any of its
Subsidiaries, as the case may be.
7.4 Conduct of Business and Maintenance of
Existence. Continue to engage in businesses of the
same general type as now conducted by it (after giving
effect to the Merger), and preserve, renew and keep in
full force and effect its corporate existence and take
all reasonable action to maintain all material rights,
material privileges, franchises, copyrights, patents,
trademarks and trade names necessary or desirable in
the normal conduct of its business except for rights,
privileges, franchises, copyrights, patents, trademarks
and tradenames the loss of which would not in the
aggregate have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole, and except as otherwise
permitted by subsections 8.4 and 8.5; and comply with
all applicable Requirements of Law except to the extent
that the failure to comply therewith would not, in the
aggregate, have a material adverse effect on the
business, assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole.
7.5 Maintenance of Property; Insurance. (a)
Keep all property useful and necessary in its business
in good working order and condition (ordinary wear and
tear excepted); and
(b) Maintain with financially sound and
reputable insurance companies insurance on all its
property in at least such amounts and with only
such deductibles as are usually maintained by, and
against at least such risks (but including, in any
event, public liability insurance) as are usually
insured against in the same general area by,
companies engaged in the same or a similar
business, and furnish to each Lender, (i)
annually, a schedule disclosing (in a manner
substantially similar to that used in the schedule
provided pursuant to subsection 6.1(o)) all
insurance against products liability risk
maintained by the Company and its Subsidiaries
pursuant to this subsection 7.5(b) or otherwise
and (ii) upon written request of any Lender, full
information as to the insurance carried; provided
that the Company may implement programs of self
insurance in the ordinary course of business and
in accordance with industry standards for a
company of similar size so long as reserves are
maintained in accordance with GAAP for the
liabilities associated therewith.
7.6 Inspection of Property; Books and
Records; Discussions. Keep proper books of record and
account in which full, true and correct entries are
made of all dealings and transactions in relation to
its business and activities which permit financial
statements to be prepared in conformity with GAAP and
all Requirements of Law; and permit representatives of
any Lender upon reasonable notice (made through the
Administration Agent and no more frequently than
quarterly unless a Default or Event of Default shall
have occurred and be continuing) to visit and inspect
any of its properties and examine and make abstracts
from any of its books and records at any reasonable
time and as often as may reasonably be requested upon
reasonable notice, and to discuss the business,
operations, assets and financial and other condition of
the Company and its Subsidiaries with officers and
employees thereof and with their independent certified
public accountants with prior reasonable notice to, and
coordination with, the chief financial officer or the
treasurer of the Company.
7.7 Notices. Promptly give notice to the
Administrative Agent (to be distributed by the
Administrative Agent to the Lenders):
(a) of the occurrence of any Default or Event
of Default;
(b) of any (i) default or event of default
under any instrument or other agreement, guarantee
or collateral document of the Company or any of
its Subsidiaries which default or event of default
has not been waived and would have a material
adverse effect on the business, assets, condition
(financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a
whole, or any other default or event of default
under any such instrument, agreement, guarantee or
other collateral document which, but for the
proviso to clause (e) of Section 9, would have
constituted a Default or Event of Default under
this Agreement, or (ii) litigation, investigation
or proceeding which may exist at any time between
the Company or any of its Subsidiaries and any
Governmental Authority, or receipt of any notice
of any environmental claim or assessment against
the Company or any of its Subsidiaries by any
Governmental Authority, which in any such case
would have a material adverse effect on the
business, assets, condition (financial or
otherwise) or results of operations of the Company
and its Subsidiaries taken as a whole;
(c) of any litigation or proceeding against
the Company or any of its Subsidiaries (other than
with respect to Ultravent to the extent previously
disclosed to the Lenders; provided that the
Company shall promptly give notice to the
Administrative Agent of material adverse
developments (in the nature of court decisions) in
any such previously disclosed Ultravent litigation
or proceeding or of any new material litigation or
proceeding) (i) in which more than $5,000,000 of
the amount claimed is not covered by insurance or
(ii) in which injunctive or similar relief is
sought which if obtained would have a material
adverse effect on the business, assets, condition
(financial or otherwise) or results of operations
of the Company and its Subsidiaries taken as a
whole;
(d) of the following events, as soon as
practicable after, and in any event within 30 days
after, the Company knows or has reason to know
thereof: (i) the occurrence of any Reportable
Event with respect to any Plan which Reportable
Event could reasonably result in material
liability to the Company and its Subsidiaries
taken as a whole, or (ii) the institution of
proceedings or the taking of any other action by
PBGC, the Company or any Commonly Controlled
Entity to terminate, withdraw or partially
withdraw from any Plan and, with respect to a
Multiemployer Plan, the Reorganization or
Insolvency of such Plan, in each of the foregoing
cases which could reasonably result in material
liability to the Company and its Subsidiaries
taken as a whole, and in addition to such notice,
deliver to the Administrative Agent and each
Lender whichever of the following may be
applicable: (A) a certificate of a Responsible
Officer of the Company setting forth details as to
such Reportable Event and the action that the
Company or such Commonly Controlled Entity
proposes to take with respect thereto, together
with a copy of any notice of such Reportable Event
that may be required to be filed with PBGC, or (B)
any notice delivered by PBGC evidencing its intent
to institute such proceedings or any notice to
PBGC that such Plan is to be terminated, as the
case may be;
(e) concurrently with the delivery of the
information delivered pursuant to subsection
7.2(f) and each prepayment required pursuant to
subsection 4.4(b)(iii), of any Asset Sale or
substantially like-kind exchange of real property
by the Company or any of its Subsidiaries; and
(f) of a material adverse change known to the
Company or its Subsidiaries in the business,
assets, condition (financial or otherwise) or
results of operations of the Company and its
Subsidiaries taken as a whole.
Each notice pursuant to this subsection 7.7 shall be
accompanied by a statement of a Responsible Officer of the
Company setting forth details of the occurrence referred to
therein and (in the cases of clauses (a) through (d))
stating what action the Company proposes to take with
respect thereto.
7.8 Environmental Laws. (a) (i) Comply with
all Environmental Laws applicable to it, and obtain,
comply with and maintain any and all Environmental
Permits necessary for its operations as conducted and
as planned; and (ii) take reasonable efforts to ensure
that all of its tenants, subtenants, contractors,
subcontractors, and invitees comply with all
Environmental Laws, and obtain, comply with and
maintain any and all Environmental Permits, applicable
to any of them insofar as any failure to so comply,
obtain or maintain could result in a material adverse
effect on the Company and its Subsidiaries taken as a
whole. Noncompliance by the Company or any of its
Subsidiaries with any applicable Environmental Law or
Environmental Permit shall be deemed not to constitute
a breach of this 7.8(a); provided that, upon learning
of any such noncompliance, the Company and its
Subsidiaries shall promptly undertake reasonable
efforts to achieve compliance or to contest by
appropriate proceedings any alleged noncompliance and,
provided, further, that, in any case, such
noncompliance, and any other noncompliance with
Environmental Law and any contesting of allegations of
noncompliance with Environmental Laws, individually or
in the aggregate, could not reasonably be expected to
give rise to a material adverse effect on the Company
and its Subsidiaries taken as a whole.
(b) Comply in a timely manner with all orders and
lawful directives regarding Environmental Laws issued to the
Company or any of its Subsidiaries by any Governmental
Authority, other than such orders and lawful directives as
to which an appeal or other challenge has been timely and
properly taken in good faith and the pendency of any and all
such appeals and other challenges could not reasonably be
expected to give rise to a material adverse effect on the
Company and its Subsidiaries taken as a whole.
(c) Maintain, update as appropriate, and implement
in all material respects an environmental program reasonably
designed to (i) ensure that the Company, its Subsidiaries,
any of their respective operations (including, without
limitation, disposal), and any properties owned, leased or
operated by any of them, attain and remain in substantial
compliance with all applicable Environmental Laws; (ii)
reasonably and prudently manage any liabilities or potential
liabilities that the Company, any of the other Credit
Parties, any of their respective operations (including,
without limitation, disposal), and any properties owned or
leased by any of them, may have under all applicable
Environmental Laws; and (iii) ensure that the Company and
its Subsidiaries undertake reasonable efforts to identify,
and reasonably evaluate, issues of compliance with and
liability under Environmental Laws prior to acquiring,
directly or indirectly, any ownership or leasehold interest
in real property, or other interest in any real property
that could give rise to Company or any of its Subsidiaries
being subjected to liability under any Environmental Law as
a result of such acquisition.
7.9 Additional Collateral. (a) Subject to
subsection 7.9(e), with respect to any assets acquired
after the Closing Date by the Company or any of its
Domestic Subsidiaries that are intended to be subject
to the Lien created by any of the Security Documents
but which are not so subject (but, in any event,
excluding (x) any assets described in paragraph (b) or
(c) of this subsection, (y) immaterial assets and (z)
Receivables Facility Assets), promptly (and in any
event within 30 days after the acquisition thereof):
(i) execute and deliver to the Administrative Agent
such amendments or supplements to the relevant Security
Documents or such other documents as the Administrative
Agent shall deem necessary or advisable to grant to the
Administrative Agent, for the benefit of the Lenders, a
Lien on such assets, and (ii) take all actions
necessary or advisable to cause such Lien to be duly
perfected to the extent required by such Security
Document in accordance with all applicable Requirements
of Law, including, without limitation, the filing of
financing statements in such jurisdictions as may be
reasonably requested by the Administrative Agent.
(b) With respect to any Person that is
or becomes a Subsidiary (other than (y) any
Foreign Subsidiary or (z) any Receivables SPV)
that has material assets, promptly upon the
request of the Administrative Agent: (i) execute
and deliver to the Administrative Agent, for the
benefit of the Lenders, a new pledge agreement or
such amendments to the relevant Pledge Agreement
as the Administrative Agent reasonably shall deem
necessary or advisable to grant to the
Administrative Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such
Subsidiary which is owned by the Company or any of
its Subsidiaries, (ii) deliver to the
Administrative Agent the certificates representing
such Capital Stock, together with undated stock
powers executed and delivered in blank by a duly
authorized officer of the Company or such
Subsidiary, as the case may be, and (iii) cause
such new Subsidiary (A) to become a party to the
Subsidiary Guarantee and the Subsidiary Security
Agreement or such comparable documentation which
is in form and substance reasonably satisfactory
to the Administrative Agent, and (B) to take all
actions necessary or advisable to cause the Lien
created by the Subsidiary Security Agreement to be
duly perfected to the extent required by such
agreement in accordance with all applicable
Requirements of Law, including, without
limitation, the filing of financing statements in
such jurisdictions as may be reasonably requested
by the Administrative Agent.
(c) With respect to any Person that is
or becomes a Foreign Subsidiary and that has
material assets, promptly upon the request of the
Administrative Agent: (i) execute and deliver to
the Administrative Agent a new pledge agreement or
such amendments to the relevant Pledge Agreement
as the Administrative Agent reasonably shall deem
necessary or advisable to grant to the
Administrative Agent, for the benefit of the
Lenders, a Lien on the Capital Stock of such
Subsidiary which is owned by the Company or any of
its Subsidiaries (provided that in no event shall
more than 65% of the Capital Stock of any such
Foreign Subsidiary be required to be so pledged),
(ii) deliver to the Administrative Agent any
certificates representing such Capital Stock,
together with undated stock powers executed and
delivered in blank by a duly authorized officer of
the Company or such Subsidiary, as the case may
be, and take or cause to be taken all such other
actions under the law of the jurisdiction of
organization of such Foreign Subsidiary as may be
necessary or advisable to perfect such Lien on
such Capital Stock, and if requested by the
Administrative Agent, deliver to the
Administrative Agent legal opinions relating to
the matters described in clauses (i) and (ii)
immediately preceding, which opinions shall be in
form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
(d) Within 10 days of the Closing Date,
the Administrative Agent shall have received (i)
fully executed counterparts of deeds of trust,
leasehold deeds of trust, mortgages, leasehold
mortgages and similar documents in each case in
form and substance reasonably satisfactory to the
Administrative Agent and substantially in the form
of Exhibit M (each a "Mortgage" and collectively,
the "Mortgages") covering all the Mortgaged
Properties, and arrangements reasonably
satisfactory to the Administrative Agent shall be
in place to provide that counterparts of such
Mortgages shall be promptly recorded upon
execution in all places to the extent necessary or
desirable, in the reasonable judgment of the
Administrative Agent, effectively to create a
valid and enforceable first priority Lien, subject
only to Permitted Liens, on each Mortgaged
Property in favor of the Administrative Agent (or
such other trustee as may be required or desired
under local law) for the benefit of the Lenders,
(ii) a lender's title insurance policy, paid for
by the Company, issued by a nationally recognized
title insurance company, together with such
endorsements, coinsurance and reinsurance as may
be reasonably requested by the Administrative
Agent, in form and substance reasonably acceptable
to the Administrative Agent, insuring each
Mortgage as a first lien on the relevant Mortgaged
Property and subject only to Liens expressly
agreed to by the Administrative Agent and (iii)
such other documents (including without
limitation, current ALTA/ASCM surveys of any
parcel of Real Property made in accordance with
ALTA/ASCM standards, including Table A, Items Nos.
1-4 and 6-13) as are reasonably required by the
Administrative Agent.
(e) Upon the request of the
Administrative Agent, the Company will, and will
cause its Domestic Subsidiaries to, promptly grant
to the Administrative Agent, within 60 days of
such request, security interests and mortgages (an
"Additional Mortgage") in such owned Real Property
of the Company and its Domestic Subsidiaries as
are acquired after the Closing Date by the Company
or such Subsidiary and that, together with any
improvements thereon, individually have a value of
at least $5,000,000, as additional security for
the obligations of the Credit Parties under any
Credit Document (unless the subject property is
already mortgaged to a third party to the extent
permitted by subsection 8.2). Such Mortgages
shall be granted pursuant to documentation
reasonably satisfactory in form and substance to
the Administrative Agent and shall constitute
valid and enforceable perfected Liens subject only
to Permitted Liens and such other Liens reasonably
acceptable to the Administrative Agent. The
Additional Mortgages or instruments related
thereto shall be duly recorded or filed in such
manner and in such places as are required by law
to establish, perfect, preserve and protect the
Liens in favor of the Administrative Agent
required to be granted pursuant to the Additional
Mortgages and all taxes, fees and other charges
payable in connection therewith shall be paid in
full. If requested by the Administrative Agent or
the Required Lenders, the Company shall provide a
lender's title policy with respect to each such
Additional Mortgage conforming to the requirements
of subsection 7.9(d).
SECTION 8. NEGATIVE COVENANTS
The Company hereby agrees that it shall not, and
the Company shall not permit any of its Subsidiaries to,
directly or indirectly so long as the Commitments remain in
effect or any Loan, Note or L/C Obligation remains
outstanding and unpaid, any amount (unless cash in an amount
equal to such amount has been deposited to a cash collateral
account established by the Administrative Agent) remains
available to be drawn under any Letter of Credit or any
other amount is owing to any Lender or the Administrative
Agent hereunder or under any other Credit Document (it being
understood that each of the permitted exceptions to each of
the covenants in this Section 8 is in addition to, and not
overlapping with, any other of such permitted exceptions
except to the extent expressly provided):
8.1 Indebtedness. Create, incur, assume or
suffer to exist any Indebtedness, except:
(a) the Indebtedness outstanding on the
Closing Date and reflected on Schedule 8.1(a),
including the refinancing of any such Indebtedness
on terms and conditions taken as a whole no less
favorable to the Company and its Subsidiaries or
the Lenders;
(b) Indebtedness consisting of the Loans
and in connection with the Letters of Credit and
this Agreement;
(c) Indebtedness (i) of the Company to
any Subsidiary, (ii) of any Domestic Subsidiary to
the Company or any other Subsidiary; provided that
such Indebtedness referred to in this clause (c),
if to the Company or any Domestic Subsidiary, is
evidenced by a promissory note or promissory notes
which has or have been pledged to the
Administrative Agent on terms and conditions
satisfactory to the Administrative Agent and (iii)
of any Foreign Subsidiary to the Company or any
other Subsidiary in an aggregate principal amount
at any time outstanding not to exceed $25,000,000
plus the sum of any amounts dividended or
distributed to the Company or any Domestic
Subsidiary by any Foreign Subsidiary, less the sum
of (A) the amount of any guarantees of obligations
of Foreign Subsidiaries pursuant to subsection
8.3(c)(ii) and (B) the amount of any investments
made in a Foreign Subsidiary pursuant to
subsection 8.6(b)(iii);
(d) Indebtedness of the Company in
respect of:
(i)(y) up to $247,000,000 principal
amount of Bridge Subordinated Debt issued on
the Closing Date, and additional principal
amount of Bridge Subordinated Debt issued in
lieu of cash interest on the outstanding
Bridge Subordinated Debt and otherwise as
contemplated by the Bridge Loan Agreement
upon exchange of Bridge Subordinated Debt
into exchange notes or (z) up to $145,000,000
principal amount of Senior Subordinated Notes
and up to $170,000,000 principal amount of
Senior Discount Notes, in each case, issued
on the Closing Date; and
(ii) Permanent Subordinated Debt in
an aggregate principal amount not to exceed
the sum of (A) $145,000,000 in aggregate
principal amount of Senior Subordinated Notes
(or any refinancing thereof permitted
hereunder) and 6% of such amount plus (B) the
accreted value of such Senior Discount Notes
(or any refinancing thereof permitted
hereunder) at the time of such refinancing
and 6% of such value, the proceeds (net of
any fees and expenses in connection
therewith) of which shall be applied to
prepay, redeem, retire or repurchase either
(I) the outstanding principal amount of the
Bridge Subordinated Debt or (II) Permanent
Subordinated Debt.
(e) Indebtedness of the Company and its
Subsidiaries for industrial revenue bonds or other
similar governmental and municipal bonds, for the
deferred purchase price of newly acquired property
and to finance equipment of the Company and its
Subsidiaries (pursuant to purchase money mortgages
or otherwise and whether owed to the seller or a
third party) used in the ordinary course of
business (provided such financing is entered into
within 180 days of the acquisition of such
property) of the Company and its Subsidiaries in
an amount (based on the remaining balance of the
obligations therefor on the books of the Company
and its Subsidiaries) which shall not exceed
$25,000,000 in the aggregate at any one time
outstanding and Indebtedness of the Company and
its Subsidiaries in respect of Financing Leases to
the extent subsections 8.7 and 8.10 would not be
contravened;
(f) Indebtedness of the Company and its
Domestic Subsidiaries in an aggregate principal
amount at any one time outstanding not in excess
of $25,000,000;
(g) Indebtedness of the Company or any
of its Subsidiaries pursuant to one or more
Receivables Facilities;
(h) Indebtedness in respect of letters
of credit (other than Letters of Credit issued
hereunder) in an aggregate principal amount equal
to $25,000,000 at any one time outstanding;
(i)(i) Indebtedness assumed in
connection with acquisitions permitted by
subsection 8.6(g) (so long as such Indebtedness
was not incurred in anticipation of such
acquisitions), (ii) Indebtedness of newly acquired
Subsidiaries acquired in such acquisitions (so
long as such Indebtedness was not incurred in
anticipation of such acquisition) and (iii)
Indebtedness owed to the seller in any acquisition
permitted by subsection 8.6(g) constituting part
of the purchase price thereof, all of which
Indebtedness permitted by this subsection 8.1(i)
shall not exceed in the aggregate at any one time
$25,000,000 outstanding;
(j) Indebtedness in connection with
workmen's compensation obligations and general
liability exposure of the Company and its
Subsidiaries;
(k) Additional unsecured subordinated
indebtedness of the Company and its Subsidiaries
provided that (i) such Indebtedness shall not
exceed $10,000,000 in aggregate principal amount
at any time outstanding plus any additional
principal amount of such Indebtedness issued in
lieu of cash interest on such outstanding
Indebtedness or any refinancing thereof, (ii) no
part of the principal amount of such Indebtedness
shall have a maturity date earlier than the
one-year anniversary of the final Installment
Payment Date and (iii) the non-default interest
rate thereon shall not exceed 12% per annum; and
(l) Indebtedness of Foreign Subsidiaries
in an aggregate principal amount at any time
outstanding not in excess of the equivalent at the
date of each incurrence thereof of $25,000,000.
8.2 Limitation on Liens. Create, incur,
assume or suffer to exist any Lien upon any of its
property, assets, income or profits, whether now owned
or hereafter acquired, except:
(a) Liens for taxes, assessments or
other governmental charges not yet delinquent or
which are being contested in good faith and by
appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the
Company or such Subsidiary, as the case may be, in
accordance with GAAP;
(b) carriers', warehousemen's,
mechanics', landlords', materialmen's, repairmen's
or other like Liens arising in the ordinary course
of business in respect of obligations which are
not yet due or which are bonded or which are being
contested in good faith and by appropriate
proceedings if adequate reserves with respect
thereto are maintained on the books of the Company
or such Subsidiary, as the case may be, in
accordance with GAAP;
(c) pledges or deposits in connection
with workmen's compensation, unemployment
insurance and other social security legislation;
(d) deposits to secure the performance
of bids, tenders, trade or government contracts
(other than for borrowed money), leases, licenses,
statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like
nature incurred in the ordinary course of
business;
(e) easements (including, without
limitation, reciprocal easement agreements),
rights-of-way, building, zoning and similar
restrictions, utility agreements, covenants,
reservations, restrictions, encroachments,
changes, and other similar encumbrances or title
defects incurred, or leases or subleases granted
to others, in the ordinary course of business,
which do not in the aggregate materially detract
from the aggregate value of the properties of the
Company and its Subsidiaries, taken as a whole, or
in the aggregate materially interfere with or
adversely affect in any material respect the
ordinary conduct of the business of the Company
and its Subsidiaries on the properties subject
thereto, taken as a whole;
(f) Liens in favor of the Administrative
Agent and the Lenders pursuant to the Credit
Documents, including Liens pursuant to the Credit
Documents in respect of Interest Rate Agreements,
and bankers' liens arising by operation of law;
(g) Liens on property of the Company or
any of its Subsidiaries created solely for the
purpose of securing Indebtedness permitted by
subsection 8.1(e) representing or incurred to
finance, refinance or refund the purchase price of
property, 8.1(i) (so long as in the case of
clauses (i) and (ii) thereof such Lien was not
incurred in anticipation of the related
acquisition), or 8.1(l) provided that no such Lien
incurred in connection with Indebtedness pursuant
to subsection 8.1(e) and 8.1(i) shall extend to or
cover other property of the Company or such
Subsidiary other than the respective property so
acquired, and the principal amount of Indebtedness
secured by any such Lien shall at no time exceed
the original purchase price of such property;
(h) Liens existing on the Closing Date
after giving effect to the consummation of the
Merger and described in subsection 5.13 or
Schedule 8.2(h) (including the extension of any
Liens listed on such Schedule relating to any
Indebtedness permitted under subsection 8.1(a) in
connection with any refinancing of such
Indebtedness permitted by such subsection and any
Liens securing Indebtedness to be repaid on the
Closing Date to the extent the Company has made
arrangements to terminate such Liens in a manner
satisfactory to the Administrative Agent),
provided that no such Lien shall extend to or
cover other property of the Company or the
respective Subsidiary other than the respective
property so encumbered and the principal amount of
Indebtedness secured by any such Lien shall at no
time exceed the original principal amount of the
Indebtedness so secured;
(i) Liens on documents of title and the
property covered thereby securing Indebtedness in
respect of the Commercial L/Cs;
(j)(i) mortgages, liens, security
interests, restrictions, encumbrances or any other
matter of record that have been placed by any
developer, landlord or other third party on
property over which the Company or any Subsidiary
of the Company has easement rights or on any
Leased Property and subordination or similar
agreements relating thereto and (ii) any
condemnation or eminent domain proceedings
affecting any real property;
(k) Liens in connection with workmen's
compensation obligations and general liability
exposure of the Company and its Subsidiaries;
(l) Liens on goods (and proceeds
thereof) securing reimbursement obligations in
respect of commercial letters of credit issued in
accordance with the terms of this Agreement; and
(m) Liens on any Receivables Facility
Assets to secure the repayment of any Indebtedness
incurred under any Receivables Facility permitted
by subsection 8.1(g).
8.3 Limitation on Contingent Obligations.
Create, incur, assume or suffer to exist any Contingent
Obligation except:
(a) the Guarantees;
(b) other guarantees by the Company
incurred in the ordinary course of business for an
aggregate amount not to exceed $5,000,000 at any
one time;
(c) guarantees by the Company or any
Domestic Subsidiary (i) of obligations of Domestic
Subsidiaries of the Company or the Company and
(ii) of obligations of Foreign Subsidiaries of the
Company in an aggregate principal amount not to
exceed $25,000,000 plus the sum of any amounts
dividended or distributed to the Company or any
Domestic Subsidiary by such Foreign Subsidiaries,
less any amounts outstanding in accordance with
subsections 8.1(c)(iii) and 8.6(b)(iii).
(d) Contingent Obligations existing on
the Closing Date and described in Schedule 8.3(d)
and Contingent Obligations relating to any
Indebtedness permitted under subsection 8.1(a);
(e) guarantees of obligations to third
parties in connection with relocation of employees
of the Company or any of its Subsidiaries, in an
amount which, together with all loans and advances
made pursuant to subsection 8.6(f), shall not
exceed $5,000,000 at any time outstanding;
(f) Contingent Obligations in connection
with workmen's compensation obligations and
general liability exposure of the Company and its
Subsidiaries; and
(g) subordinated guarantees in respect
of the Subordinated Debt issued by Subsidiaries of
the Company which have also issued Guarantees,
provided that such subordinated guarantees are
subordinated to the Guarantees on substantially
the same basis as the Subordinated Debt is
subordinated to the Loans.
8.4 Prohibition of Fundamental Changes.
Enter into any merger or consolidation or amalgamation,
or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or engage in any type of
business other than of the same general type now
conducted by it, except (a) for the transactions
otherwise permitted pursuant to clause (b) of
subsection 8.5, (b) any Subsidiary of the Company may
be merged with and into the Company or a wholly-owned
Domestic Subsidiary of the Company, (c) Subsidiaries
with a net book value not greater than $100,000 may be
dissolved and (d) any Subsidiary may otherwise be
dissolved; provided that upon dissolution, the assets
of such Subsidiary are transferred to the Company or a
wholly-owned Domestic Subsidiary of the Company on the
terms and subject to the conditions set forth in
subsection 8.5(b).
8.5 Prohibition on Sale of Assets. Convey,
sell, lease (other than a sublease of real property),
assign, transfer or otherwise dispose of (including
through a transaction of merger or consolidation of any
Subsidiary of the Company) any of its property,
business or assets (including, without limitation,
other payments and receivables but excluding leasehold
interests), whether now owned or hereafter acquired,
except:
(a) for sales or other dispositions of
inventory in the ordinary course of business;
(b) that the Company or any Subsidiary
of the Company may sell, lease, transfer or
otherwise dispose of any or all of its assets
(upon voluntary liquidation or otherwise) to, and
any Subsidiary of the Company may merge with and
into, the Company or a wholly-owned Domestic
Subsidiary of the Company, and the Company or any
Subsidiary of the Company may sell or otherwise
dispose of, or part with control of any or all of,
the Capital Stock of any Subsidiary to a
wholly-owned Domestic Subsidiary of the Company or
the Company, provided that no such transaction may
be effected if it would result in the transfer of
any assets of, or any Capital Stock of, the
Company or a Subsidiary to, or the merger with and
into, another Subsidiary all of the Capital Stock
of which owned by the Company or any Subsidiary
has not been pledged to the Administrative Agent
and which has not guaranteed the obligations of
the Company, for the benefit of the Lenders, under
the Notes and this Agreement, and granted liens or
security interests in favor of the Administrative
Agent, for the benefit of the Lenders, on
substantially all of its assets to secure such
guarantee, pursuant to a guarantee, security
agreement and other documentation reasonably
satisfactory to the Administrative Agent;
(c) leases of Fee Properties and other
real property owned in fee;
(d) any condemnation or eminent domain
proceedings affecting any real property, provided
that the parties hereto agree that the net
proceeds received in connection with such
proceeding shall be deemed not to constitute "Net
Proceeds" if such net proceeds are reinvested in
new or existing properties within eighteen months;
(e) substantially like-kind exchanges of
real property; provided that only any cash
received by the Company or any Subsidiary of the
Company in connection with such an exchange (net
of all costs and expenses incurred in connection
with such transaction or with the commencement of
operation of real property received in such
exchange) shall be deemed to be Net Proceeds and
shall be applied as provided for in subsection
4.4(b)(iii);
(f) for the sale or other disposition of
any property that, in the reasonable judgment of
the Company has become uneconomic, obsolete or
worn out, and which is sold or disposed of in the
ordinary course of business;
(g) for the sale or other disposition of
any property the aggregate amount of the net
proceeds received in respect of which shall not
exceed $7,500,000 during the term of this
Agreement;
(h) the sale, encumbrance or other
disposition at any time or from time to time of
Receivables Facility Assets; and
(i) any sale or disposition of any
interest in real property; provided that (i) the
net proceeds of any such sale shall constitute Net
Proceeds only to the extent such net proceeds are
not reinvested in real property within twelve
months from the date of such sale, (ii) if the
real property so sold constituted Collateral under
the Security Documents then any real property
purchased with the net proceeds thereof shall be
mortgaged for the benefit of the Lenders if
required by subsection 7.9(e) and in accordance
therewith and (iii) the aggregate outstanding
amount of net proceeds held by the Company at any
time for reinvestment in respect of any real
property sold pursuant to this paragraph shall not
exceed $15,000,000.
8.6 Limitation on Investments, Loans and
Advances. Make any advance, loan, extension of credit
or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of, or
make any other investment in (including, without
limitation, any acquisition of all or any substantial
portion of the assets, and any acquisition of a
business or a product line, of other companies, other
than the acquisition of inventory in the ordinary
course of business), any Person (except to the extent
permitted by Section 8.7), except:
(a) the Company may make loans or
advances to any Domestic Subsidiary, and any
Subsidiary may make loans or advances to the
Company or any Domestic Subsidiary, to the extent
in each case the Indebtedness created thereby is
permitted by subsection 8.1(c);
(b)(i) any Subsidiary may make
investments in the Company (by way of capital
contribution or otherwise), (ii) the Company and
any Subsidiary may make investments in, or create,
any wholly-owned Domestic Subsidiary (by way of
capital contribution or otherwise) or make
investments permitted by subsection 8.5(b),
provided that, in any such case, the requirements
of subsection 7.9 are satisfied and (iii) the
Company and any Subsidiary may make investments
in, or create, any wholly-owned Foreign Subsidiary
(by way of capital contribution or otherwise),
provided that (x) the requirements of subsection
7.9 are satisfied and (y) the aggregate amount of
all investments in such Foreign Subsidiaries shall
not exceed (I) $25,000,000 (plus the sum of any
amount dividended or distributed by such Foreign
Subsidiaries to the Company or any Domestic
Subsidiary), minus (II) the amount of any
Indebtedness of any Foreign Subsidiary at any such
time outstanding in accordance with subsection
8.1(c)(iii) or 8.3 (c)(ii);
(c) the Company and its Subsidiaries may
invest in, acquire and hold Cash Equivalents and
Investment Grade Securities;
(d) the Company or any of its
Subsidiaries may make payroll advances in the
ordinary course of business;
(e) the Company or any of its
Subsidiaries may acquire and hold receivables
owing to it, if created or acquired in the
ordinary course of business and payable or
dischargeable in accordance with customary trade
terms (provided that nothing in this clause (e)
shall prevent the Company or any Subsidiary from
offering such concessionary trade terms, or from
receiving such investments, in connection with the
bankruptcy or reorganization of their respective
suppliers or customers or the settlement of
disputes with such customers or suppliers arising
in the ordinary course of business, as management
deems reasonable in the circumstances);
(f) the Company or any of its
Subsidiaries may make travel and entertainment
advances and relocation and other loans to
officers and employees of the Company or any such
Subsidiary, provided that the aggregate principal
amount of all such loans and advances outstanding
at any one time, together with the guarantees of
such loans and advances made pursuant to
subsection 8.3(e), shall not exceed $5,000,000 at
any one time outstanding;
(g) the Company and its Subsidiaries may
make expenditures to acquire all or a portion of
the Capital Stock or assets of any Person engaged
primarily in one or more businesses in which the
Company and its Subsidiaries are engaged or
directly related thereto or in the building
products industry generally, provided that, after
giving pro forma effect to any such acquisition
and the financing thereof, (i) the amount of the
expenditures in connection with such acquisition
does not exceed $35,000,000 without the prior
written consent of the Required Lenders, (ii) the
provisions of subsection 7.9 are satisfied, (iii)
either (A) the ratio of Consolidated Funded
Indebtedness (excluding Indebtedness in respect of
the Senior Discount Notes permitted hereunder) as
of the day of such acquisition to Consolidated
EBITDA for the period of four fiscal quarters
ending as at the last day of the most recently
ended fiscal quarter is less than 5.00 to 1.00;
provided that the last four fiscal quarters of
Consolidated EBITDA (as may be adjusted for
identified post acquisition cost savings
reasonably agreed to by the Company and the
Administrative Agent) of each acquired company,
business or group of assets during the testing
period shall be added for purposes of calculating
such ratio or (B) the amount of expenditures in
connection with such acquisition does not exceed
$7,500,000 and the Company elects (by prior
written notice to the Administrative Agent) to
treat such expenditures as "Capital Expenditures"
for purposes of this Agreement, including but not
limited to subsection 8.7, and (iv) no Default or
Event of Default has occurred and is continuing or
would result therefrom; and
(h) the Company or any of its
Subsidiaries may make investments in, or loans or
investments to, joint ventures or other Persons
engaged primarily in one or more businesses in
which the Company and its Subsidiaries are engaged
or directly related thereto or in the building
products industry generally, in an aggregate
principal amount not to exceed $15,000,000 (plus
the sum of any amounts dividended or distributed
to the Company or any Domestic Subsidiary of the
Company by such joint venture or other Person);
provided that at the time of and after giving
effect thereto no Default or Event of Default
shall have occurred and be continuing or would
result therefrom.
For the purposes of this subsection 8.6, the payment by
the Company of expenses and operating costs of any Domestic
Subsidiary incurred in the ordinary course of its business
shall not be considered to be a loan, advance or other
investment of the Company in such Domestic Subsidiary and
shall be permitted under this Agreement.
8.7 Capital Expenditures. Make or commit to
make any Capital Expenditures, except that the Company
and its Subsidiaries may make or commit to make Capital
Expenditures not exceeding the amount set forth below
(the "Base Amount") for each of the fiscal years or
periods of the Company (or other period) set forth
below:
Fiscal Year
or
Period Base Amount
Closing Date-1998 $55,000,000
1999 $32,000,000
2000 $34,000,000
2001 $36,000,000
2002 $38,000,000
2003 $40,000,000
2004 $42,000,000
January 1, 2005 to
June 30, 2005 $22,000,000
provided that (i) for any period set forth above, the Base
Amount set forth above may be increased by a maximum of 50%
of the Base Amount for any such period by carrying over to
any such period any portion of the Base Amount (as
increased) not spent in the immediately preceding period and
(ii) for each period of the Company, the Base Amount set
forth above shall be increased in the event any Person or
assets of such Person (an "Acquired Person") is acquired as
permitted herein by an amount equal to 110% of the amount of
capital expenditures (determined in accordance with GAAP) of
such Acquired Person for the twelve months prior to the date
it was acquired ("Acquired Capital Expenditures"); provided
that, with respect to the fiscal year in which such Person
becomes an Acquired Person, the Base Amount shall be
increased by the product of (A) the Acquired Capital
Expenditures of such Acquired Person times (B) a fraction,
the numerator of which is the number of days remaining in
the fiscal year of the Company in which such Acquired Person
was acquired and the denominator of which is 365; and
provided, further, that, notwithstanding anything to the
contrary herein, additional Capital Expenditures may be made
with net proceeds received in property sales or dispositions
under subsection 8.5(g).
8.8 Interest Rate Agreements. Enter into,
create, incur, assume or suffer to exist any Interest
Rate Agreements or obligations in respect thereof
except in the ordinary course of business for non-
speculative purposes.
8.9 Debt to EBITDA. At the last day of any
fiscal quarter set forth below, permit the ratio (the
"Leverage Ratio") of Consolidated Funded Indebtedness
as of such day to Consolidated EBITDA for the period of
four fiscal quarters ending on such day to be greater
than the ratio set forth below for such fiscal quarter;
provided that, with respect to any acquisition
permitted by subsection 8.6(g), the last four fiscal
quarters of Consolidated EBITDA (as may be adjusted for
post acquisition cost savings reasonably agreed to by
the Company and the Administrative Agent) of the
acquired company shall be added for the purposes of
calculating this ratio:
Fiscal Year Fiscal Quarter Ratio
1997 Third 6.75 to 1.00
Fourth 6.75 to 1.00
1998 First 6.75 to 1.00
Second 6.75 to 1.00
Third 6.75 to 1.00
Fourth 6.50 to 1.00
1999 First 6.50 to 1.00
Second 6.50 to 1.00
Third 6.50 to 1.00
Fourth 6.00 to 1.00
2000 First 6.00 to 1.00
Second 6.00 to 1.00
Third 6.00 to 1.00
Fourth 5.75 to 1.00
2001 First 5.75 to 1.00
Second 5.75 to 1.00
Third 5.75 to 1.00
Fourth 5.50 to 1.00
2002 First 5.50 to 1.00
Second 5.50 to 1.00
Third 5.50 to 1.00
Fourth 5.25 to 1.00
2003 First 5.25 to 1.00
Second 5.25 to 1.00
Third 5.25 to 1.00
Fourth 5.00 to 1.00
2004 First 5.00 to 1.00
Second 5.00 to 1.00
Third 5.00 to 1.00
Fourth 5.00 to 1.00
2005 First 5.00 to 1.00
Second 5.00 to 1.00
8.10 Interest Coverage. At the last day of
any fiscal quarter set forth below, permit the Interest
Coverage Ratio to be less than the ratio set forth
below for such fiscal quarter:
Fiscal Year Fiscal Quarter Interest Coverage Ratio
1997 Fourth 2.00 to 1.00
1998 First 2.00 to 1.00
Second 2.00 to 1.00
Third 2.00 to 1.00
Fourth 2.00 to 1.00
1999 First 2.00 to 1.00
Second 2.00 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2000 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2001 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2002 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2003 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
2004 First 2.25 to 1.00
Second 2.25 to 1.00
Third 2.25 to 1.00
Fourth 2.25 to 1.00
2005 First 2.25 to 1.00
Second 2.25 to 1.00
8.11 Limitation on Dividends. Declare any
dividends on any shares of any class of Capital Stock,
or make any payment on account of, or set apart assets
for a sinking or other analogous fund for, the
purchase, redemption, retirement or other acquisition
of any shares of any class of Capital Stock, or any
warrants or options to purchase such Capital Stock,
whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or
indirectly, whether in cash or property or in
obligations of the Company or any of its Subsidiaries;
except that:
(a) Subsidiaries may pay dividends to
the Company or to Domestic Subsidiaries which are
directly or indirectly wholly-owned by the
Company;
(b) the Company may pay or make
dividends or distributions to any holder of its
Capital Stock in the form of additional shares of
Capital Stock of the same class and type; and
(c) the Company may repurchase Capital Stock
of the Company owned by former, present or future employees
of the Company or its Subsidiaries or their assigns, estates
and heirs, provided that the aggregate amount expended by
the Company pursuant to this clause (c) shall not in the
aggregate exceed (i) $2,500,000 in any fiscal year or (ii)
$7,500,000 during the term of this Agreement, plus any
amounts contributed to the Company as a result of resales of
such repurchased shares of Capital Stock.
8.12 Transactions with Affiliates. Enter
into any transaction, including, without limitation,
any purchase, sale, lease or exchange of property or
the rendering of any service, with any Affiliate except
for transactions which are otherwise permitted under
this Agreement and which are in the ordinary course of
the Company's or a Subsidiary's business and which are
upon fair and reasonable terms no less favorable to the
Company or such Subsidiary than it would obtain in a
hypothetical comparable arm's length transaction with a
Person not an Affiliate, provided that nothing in this
subsection 8.12 shall prohibit the Company or its
Subsidiaries from engaging in the following
transactions: (x) the performance of the Company's or
any Subsidiary's obligations under any employment
contract, collective bargaining agreement, employee
benefit plan, related trust agreement or any other
similar arrangement heretofore or hereafter entered
into in the ordinary course of business, (y) the
payment of compensation to employees, officers,
directors or consultants in the ordinary course of
business, or (z) the maintenance of benefit programs or
arrangements for employees, officers or directors,
including, without limitation, vacation plans, health
and life insurance plans, deferred compensation plans,
and retirement or savings plans and similar plans, in
each case, in the ordinary course of business.
8.13 Prepayments and Amendments of
Subordinated Debt. (a) Optionally prepay, retire,
redeem, purchase, defease or exchange, or make any
mandatory prepayment, retirement, redemption, purchase
or defeasance of any Subordinated Debt (other than (x)
any redemption of the Bridge Subordinated Debt, the
Senior Subordinated Notes or the Senior Discount Notes
with proceeds of Permanent Subordinated Debt as
permitted by subsection 8.1(d), (y) any refinancing of
the Permanent Subordinated Debt contemplated in the
definition thereof or (z) any redemption of
Subordinated Debt with the proceeds of the issuance of
Capital Stock to the extent permitted by subsection
4.4(b)(i)) or pay any interest on Subordinated Debt in
cash if such interest may be paid by the issuance of
additional Subordinated Debt or (b) waive, amend,
supplement, modify, terminate or release the provisions
of any Subordinated Debt, to the extent that any such
waiver, amendment, supplement, modification,
termination or release would be materially adverse to
the Lenders.
8.14 Limitation on Changes in Fiscal Year.
Permit the fiscal year of the Company to end on a day
other than December 31 in any calendar year.
8.15 Limitation on Lines of Business. Enter
into any business, either directly or through any
Subsidiary, except for those businesses in which the
Company or any Subsidiary is engaged on the date of
this Agreement (or which are directly related thereto
or those related generally to the building products
industry).
SECTION 9. EVENTS OF DEFAULT
Upon the occurrence and during the continuance of
any of the following events:
(a) The Company shall fail to (i) pay
any principal of any Loan or Note when due in
accordance with the terms hereof or thereof or to
reimburse the Issuing Lender in accordance with
subsection 3.8 or (ii) pay any interest on any
Loan or Note or any other amount payable hereunder
within five days after any such interest or other
amount becomes due in accordance with the terms
thereof or hereof; or
(b) Any representation or warranty made
or deemed made by any Credit Party in any Credit
Document shall prove to have been incorrect in any
material respect on or as of the date made or
deemed made; or
(c) The Company shall default in the
observance or performance of any agreement
contained in subsection 7.7(a) or 7.9 or Section 8
of this Agreement or the Company shall default in
the observance or performance of any agreement
contained in subsections 5(a), (h) through (k) and
(o) of the Company Security Agreement or
subsections 5(a), (b) and (c) of the Company
Pledge Agreement or any Subsidiary shall default
in the observance or performance of any agreement
contained in subsections (a),(h) through (k) and
(o) of the Subsidiary Security Agreement,
subsection 10 of the Subsidiary Guarantee or
subsections 5(a), (b) and (c) of the Subsidiary
Pledge Agreement or Section 5, 6 or 7 of any
Mortgage; or
(d) Any Credit Party shall default in
the observance or performance of any other
agreement contained in any Credit Document and
such default shall continue unremedied for a
period of 30 days; or
(e) The Company or any of its
Subsidiaries (other than a Receivables SPV) shall
(i) default in any payment of principal of or
interest on or other amounts in respect of any
Indebtedness (other than the Loans, the L/C
Obligations and any inter-company debt) or
Interest Rate Agreement or in the payment of any
Contingent Obligation, beyond the period of grace,
if any, provided in the instrument or agreement
under which such Indebtedness, Interest Rate
Agreement or Contingent Obligation was created; or
(ii) default in the observance or performance of
any other agreement or condition relating to any
such Indebtedness, Interest Rate Agreement or
Contingent Obligation or contained in any
instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur
or condition exist, the effect of which default or
other event or condition is to cause, or to permit
the holder or holders of such Indebtedness or
beneficiary or beneficiaries of such Contingent
Obligation (or a trustee or agent on behalf of
such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to become due prior
to its stated maturity, any applicable grace
period having expired, or such Contingent
Obligation to become payable, any applicable grace
period having expired; in each case, provided that
the aggregate principal amount of all such
Indebtedness, Interest Rate Agreements and
Contingent Obligations under which a default
exists or which would then become due or payable
equals or exceeds $10,000,000; or
(f)(i) The Company or any of its
Subsidiaries shall commence any case, proceeding
or other action (A) under any existing or future
law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to
adjudicate it as bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee,
custodian or other similar official for it or for
all or any substantial part of its assets, or the
Company or any of its Subsidiaries shall make a
general assignment for the benefit of its
creditors; or (ii) there shall be commenced
against the Company or any of its Subsidiaries any
case, proceeding or other action of a nature
referred to in clause (i) above which (A) results
in the entry of an order for relief or any such
adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period
of 60 days; or (iii) there shall be commenced
against the Company or any of its Subsidiaries any
case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint
or similar process against all or any substantial
part of its assets which results in the entry of
an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry
thereof; or (iv) the Company or any of its
Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in
clause (i), (ii), or (iii) above; or (v) the
Company or any of its Subsidiaries shall generally
not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they
become due; or
(g)(i) Any Person shall engage in any
"prohibited transaction" (as defined in Section
406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to
any Plan or any Lien in favor of the PBGC or a
Plan shall arise on the assets of the Company or
any Commonly Controlled Entity, (iii) a Reportable
Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable
opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of
Title IV of ERISA, (iv) any Single Employer Plan
shall terminate for purposes of Title IV of ERISA,
(v) the Company or any Commonly Controlled Entity
shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability
in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall
occur or exist with respect to a Plan, and such
event or condition, together with all other such
events or conditions, relating to a Plan, if any,
would be reasonably likely to subject the Company
or any of its Subsidiaries to any tax, penalty or
other liabilities in the aggregate resulting in a
material adverse effect to the Company and its
Subsidiaries taken as a whole; or
(h) One or more judgments or decrees
shall be entered against the Company or any of its
Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance)
of $10,000,000 or more and all such judgments or
decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within the time
required by the terms of such judgment; or
(i) Any Credit Document shall cease, for
any reason, to be in full force and effect or any
Credit Party or any of its Subsidiaries shall so
assert in writing, or any Security Document shall
cease to be effective to grant a perfected Lien on
the collateral described therein with the priority
purported to be created thereby (other than as a
result of any action or inaction on the part of
the Administrative Agent or the Lenders), subject
to such exceptions as may be permitted therein or
herein, and in the case of any Security Agreement,
such condition shall continue unremedied for 30
days after notice thereof to the Company by the
Administrative Agent or any Lender; or
(j) There shall have occurred a Change
of Control; or
(k) The subordination provisions of any
document governing any Subordinated Debt shall
cease, for any reason, to be valid or any Credit
Party or any of its Subsidiaries shall so assert
in writing;
then, and in any such event, (a) if such event is an Event
of Default specified in clause (i) or (ii) of paragraph (f)
above with respect to the Company, automatically (i) the
Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the Notes shall
immediately become due and payable, and (ii) all obligations
of the Company in respect of the Letters of Credit, although
contingent and unmatured, shall become immediately due and
payable and the Issuing Lender's obligations to issue the
Letters of Credit shall immediately terminate and (b) if
such event is any other Event of Default, so long as any
such Event of Default shall be continuing, either or both of
the following actions may be taken: (i) with the consent of
the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative
Agent shall, by notice to the Company, declare the
Commitments and the Issuing Lender's obligations to issue
the Letters of Credit to be terminated forthwith, whereupon
the Commitments and such obligations shall immediately
terminate; and (ii) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request
of the Required Lenders, the Administrative Agent shall, by
notice of default to the Company, (A) declare all or a
portion of the Loans hereunder (with accrued interest
thereon) and all other amounts owing under this Agreement
and the Notes to be due and payable forthwith, whereupon the
same shall immediately become due and payable, and (B)
declare all or a portion of the obligations of the Company
in respect of the Letters of Credit, although contingent and
unmatured, to be due and payable forthwith, whereupon the
same shall immediately become due and payable and/or demand
that the Company discharge any or all of the obligations
supported by the Letters of Credit by paying or prepaying
any amount due or to become due in respect of such
obligations. All payments under this Section 9 on account
of undrawn Letters of Credit shall be made by the Company
directly to a cash collateral account established by the
Administrative Agent for such purpose for application to the
Company's reimbursement obligations under subsection 3.8 as
drafts are presented under the Letters of Credit, with the
balance, if any, to be applied to the Company's obligations
under this Agreement and the Notes as the Administrative
Agent shall determine with the approval of the Required
Lenders. Except as expressly provided above in this Section
9, presentment, demand, protest and all other notices of any
kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT; THE ISSUING LENDER
10.1 Appointment. Each Lender hereby
irrevocably designates and appoints Chase as the
Administrative Agent and Bankers Trust Company as the
Documentation Agent under this Agreement and
irrevocably authorizes Chase as Administrative Agent
and Bankers Trust Company as Documentation Agent for
such Lender to take such action on its behalf under the
provisions of the Credit Documents and to exercise such
powers and perform such duties as are expressly
delegated to the Administrative Agent or the
Documentation Agent by the terms of the Credit
Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement,
the Administrative Agent and the Documentation Agent
shall not have any duties or responsibilities, except
those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or
liabilities shall be read into the Credit Documents or
otherwise exist against the Administrative Agent or the
Documentation Agent.
10.2 Delegation of Duties. The
Administrative Agent may execute any of its duties
under this Agreement and each of the other Credit
Documents by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected
by it with reasonable care, except as otherwise
provided in subsection 10.3.
10.3 Exculpatory Provisions. Neither the
Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under
or in connection with the Credit Documents (except for
its or such Person's own gross negligence or willful
misconduct), or (ii) responsible in any manner to any
of the Lenders for any recitals, statements,
representations or warranties made by any Credit Party
or any officer thereof contained in the Credit
Documents or in any certificate, report, statement or
other document referred to or provided for in, or
received by the Administrative Agent under or in
connection with, the Credit Documents or for the value,
validity, effectiveness, genuineness, enforceability or
sufficiency of the Credit Documents or for any failure
of any Credit Party to perform its obligations
thereunder. The Administrative Agent shall not be
under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of
the agreements contained in, or conditions of, any
Credit Document, or to inspect the properties, books or
records of any Credit Party.
10.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note,
entries maintained in the Register, writing,
resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or
teletype message, statement, order or other document or
conversation believed by it to be genuine and correct
and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel
to the Company), independent accountants and other
experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer
thereof shall have been filed with the Administrative
Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action
under any Credit Document unless it shall first receive
such advice or concurrence of the Required Lenders (or,
where a higher percentage of the Lenders is expressly
required hereunder, such Lenders) as it deems
appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all
liability and expense which may be incurred by it by
reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting,
under any Credit Document in accordance with a request
of the Required Lenders (unless a higher percentage of
Lenders is expressly required), and such request and
any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and all future
holders of the Notes.
10.5 Notice of Default. The Administrative
Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received
written notice from a Lender or the Company or any
other Credit Party referring to this Agreement,
describing such Default or Event of Default and stating
that such notice is a "notice of default". In the
event that the Administrative Agent receives such a
notice, the Administrative Agent shall promptly give
notice thereof to the Lenders. The Administrative
Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless
and until the Administrative Agent shall have received
such directions, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default
or Event of Default as it shall deem advisable in the
best interests of the Lenders.
10.6 Non-Reliance on Administrative Agent
and Other Lenders. Each Lender expressly acknowledges
that neither the Administrative Agent nor any of its
officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by
the Administrative Agent hereafter taken, including any
review of the affairs of the Credit Parties, shall be
deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender
represents to the Administrative Agent that it has,
independently and without reliance upon the
Administrative Agent or any other Lender, and based on
such documents and information as it has deemed
appropriate, made its own appraisal of and
investigation into the business, operations, property,
financial and other condition and creditworthiness of
AcquisitionCo and the Company and its Subsidiaries and
made its own decision to make its Loans hereunder and
enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon
the Administrative Agent or any other Lender, and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or
not taking action under the Credit Documents, and to
make such investigation as it deems necessary to inform
itself as to the business, operations, property,
financial and other condition and creditworthiness of
AcquisitionCo and the Company and its Subsidiaries.
Except for notices, reports and other documents
expressly required to be furnished to the Lenders by
the Administrative Agent hereunder, the Administrative
Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information
concerning the business, operations, property,
financial and other condition or creditworthiness of
the Credit Parties which may come into the possession
of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or
Affiliates.
10.7 Indemnification. The Lenders agree to
indemnify the Administrative Agent in its capacity as
such (to the extent not reimbursed by the Credit
Parties and without limiting the obligation of the
Credit Parties to do so), ratably according to the
respective amounts of their respective Commitments (or,
to the extent such Commitments have been terminated,
according to the respective outstanding principal
amounts of the Loans and the L/C Obligations and the
respective obligations, whether as Issuing Lender or a
Participating Lender, under the Letter of Credit), from
and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever
which may at any time (including without limitation at
any time following the payment of the Loans) be imposed
on, incurred by or asserted against the Administrative
Agent in any way relating to or arising out of the
Credit Documents or any documents contemplated by or
referred to herein or the transactions contemplated
hereby or any action taken or omitted by the
Administrative Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's gross
negligence or willful misconduct. The agreements in
this subsection 10.7 shall survive the repayment of the
Loans and all other amounts payable hereunder.
10.8 The Administrative Agent in its
Individual Capacity. The Administrative Agent and its
Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the
Company and its Subsidiaries as though the
Administrative Agent were not the Administrative Agent
hereunder. With respect to its Loans made or renewed
by it and any Note issued to it, the Administrative
Agent shall have the same rights and powers, duties and
liabilities under the Credit Documents as any Lender
and may exercise the same as though it were not the
Administrative Agent and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its
individual capacity.
10.9 Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent
upon 30 days' notice to the Lenders. If the
Administrative Agent shall resign as Administrative
Agent under the Credit Documents, then the Required
Lenders shall appoint from among the Lenders a
successor agent for the Lenders which successor agent
shall, so long as no Event of Default has occurred and
is continuing, be approved by the Company, which shall
not unreasonably withhold its approval, whereupon such
successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent
effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without
any other or further act or deed on the part of such
former Administrative Agent or any of the parties to
this Agreement or any holders of the Notes. After any
retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Section
10 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the
Administrative Agent under the Credit Documents.
10.10 Issuing Lender as Issuer of Letters of
Credit. Each Lender which is a holder of a Revolving
Credit Commitment (collectively "Revolving Credit
Lenders") hereby acknowledges that the provisions of
this Section 10 shall apply to the Issuing Lender, in
its capacity as issuer of the Letters of Credit, in the
same manner as such provisions are expressly stated to
apply to the Administrative Agent, except that
obligations to indemnify the Issuing Lender shall be
ratable among the Revolving Credit Lenders in
accordance with their respective Revolving Credit
Commitments (or, if the Revolving Credit Commitments
have been terminated, the outstanding principal amount
of their respective Revolving Credit Loans and L/C
Obligations and their respective participating
interests in the outstanding Letters of Credit).
SECTION 11. MISCELLANEOUS
11.1 Amendments and Waivers. Except as
otherwise expressly set forth in this Agreement, no
Credit Document nor any terms thereof may be amended,
supplemented, waived or modified except in accordance
with the provisions of this subsection 11.1. With the
written consent of the Required Lenders, the
Administrative Agent and the respective Credit Parties
or their Subsidiaries may, from time to time, enter
into written amendments, supplements or modifications
hereto for the purpose of adding any provisions to any
Credit Document to which they are parties or changing
in any manner the rights of the Lenders or of any such
Credit Party or its Subsidiaries thereunder or waiving,
on such terms and conditions as the Administrative
Agent may specify in such instrument, any of the
requirements of any such Credit Document or any Default
or Event of Default and its consequences; provided
that:
(a) no such waiver and no such
amendment, supplement or modification shall
release collateral not required or permitted by
any Credit Document to be released and which, in
the aggregate with all other collateral released
pursuant to this clause (a) (other than collateral
released pursuant to the proviso to this clause
(a)) during the calendar year in which such
proposed release would be effected and the
immediately preceding calendar year, has fair
market value on the proposed date of release in
excess of 20% of the fair market value of all
collateral (including any Guarantee) on such date
without the written consent of the Supermajority
Lenders; provided that, notwithstanding the
foregoing, this clause (a) shall not be applicable
to and no consent shall be required for (i)
releases of collateral in connection with any
Asset Sales permitted by subsection 8.5, (ii)
releases of collateral in accordance with
subsection 11.11 or (iii) upon the reincorporation
of the Company or any Subsidiary in a new
jurisdiction or the creation of a new Subsidiary
of the Company, any release of collateral in
connection with the transfer of such released
collateral to such reincorporated entity or new
Subsidiary in compliance with subsection 8.4,
provided that the Administrative Agent, in its
sole discretion, determines that such release and
transfer, together with any grant and perfection
of a new Lien therein in favor of the
Administrative Agent, will cause no material
impairment of the value of the collateral taken as
a whole, after giving effect to such release and
transfer;
(b) no such waiver and no such
amendment, supplement or modification shall extend
the final maturity date of any Note or the
scheduled payment date of any installment of any
Loan, or reduce the rate or extend the time of
payment of interest thereon, or change the method
of calculating interest thereon, or reduce or
extend the time of payment of any fee payable to
the Lenders hereunder, or reduce the principal
amount thereof, or change the amount of any
Lender's Commitment or Commitment Percentage, or
amend, modify or waive any provision of subsection
4.9(b) or this subsection 11.1 or reduce the
percentage specified in the definition of Required
Lenders or reduce the percentage specified in the
definition of Supermajority Lenders or consent to
the assignment or transfer by any Credit Party of
any of its rights and obligations under any Credit
Document, in each case, without the prior written
consent of each Lender directly affected thereby;
(c) no such waiver and no such
amendment, supplement or modification affecting
the then Administrative Agent or Issuing Lender
shall amend, modify or waive any provision of
Section 10 without the written consent of such
Administrative Agent and Issuing Lender;
(d) without the consent of each of the
Lenders which are Revolving Credit Lenders only,
each of the Lenders which are holders of the Term
Loan Notes may amend this Agreement and the Term
Loan Notes to extend the maturities of the
installments of the Term Loans, and without the
consent of each of the Lenders which are holders
of the Term Loans only, the Revolving Credit
Lenders may amend this Agreement and the Revolving
Credit Notes to extend the Revolving Credit
Termination Date; and
(e) no such waiver, and no such
amendment, supplement or modification shall amend,
modify or waive the prepayment requirements
specified in subsection 4.4(b)(i), (ii) and (iii)
or the order of application of prepayments
specified in subsection 4.4(a) or 4.4(b)(v)
without the written consent of the holders of at
least 51% of each of (i) the aggregate unpaid
principal amount of the Term Loans, if any, and
(ii) the Revolving Credit Commitments or, if the
Revolving Credit Commitments are terminated, the
aggregate unpaid principal amount of the Revolving
Credit Loans (the Term Loans and the Revolving
Credit Commitments of any Non-Funding Lender to be
disregarded in determining such percentage at any
time);
any such waiver and any such amendment, supplement or
modification described in this subsection 11.1 shall apply
equally to each of the Lenders and shall be binding upon
each Credit Party and its Subsidiaries, the Lenders, the
Administrative Agent and the Issuing Lender and all future
holders of the Notes and the Loans. Any extension of a
Letter of Credit by the Issuing Lender shall be treated
hereunder as a new Letter of Credit. In the case of any
waiver, the Credit Parties, the Lenders, the Administrative
Agent and Issuing Lender shall be restored to their former
position and rights hereunder and under the outstanding
Notes, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver
shall extend to any subsequent or other Default or Event of
Default, or impair any right consequent thereon.
11.2 Notices. All notices, requests and
demands to or upon the respective parties hereto to be
effective shall be in writing (including by telecopy or
telex, if one is listed), and, unless otherwise
expressly provided herein, shall be deemed to have been
duly given or made when delivered by hand, or three
Business Days after being deposited in the mail,
postage prepaid, or, in the case of telecopy notice,
when sent, confirmation of receipt received, or, in the
case of telex notice, when sent, answerback received,
addressed as follows in the case of the Company, the
Administrative Agent, and as set forth in Schedule I in
the case of any Lender, or to such other address as may
be hereafter notified by the respective parties hereto
and any future holders of the Notes:
The Company: Falcon Building Products, Inc.
Two North Riverside Plaza
Chicago, Illinois 60606
Attention: Gus J. Athas and
Anthony Navitsky
Telecopy: (312) 906-8402
With a copy to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Janet Vance, Esq.
Telecopy: (212) 351-4035
The Administrative Agent and Swing
Line Lender: The Chase Manhattan Bank
Agent Bank Services
1 Chase Manhattan Plaza,
8th floor
New York, New York 10081
Attention: Janet M. Belden
Telecopy: (212) 622-0122
With a copy to: Chase Securities Inc.
10 South LaSalle Street
23rd Floor
Chicago, Illinois 60603
Attention: Jon R. Hinard
Telecopy: (312) 443-1964
provided that any notice, request or demand to or upon the
Administrative Agent or the Lenders pursuant to subsections
3.4, 3.5, 4.1, 4.2, 4.3 and 4.4 shall not be effective until
received and, provided, further, that the failure to provide
the copies of notices to the Company provided for in this
subsection 11.2 shall not result in any liability to the
Administrative Agent.
11.3 No Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the
part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative
and not exclusive of any rights, remedies, powers and
privileges provided by law.
11.4 Survival of Representations and
Warranties. All representations and warranties made
hereunder and in any document, certificate or statement
delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this
Agreement, the Letters of Credit and the Notes.
11.5 Payment of Expenses and Taxes. The
Company agrees (a) to pay or reimburse the
Administrative Agent, the Documentation Agent and the
Arranger for all their reasonable out-of-pocket costs
and expenses incurred in connection with the
development, negotiation, preparation and execution of
the Credit Documents and any other documents prepared
in connection herewith, and the consummation of the
transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and
disbursements of one counsel to the Administrative
Agent, the Documentation Agent and the Arranger (b) to
pay or reimburse all of the reasonable expenses,
including without limitation, reasonable fees and
expenses of counsel, incurred by the Administrative
Agent in connection with the administration of the
facilities provided for herein or in connection with
any amendments, waivers, work-outs or restructurings in
respect thereof, (c) to pay or reimburse the
Administrative Agent, the Documentation Agent, the
Arranger, the Issuing Lender and each Lender for all
their costs and expenses incurred in connection with,
and to pay, indemnify, and hold the Administrative
Agent, the Documentation Agent, the Arranger, the
Issuing Bank and each Lender harmless from and against
any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature
whatsoever arising out of or in connection with, the
enforcement or preservation of any rights under any
Credit Document and any such other documents,
including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent,
the Arranger and each Lender incurred in connection
with the foregoing and in connection with advising the
Administrative Agent with respect to its rights and
responsibilities under this Agreement and the
documentation relating thereto, (d) to pay, indemnify,
and to hold the Administrative Agent, the Documentation
Agent, the Arranger and each Lender harmless from any
and all recording and filing fees and any and all
liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other similar taxes
(other than withholding taxes), if any, which may be
payable or determined to be payable in connection with
the execution and delivery of, or consummation of any
of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent
under or in respect of, any Credit Document and any
such other documents, and (e) to pay, indemnify, and
hold the Administrative Agent, the Documentation Agent,
the Arranger, the Issuing Bank and each Lender and
their respective Affiliates, officers, directors and
trustees harmless from and against any and all other
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever
(including, without limitation, reasonable fees and
disbursements of counsel) which may be incurred by or
asserted against the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
the Lenders or such Affiliates, officers, directors or
trustees (x) arising out of or in connection with any
investigation, litigation or proceeding related to this
Agreement, the other Credit Documents, the proceeds of
the Loans or the Subordinated Debt and the transactions
contemplated by or in respect of such use of proceeds,
or any of the other transactions contemplated hereby,
whether or not the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
any of the Lenders or such Affiliates, officers,
directors or trustees is a party thereto, including,
without limitation, any of the foregoing relating to
the violation of, noncompliance with or liability
under, any Environmental Law applicable to the Company,
any of its Subsidiaries or any of the facilities and
properties owned, leased or operated by the Company or
any of its Subsidiaries, or (y) without limiting the
generality of the foregoing, by reason of or in
connection with the execution and delivery or transfer
of, or payment or failure to make payments under,
Letters of Credit (it being agreed that nothing in this
subsection 11.5(d)(y) is intended to limit the
Company's obligations pursuant to subsection 3.8) (all
the foregoing, collectively, the "indemnified
liabilities"), provided that the Company shall have no
obligation hereunder with respect to indemnified
liabilities of the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
any Lender or any of their respective Affiliates,
officers, directors and trustees arising from (i) the
gross negligence or willful misconduct of the person
seeking indemnification or (ii) legal proceedings
commenced against the Administrative Agent, the
Documentation Agent, the Arranger, the Issuing Bank or
Lender by any security holder or creditor thereof
arising out of and based upon rights afforded any such
security holder or creditor solely in its capacity as
such or (iii) legal proceedings commenced against the
Administrative Agent, the Documentation Agent, the
Arranger, the Issuing Bank or any such Lender by any
Transferee (as defined in subsection 11.6). Without
limiting the foregoing, and to the extent permitted by
applicable law, the Company agrees not to assert, and
hereby waives (and shall cause the Subsidiaries not to
assert and to waive) all rights for contribution or any
other rights of recovery with respect to all
liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever, under
or related to Environmental Laws, that any of them
might have by statute or otherwise against the
Administrative Agent, the Documentation Agent, the
Arranger, the Issuing Lender or any Lender. The
agreements in this subsection 11.5 shall survive
repayment of the Loans and all other amounts payable
hereunder.
11.6 Successors and Assigns; Participations
and Assignments. (a) This Agreement shall be binding
upon and inure to the benefit of the Company, the
Lenders, the Administrative Agent, the Documentation
Agent, the Arranger, all future holders of the Notes
and the Loans, and their respective successors and
assigns, except that the Company may not assign or
transfer any of its rights or obligations under this
Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary
course of its commercial banking or lending
business and in accordance with applicable law, at
any time sell to one or more banks or other
entities ("Participants") participating interests
in any Loan owing to such Lender, any
participating interest in the Letters of Credit of
such Lender, any Note held by such Lender, any
Commitment of such Lender or any other interest of
such Lender hereunder. In the event of any such
sale by a Lender of participating interests to a
Participant, such Lender's obligations under this
Agreement to the other parties to this Agreement
shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof,
such Lender shall remain the holder of any such
Note for all purposes under this Agreement and the
Company and the Administrative Agent shall
continue to deal solely and directly with such
Lender in connection with such Lender's rights and
obligations under this Agreement and the other
Credit Documents. The Company agrees that if
amounts outstanding under this Agreement and the
Notes are due and unpaid, or shall have been
declared or shall have become due and payable upon
the occurrence of an Event of Default, each
Participant shall be deemed to have the right of
setoff in respect of its participating interest in
amounts owing under this Agreement and any Note to
the same extent as if the amount of its
participating interest were owing directly to it
as a Lender under this Agreement or any Note;
provided that such right of setoff shall be
subject to the obligation of such Participant to
share with the Lenders, and the Lenders agree to
share with such Participant, as provided in
subsection 11.7. The Company also agrees that
each Participant shall be entitled to the benefits
of subsections 3.10, 4.11 and 4.12 with respect to
its participation in the Letters of Credit and in
the Commitments and the Loans outstanding from
time to time as if it were a Lender; provided that
no Participant shall be entitled to receive any
greater amount pursuant to any such subsection
than the transferor Lender would have been
entitled to receive in respect of the amount of
the participation transferred by such transferor
Lender to such Participant had no such transfer
occurred. Each Lender agrees that the
participation agreement pursuant to which any
Participant acquires its participating interest
(or any other document) may afford voting rights
to such Participant, or any right to instruct such
Lender with respect to voting hereunder, only with
respect to matters requiring the consent of either
all of the Lenders hereunder or all of the Lenders
holding the relevant Term Loans or Revolving
Credit Commitments subject to such participation.
(c) Subject to paragraph (g) of this
subsection 11.6, any Lender may, in the ordinary
course of its commercial banking, lending or
investment business and in accordance with
applicable law, (i) at any time and from time to
time assign all or any part of its rights and
obligations under this Agreement and the Notes to
any Lender or any Affiliate thereof, provided
that, in the event of a sale of less than all of
such rights and obligations, such assigning Lender
after any such sale to any other Lender or any
Affiliate of such Lender shall retain Commitments
and/or Loans and/or L/C Participating Interests
aggregating at least $5,000,000 (or such lesser
amount as the Administrative Agent may determine)
and (ii) with the consent of the Company and the
Administrative Agent (which in each case shall not
be unreasonably withheld or delayed) at any time
and from time to time assign to one or more
additional banks, mutual funds or financial
institutions or entities (each, an "Assignee"),
all or any part of its rights and obligations
under this Agreement and the Notes, pursuant to an
Assignment and Acceptance, executed by such
Assignee, such transferor Lender (and, in the case
of an Assignee that is not then a Lender or an
Affiliate thereof, by the Company and the
Administrative Agent), and delivered to the
Administrative Agent for its acceptance and
recording in the Register (as defined below);
provided that (A) each such sale pursuant to
clause (ii) of this subsection 11.6(c) shall be in
a principal amount of $5,000,000 or more unless
the Assigning Lender is transferring all of its
rights and obligations and (B) in the event of a
sale of less than all of such rights and
obligations, such Lender after any such sale shall
retain Commitments and/or Loans and/or L/C
Participating Interests aggregating at least
$5,000,000 (or such lesser amount as the
Administrative Agent and the Company may
determine). Upon such execution, delivery,
acceptance and recording, from and after the
effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the
extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender
hereunder with a Commitment as set forth therein,
and (y) the assigning Lender thereunder shall, to
the extent of the interest transferred, as
reflected in such Assignment and Acceptance, be
released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance
covering all or the remaining portion of a
transferor Lender's rights and obligations under
this Agreement, such transferor Lender shall cease
to be a party hereto but shall continue to be
entitled to the benefits of the indemnification
provisions set forth in subsection 11.5).
(d) The Administrative Agent, which for
purposes of this subsection 11.6(d) only shall be
deemed to be the agent of the Company, shall
maintain at the address of the Administrative
Agent referred to in subsection 11.2 a copy of
each Assignment and Acceptance delivered to it and
a register (the "Register") for the recordation of
the names and addresses of the Lenders and the
Commitments of, and principal amounts of the Loans
owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in
the absence of manifest error, and the Company,
the Administrative Agent and the Lenders shall
treat each Person whose name is recorded in the
Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all
purposes of this Agreement and the other Credit
Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other
obligation hereunder shall be effective only upon
appropriate entries with respect thereto being
made in the Register. The Register shall be
available for inspection by the Company or any
Lender at any reasonable time and from time to
time upon reasonable prior notice.
(e) Upon its receipt of an Assignment
and Acceptance executed by an assigning Lender and
an Assignee (and, in the case of an Assignee that
is not then a Lender or an Affiliate thereof, by
the Company and the Administrative Agent),
together with payment to the Administrative Agent
of a registration and processing fee of $4,000 if
the Assignee is not a Lender prior to the
execution of such supplement and $1,000 otherwise,
the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record
the information contained therein in the Register
and give notice of such acceptance and recordation
to the Lenders and the Company. On or prior to
such effective date, the Company at its own
expense, shall execute and deliver to the
Administrative Agent (in exchange for any or all
of the Term Loan Notes or Revolving Credit Notes
of the assigning Lender, if any) new Term Loan
Notes or Revolving Credit Notes, as the case may
be, to the order of such Assignee (if requested)
in an amount equal to the Revolving Credit
Commitment or the Term Loans, as the case may be,
assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has
retained a Commitment or any Term Loans hereunder,
new Term Loan Notes or Revolving Credit Notes, as
the case may be, to the order of the assigning
Lender in an amount equal to the Commitment or
such Term Loans, as the case may be, retained by
it hereunder (if requested). Such new Notes shall
be dated the Closing Date and shall otherwise be
in the form of the Notes replaced thereby.
(f) The Administrative Agent, the
Documentation Agent, the Arranger and the Lenders
agree that they will use reasonable efforts to
protect the confidentiality of any confidential
information concerning the Company and its
Subsidiaries and Affiliates. Notwithstanding the
foregoing, the Company authorizes each Lender to
disclose to any Participant or Assignee (each, a
"Transferee") and any prospective Transferee any
and all information in such Lender's possession
concerning the Company and its Subsidiaries which
has been delivered to such Lender by or on behalf
of the Company pursuant to this Agreement or which
has been delivered to such Lender by or on behalf
of the Company in connection with such Lender's
credit evaluation of the Company and its
Subsidiaries prior to becoming a party to this
Agreement; provided that each Lender shall cause
its respective prospective Transferees to agree in
writing to protect the confidentiality of any
confidential information concerning the Company
and its Subsidiaries and Affiliates.
(g) If, pursuant to this subsection
11.6, any interest in this Agreement or any Note
is transferred to any Transferee which is
organized under the laws of any jurisdiction other
than the United States or any State thereof, the
transferor Lender shall cause such Transferee,
concurrently with the effectiveness of such
transfer either (1) in the case of a Transferee
that is a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (i) to represent to the
transferor Lender (for the benefit of the
transferor Lender, the Administrative Agent and
the Company) that under applicable law and
treaties no taxes will be required to be withheld
by the Administrative Agent, the Company or the
transferor Lender with respect to any payments to
be made to such Transferee in respect of the Loans
or L/C Participating Interests, (ii) to furnish to
the transferor Lender (and, in the case of any
Transferee registered in the Register, the
Administrative Agent and the Company) either U.S.
Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein such
Transferee claims entitlement to complete
exemption from U.S. federal withholding tax on all
interest payments hereunder) and (iii) to agree
(for the benefit of the transferor Lender, the
Administrative Agent and the Company) to the
extent permitted by then-current law to provide
the transferor Lender (and, in the case of any
Transferee registered in the Register, the
Administrative Agent and the Company) a new Form
4224 or Form 1001 upon the expiration or
obsolescence of any previously delivered form and
comparable statements in accordance with
applicable U.S. laws and regulations and
amendments duly executed and completed by such
Transferee, and to comply from time to time with
all applicable U.S. laws and regulations with
regard to such withholding tax exemption or (2) in
the case of any Transferee that is not a "bank"
within the meaning of Section 881(c)(3)(A) of the
Code, (i) to represent to the transferor Lender
(for the benefit of the transferor Lender, the
Administrative Agent and the Company) that it is
not a "bank" within the meaning of Section
881(c)(3)(A) of the Code, (ii) to furnish to the
transferor Lender (and, in the case of any
Transferee registered in the Register, to the
Company), with a copy to the Administrative Agent,
(A) a Subsection 4.11(d)(2) Certificate and (B)
two (2) accurate and complete original signed
copies of Internal Revenue Service Form W-8,
certifying to such Transferee's legal entitlement
on the date of the effectiveness of such transfer
to an exemption from U.S. withholding tax under
the provisions of Section 881(c) of the Code with
respect to all payments to be made under this
Agreement, and (iii) to agree (for the benefit of
the transferor Lender, the Administrative Agent
and the Company), to the extent legally entitled
to do so, upon reasonable request by the
transferor Lender (or, in the case of any
Transferee registered in the Register, the
Administrative Agent or the Company), to provide
to the transferor Lender, the Administrative Agent
and the Company such other forms as may be
required to establish the legal entitlement of
such Transferee to an exemption from withholding
tax with respect to payments under this Agreement.
(h) For avoidance of doubt, the parties
to this Agreement acknowledge that the provisions
of this subsection concerning assignments of Loans
and Notes relate only to absolute assignments and
that such provisions do not prohibit assignments
creating security interests, including, without
limitation, any pledge or assignment by a Lender
of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
11.7 Adjustments; Set-off. (a) If any
Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of any of its Loans
or L/C Participating Interests, as the case may be, or
interest thereon, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by
set-off, pursuant to events or proceedings of the
nature referred to in clause (f) of Section 9, or
otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender,
if any, in respect of such other Lender's Loans or L/C
Participating Interests, as the case may be, or
interest thereon, such benefitted Lender shall purchase
for cash from the other Lenders such portion of each
such other Lender's Loans or L/C Participating
Interests, as the case may be, or shall provide such
other Lenders with the benefits of any such collateral,
or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with
each of the Lenders; provided that if all or any
portion of such excess payment or benefits is
thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but
without interest. The Company agrees that each Lender
so purchasing a portion of another Lender's Loans
and/or L/C Participating Interests may exercise all
rights of payment (including, without limitation,
rights of set-off) with respect to such portion as
fully as if such Lender were the direct holder of such
portion. The Administrative Agent shall promptly give
the Company notice of any set-off, provided that the
failure to give such notice shall not affect the
validity of such set-off.
(b) In addition to any rights and
remedies of the Lenders provided by law, each
Lender shall have the right, without prior notice
to the Company, any such notice being expressly
waived by the Company to the extent permitted by
applicable law, upon the filing of a petition
under any of the provisions of the federal
bankruptcy code or amendments thereto, by or
against; the making of an assignment for the
benefit of creditors by; the application for the
appointment, or the appointment, of any receiver
of, or of any substantial portion of the property
of; the issuance of any execution against any
substantial portion of the property of; the
issuance of a subpoena or order, in supplementary
proceedings, against or with respect to any
substantial portion of the property of; or the
issuance of a warrant of attachment against any
substantial portion of the property of; the
Company to set off and apply against any
indebtedness, whether matured or unmatured, of the
Company to such Lender, any amount owing from such
Lender to the Company, at or at any time after,
the happening of any of the above mentioned
events, and as security for such indebtedness, the
Company hereby grants to each Lender a continuing
security interest in any and all deposits,
accounts or moneys of the Company then or
thereafter maintained with such Lender, subject in
each case to subsection 11.7(a) of this Agreement.
The aforesaid right of set-off may be exercised by
such Lender against the Company or against any
trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, receiver or
execution, judgment or attachment creditor of the
Company, or against anyone else claiming through
or against the Company or such trustee in
bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding
the fact that such right of set-off shall not have
been exercised by such Lender prior to the making,
filing or issuance, or service upon such Lender
of, or of notice of, any such petition; assignment
for the benefit of creditors; appointment or
application for the appointment of a receiver; or
issuance of execution, subpoena, order or warrant.
Each Lender agrees promptly to notify the Company
and the Administrative Agent after any such set-
off and application made by such Lender, provided
that the failure to give such notice shall not
affect the validity of such set-off and
application.
11.8 Counterparts. This Agreement may be
executed by one or more of the parties to this
Agreement on any number of separate counterparts and
all of said counterparts taken together shall be deemed
to constitute one and the same instrument. A set of
the copies of this Agreement signed by all the parties
shall be lodged with the Company and the Administrative
Agent. This Agreement shall become effective with
respect to the Company, the Administrative Agent, the
Documentation Agent and the Lenders when the
Administrative Agent shall have received copies of this
Agreement executed by the Company, the Administrative
Agent, the Documentation Agent and the Lenders, or, in
the case of any Lender, shall have received telephonic
confirmation from such Lender stating that such Lender
has executed counterparts of this Agreement or the
signature pages hereto and sent the same to the
Administrative Agent.
11.9 Governing Law; No Third Party Rights.
This Agreement and the Notes and the rights and
obligations of the parties under this Agreement and the
Notes shall be governed by, and construed and
interpreted in accordance with, the law of the State of
New York. This Agreement is solely for the benefit of
the parties hereto and their respective successors and
assigns, and, except as set forth in subsection 11.6,
no other Persons shall have any right, benefit,
priority or interest under, or because of the existence
of, this Agreement.
11.10 Submission to Jurisdiction; Waivers.
(a) Each party to this Agreement hereby irrevocably
and unconditionally:
(i) submits for itself and its property
in any legal action or proceeding relating to this
Agreement or any of the other Credit Documents, or
for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general
jurisdiction of the courts of the State of New
York, the courts of the United States for the
Southern District of New York, and appellate
courts from any thereof;
(ii) consents that any such action or
proceeding may be brought in such courts, and
waives any objection that it may now or hereafter
have to the venue of any such action or proceeding
in any such court or that such action or
proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(iii) agrees that service of process in
any such action or proceeding may be effected by
mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail),
postage prepaid, to such party at its address set
forth in subsection 11.2 or at such other address
of which the Administrative Agent shall have been
notified pursuant thereto; and
(iv) agrees that nothing herein shall
affect the right to effect service of process in
any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
(b) Each party hereto unconditionally
waives trial by jury in any legal action or
proceeding referred to in paragraph (a) above and
any counterclaim therein.
11.11 Releases. The Administrative Agent
and Lenders agree to cooperate with the Company and its
Subsidiaries with respect to any sale or other
disposition permitted by subsection 8.5 and promptly
take such action and execute and deliver such
instruments and documents necessary to release the
liens and security interests created by the Security
Documents relating to any of the assets or property
affected by any such sale permitted by subsection 8.5.
including, without limitation, any Uniform Commercial
Code amendment, release or termination or partial
release or termination statements.
11.12 Interest. Each provision in this
Agreement and each other Credit Document is expressly
limited so that in no event whatsoever shall the amount
paid, or otherwise agreed to be paid, by the Company
for the use, forbearance or detention of the money to
be loaned under this Agreement or any other Credit
Document or otherwise (including any sums paid as
required by any covenant or obligation contained herein
or in any other Credit Document which is for the use,
forbearance or detention of such money), exceed that
amount of money which would cause the effective rate of
interest to exceed the highest lawful rate permitted by
applicable law (the "Highest Lawful Rate"), and all
amounts owed under this Agreement and each other Credit
Document shall be held to be subject to reduction to
the effect that such amounts so paid or agreed to be
paid which are for the use, forbearance or detention of
money under this Agreement or such other Credit
Document shall in no event exceed that amount of money
which would cause the effective rate of interest to
exceed the Highest Lawful Rate. Notwithstanding any
provision in this Agreement or any other Credit
Document to the contrary, if the maturity of the Loans
or the obligations in respect of the other Credit
Documents are accelerated for any reason, or in the
event of any prepayment of all or any portion of the
Loans or the obligations in respect of the other Credit
Documents by the Company or in any other event, earned
interest on the Loans and such other obligations of the
Company may never exceed the Highest Lawful Rate, and
any unearned interest otherwise payable on the Loans or
the obligations in respect of the other Credit
Documents that is in excess of the Highest Lawful Rate
shall be cancelled automatically as of the date of such
acceleration or prepayment or other such event and (if
theretofore paid) shall, at the option of the holder of
the Loans or such other obligations, be either refunded
to the Company or credited on the principal of the
Loans. In determining whether or not the interest paid
or payable, under any specific contingency, exceeds the
Highest Lawful Rate, the Company and the Lenders shall,
to the maximum extent permitted by applicable law,
amortize, prorate, allocate and spread, in equal parts
during the period of the actual term of this Agreement,
all interest at any time contracted for, charged,
received or reserved in connection with this Agreement.
11.13 Special Indemnification.
Notwithstanding any provision in this Agreement to the
contrary, (A) each Lender, or Transferee of any Lender
pursuant to subsection 11.6(g) of this Agreement, shall
indemnify the Company and the Administrative Agent, and
hold each of them harmless against any and all
payments, expenses or taxes which the Company or the
Administrative Agent may become subject to or obligated
to pay if and to the extent that, (i) on the Closing
Date or the effective date of transfer, as the case may
be, such Lender, or such Transferee of a Lender
pursuant to subsection 11.6(g) of this Agreement, (a)
makes the representation and covenants set forth in
subsection 4.11(d)(2) of this Agreement, or, in the
case of a Transferee, pursuant to subsection 11.6(g)(2)
of this Agreement and the Assignment and Acceptance,
and (b) is not in fact also qualified to make the
representation and covenants set forth in subsection
4.11(d)(1) of this Agreement or, in the case of a
Transferee, pursuant to subsection 11.6(g)(2) of this
Agreement and the Assignment and Acceptance, and (ii)
as a result of any Change in Law or compliance by such
Lender, or Transferee, with any request or directive
(whether or not having the force of law) from any
central bank or other Governmental Authority the
Company or the Administrative Agent is required to make
any additional payments on account of U.S. withholding
taxes and amounts related thereto with respect to any
payments under this Agreement, any Note, or a
Eurodollar Loan, made prior to such Change in Law or
request or directive, none of which payments would have
been required if such Lender, or Transferee, was
qualified on the Closing Date or the date of the
transfer, as the case may be, to make the
representation and covenants set forth in subsection
4.11(d)(1) of this Agreement or pursuant to subsection
11.6(g)(1) of this Agreement and the Assignment and
Acceptance, as the case may be, and (B) each Lender, or
Transferee, agrees that to the extent any amount
payable by such Lender or Transferee pursuant to this
subsection 11.13 remains unpaid on any Interest Payment
Date or the date on which any prepayment is made, the
Company shall have the right to set-off against any
payment due to such Lender or Transferee on such date
any amounts owing to the Company pursuant to this
subsection 11.13.
11.14 Permitted Payments and Transactions.
Notwithstanding any provision to the contrary contained in
this Agreement, the Company and its Subsidiaries shall be
permitted to pay fees and expenses pursuant to or in respect
of, the following agreements, and, in the case of clauses
(a) and (d) below, to engage in the following transactions:
(a)(i) the Agreement for Management and Advisory Services,
between Investcorp International, Inc. ("III") and
AcquisitionCo dated as of June 17, 1997, (ii) the Loan
Financing Advisory Agreement between III and AcquisitionCo
dated as of March 20, 1997, (iii) the Equity Placement Fee
Letter between Investcorp and AcquisitionCo dated June 17,
1997, (iv) the Standby Commitment Agreement between
AcquisitionCo and Invifin S.A. dated as of June 17, 1997
and (v) the Merger Agreement; (b) agreements with any Person
or Persons providing for the payment of customary fees in
connection with serving as a director of the Company or any
Subsidiary of the Company; (c) agreements providing for the
payment of commercially reasonable fees in connection with
any permitted financing, refinancing, sale, transfer, sale
and leaseback or other permitted disposition of any assets
of the Company or its Subsidiaries; (d) the borrowing of any
Indebtedness to the extent, and upon the terms and
conditions, the same is expressly permitted under subsection
8.1; and (e) agreements providing for commercially
reasonable fees in connection with any permitted purchase or
acquisition of stock or assets by the Company or any of its
Subsidiaries.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered in New
York, New York by their proper and duly authorized officers
as of the day and year first above written.
FALCON BUILDING PRODUCTS, INC.
By: /s/ Gus J. Athas
-----------------
Title: Senior Vice President
and General Counsel
THE CHASE MANHATTAN BANK, as
Administrative Agent, Issuing
Lender and a Lender
By: /s/ Deborah Davey
-----------------
Title: Vice President
BANKERS TRUST COMPANY, as
Documentation Agent and as a
Lender
By: /s/ Patricia Hogan
------------------
Title: Vice President
BANKBOSTON, N.A.
By: /s/ Timothy M. Barns
--------------------
Title: Division Executive
CITICORP USA, INC.
By: /s/ Jerome Fikke
----------------
Title: Managing Director attorney in fact
FLEET NATIONAL BANK
By: /s/ James T. Anderson
---------------------
Title: Managing Director
FIRST UNION NATIONAL BANK OF NORTH CAROLINA
By: /s/ Henry R. Biedrzycki
-----------------------
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Kenneth Sweder
------------------
Title: Assistant Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ David Bouhl, F.V.P.
-----------------------
Title: Head of Corporate Banking Chicago
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By: /s/ Paul P. Malecki
-------------------
Title: Vice President
HARRIS TRUST & SAVINGS BANK
By: /s/ John M. Dillon
------------------
Title: Vice President
NATIONAL WESTMINSTER BANK PLC
By: /s/ Edward J. Weld
------------------
Title: Vice President
HELLER FINANCIAL, INC.
By: /s/ Linda W. Wolf
-----------------
Title: Senior Vice President
THE LONG TERM CREDIT BANK OF
JAPAN, LTD., CHICAGO BRANCH
By: /s/ Armund J. Schoen, Jr.
-------------------------
Title: Vice President & Deputy General Manager
NATIONSBANK, N.A.
By: /s/ Wallace Harris, Jr.
-----------------------
Title: Vice President
MERRILL LYNCH SENIOR FLOATING RATE FUND, INC.
By: /s/ Gilles Marchand
-------------------
Title: Authorized Signatory
DEBT STRATEGIES FUND, INC.
By: /s/ Gilles Marchand
-------------------
Title: Authorized Signatory
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: /s/ Jeffrey W. Maillet
----------------------
Title: Senior Vice President & Director
DEEPROCK & COMPANY
By: Eaton Vance Management, as
Investment Advisor
By: /s/ Payson Swaffield
--------------------
Title: Vice President
PILGRIM AMERICA PRIME RATE TRUST
By: /s/ Michael J.Bacevich
----------------------
Title: Vice President
PRIME INCOME TRUST
By: /s/ Rafael Scolari
------------------
Title: Vice President
CRESCENT/MACH I PARTNERS, L.P.
By: TCW ASSET MANAGEMENT
COMPANY, AS INVESTMENTS MANAGER
By: /s/ Mark L. Gold
----------------
Title: Managing Director
KZH HOLDING CORPORATION
By: /s/ Virginia Conway
-------------------
Title: Authorized Agent
KZH HOLDING CORPORATION II
By: /s/ Virginia Conway
-------------------
Title: Authorized Agent
NORTHERN LIFE INSURANCE COMPANY
BY: ING CAPITAL ADVISORS, INC.,
AS INVESTMENT ADVISOR
By: /s/ Michael D. Hatley
---------------------
Title: Vice President &
Portfolio Manager
RELIASTAR UNITED SERVICES LIFE
INSURANCE COMPANY
BY: ING CAPITAL ADVISORS, INC.,
AS INVESTMENT ADVISOR
By: /s/ Michael D. Hatley
---------------------
Title: Vice President &
Portfolio Manager
