Exhibit T3C-2 Indenture
Exhibit
T3C-2
WCI
STEEL, INC.,
as
Issuer
and
WILMINGTON
TRUST COMPANY,
as
Trustee
INDENTURE
Dated
as of May 1, 2006
$100,000,000
8%
Senior Secured Notes
due
2016
CROSS-REFERENCE
TABLE
TIA
Section
|
Indenture
Section
|
310(a)(1)
|
7.10
|
(a)(2)
|
7.10
|
(a)(3)
|
N.A.
|
(a)(4)
|
N.A.
|
(a)(5)
|
7.10
|
(b)
|
7.08;
7.10; 12.02
|
(c)
|
N.A.
|
311(a)
|
7.11
|
(b)
|
7.11
|
(c)
|
N.A.
|
312(a)
|
2.05
|
(b)
|
12.03
|
(c)
|
12.03
|
313(a)
|
7.06
|
(b)(1)
|
N.A.
|
(b)(2)
|
7.06
|
(c)
|
7.06;
12.02
|
(d)
|
7.06
|
314(a)
|
4.07;
4.09; 12.02
|
(b)
|
10.02
|
(c)(1)
|
12.04
|
(c)(2)
|
12.04
|
(c)(3)
|
N.A.
|
(d)
|
10.03
|
(e)
|
12.05
|
(f)
|
N.A.
|
315(a)
|
7.01(b)
|
(b)
|
7.05;
12.02
|
(c)
|
7.01(a)
|
(d)
|
7.01(c)
|
(e)
|
6.11
|
316(a)(last
sentence)
|
2.09
|
(a)(1)(A)
|
6.05
|
(a)(1)(B)
|
6.04
|
(a)(2)
|
N.A.
|
(b)
|
6.07
|
317(a)(1)
|
6.08
|
(a)(2)
|
6.09
|
(b)
|
2.04
|
318(a)
|
12.01
|
(c)
|
12.01
|
N.A.
means Not Applicable
NOTE:
This Cross -Reference Table shall not, for any purpose, be deemed to be a part
of the Indenture.
i
TABLE
OF CONTENTS
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION
1.01.
|
Definitions.
|
1
|
SECTION
1.02.
|
Incorporation
by Reference of TIA.
|
19
|
SECTION
1.03.
|
Rules
of Construction.
|
19
|
SECTION
2.01.
|
Form
and Dating.
|
20
|
SECTION
2.02.
|
Execution
and Authentication.
|
20
|
SECTION
2.03.
|
Registrar
and Paying Agent.
|
21
|
SECTION
2.04.
|
Paying
Agent To Hold Assets in Trust.
|
22
|
SECTION
2.05.
|
Holder
Lists.
|
22
|
SECTION
2.06.
|
Transfer
and Exchange.
|
22
|
SECTION
2.07.
|
Replacement
Notes.
|
26
|
SECTION
2.08.
|
Outstanding
Notes.
|
26
|
SECTION
2.09.
|
Treasury
Notes.
|
27
|
SECTION
2.10.
|
Temporary
Notes.
|
27
|
SECTION
2.11.
|
Cancellation.
|
27
|
SECTION
2.12.
|
Defaulted
Interest.
|
27
|
SECTION
2.13.
|
CUSIP
Number.
|
28
|
SECTION
2.14.
|
Designation.
|
28
|
SECTION
2.15.
|
Exemption
From Federal and State Law Securities Registration
Requirements.
|
28
|
SECTION
3.01.
|
Optional
Redemption.
|
28
|
SECTION
3.02.
|
Notices
to Trustee.
|
29
|
SECTION
3.03.
|
Selection
of Notes To Be Redeemed.
|
29
|
SECTION
3.04.
|
Notice
of Redemption.
|
29
|
SECTION
3.05.
|
Effect
of Notice of Redemption.
|
30
|
SECTION
3.06.
|
Deposit
of Redemption Price.
|
30
|
SECTION
3.07.
|
Notes
Redeemed in Part.
|
30
|
SECTION
4.01.
|
Payment
of Notes.
|
31
|
ii
SECTION
4.02.
|
Maintenance
of Office or Agency.
|
31
|
SECTION
4.03.
|
Limitation
on Restricted Payments.
|
31
|
SECTION
4.04.
|
Corporate
Existence.
|
33
|
SECTION
4.05.
|
Payment
of Taxes and Other Claims.
|
33
|
SECTION
4.06.
|
Maintenance
of Properties and Insurance.
|
34
|
SECTION
4.07.
|
Compliance
Certificate; Notice of Default.
|
34
|
SECTION
4.08.
|
Compliance
with Laws.
|
35
|
SECTION
4.09.
|
SEC
Reports and Other Information.
|
35
|
SECTION
4.10.
|
Waiver
of Stay, Extension or Usury Laws.
|
36
|
SECTION
4.11.
|
Limitation
on Transactions with Affiliates.
|
36
|
SECTION
4.12.
|
Limitation
on Incurrence of Additional Indebtedness.
|
37
|
SECTION
4.13.
|
Limitation
on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
|
37
|
SECTION
4.14.
|
Limitation
on Liens.
|
38
|
SECTION
4.15.
|
Change
of Control.
|
38
|
SECTION
4.16.
|
Limitation
on Asset Sales.
|
40
|
SECTION
4.17.
|
Limitation
on Sale/leaseback Transactions.
|
43
|
SECTION
4.18.
|
Limitation
on Preferred Stock of Subsidiaries.
|
43
|
SECTION
4.19.
|
Future
Guarantees.
|
43
|
SECTION
4.20.
|
Impairment
of Note Interest.
|
43
|
SECTION
4.21.
|
Amendment
to Collateral Documents.
|
44
|
SECTION
4.22.
|
Inspection
and Confidentiality.
|
44
|
SECTION
4.23.
|
Release
of Released Real Property.
|
44
|
ARTICLE
FIVE
|
|
|
|
SUCCESSOR
CORPORATION
|
SECTION
5.01.
|
When
Company May Merge, Etc.
|
44
|
SECTION
5.02.
|
Successor
Corporation Substituted.
|
46
|
ARTICLE
SIX
|
|
|
|
DEFAULT
AND REMEDIES
|
SECTION
6.01.
|
Events
of Default.
|
46
|
SECTION
6.02.
|
Acceleration.
|
48
|
SECTION
6.03.
|
Other
Remedies.
|
48
|
SECTION
6.04.
|
Waiver
of Past Defaults.
|
49
|
SECTION
6.05.
|
Control
by Majority.
|
49
|
SECTION
6.06.
|
Limitation
on Suits.
|
49
|
SECTION
6.07.
|
Rights
of Holders To Receive Payment.
|
50
|
SECTION
6.08.
|
Collection
Suit by Trustee.
|
50
|
SECTION
6.09.
|
Trustee
May File Proofs of Claim.
|
50
|
SECTION
6.10.
|
Priorities.
|
51
|
SECTION
6.11.
|
Undertaking
for Costs.
|
51
|
iii
SECTION
7.01.
|
Duties
of Trustee.
|
51
|
SECTION
7.02.
|
Rights
of Trustee.
|
52
|
SECTION
7.03.
|
Individual
Rights of Trustee.
|
54
|
SECTION
7.04.
|
Trustee’s
Disclaimer.
|
54
|
SECTION
7.05.
|
Notice
of Default.
|
54
|
SECTION
7.06.
|
Reports
by Trustee to Holders.
|
54
|
SECTION
7.07.
|
Compensation
and Indemnity.
|
54
|
SECTION
7.08.
|
Replacement
of Trustee.
|
55
|
SECTION
7.09.
|
Successor
Trustee by Merger, Etc.
|
56
|
SECTION
7.10.
|
Eligibility;
Disqualification.
|
56
|
SECTION
7.11.
|
Preferential
Collection of Claims Against Company.
|
57
|
ARTICLE
EIGHT
|
|
|
|
DISCHARGE
OF INDENTURE; DEFEASANCE
|
SECTION
8.01.
|
Termination
of Company’s Obligations.
|
57
|
SECTION
8.02.
|
Legal
Defeasance and Covenant Defeasance.
|
58
|
SECTION
8.03.
|
Application
of Trust Money.
|
61
|
SECTION
8.04.
|
Repayment
to Company.
|
61
|
SECTION
8.05.
|
Reinstatement.
|
61
|
ARTICLE
NINE
|
|
|
|
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
|
SECTION
9.01.
|
Without
Consent of Holders.
|
62
|
SECTION
9.02.
|
With
Consent of Holders.
|
62
|
SECTION
9.03.
|
Compliance
with TIA.
|
64
|
SECTION
9.04.
|
Revocation
and Effect of Consents.
|
64
|
SECTION
9.05.
|
Notation
on or Exchange of Notes.
|
64
|
SECTION
9.06.
|
Trustee
To Sign Amendments, Etc.
|
64
|
ARTICLE
TEN
|
|
|
|
COLLATERAL
DOCUMENTS
|
SECTION
10.01.
|
Collateral
and Collateral Documents.
|
65
|
SECTION
10.02.
|
Recording;
Priority; Opinions, Etc.
|
65
|
SECTION
10.03.
|
Release
of Collateral.
|
66
|
SECTION
10.04.
|
Disposition
of Collateral Without Release.
|
69
|
SECTION
10.05.
|
Eminent
Domain and Other Governmental Takings.
|
69
|
SECTION
10.06.
|
Trust
Indenture Act Requirements.
|
71
|
SECTION
10.07.
|
Suits
To Protect Collateral.
|
71
|
iv
SECTION
10.08.
|
Purchaser
Protected.
|
71
|
SECTION
10.09.
|
Powers
Exercisable by Receiver or Trustee.
|
72
|
SECTION
10.10.
|
Determinations
Relating to Collateral.
|
72
|
SECTION
10.11.
|
Form
and Sufficiency of Release.
|
72
|
SECTION
10.12.
|
Possession
and Use of Collateral.
|
73
|
SECTION
10.13.
|
Disposition
of Obligations Received.
|
73
|
SECTION
10.14.
|
Release
upon Termination of the Company’s Obligations.
|
73
|
ARTICLE
ELEVEN
|
|
|
|
APPLICATION
OF TRUST MONEYS
|
SECTION
11.01.
|
“Trust
Moneys” Defined.
|
73
|
SECTION
11.02.
|
Withdrawals
of Insurance Proceeds and Condemnation Awards.
|
74
|
SECTION
11.03.
|
Withdrawal
of Trust Moneys on Basis of Retirement of Notes.
|
77
|
SECTION
11.04.
|
Withdrawal
of Trust Moneys for Reinvestment.
|
78
|
SECTION
11.05.
|
Powers
Exercisable Notwithstanding Default or Event of Default.
|
80
|
SECTION
11.06.
|
Powers
Exercisable by Trustee or Receiver.
|
80
|
SECTION
11.07.
|
Investment
of Trust Moneys.
|
80
|
ARTICLE
TWELVE
|
|
|
|
MISCELLANEOUS
|
SECTION
12.01.
|
TIA
Controls.
|
81
|
SECTION
12.02.
|
Notices.
|
81
|
SECTION
12.03.
|
Communications
by Holders with Other Holders.
|
82
|
SECTION
12.04.
|
Certificate
and Opinion as to Conditions Precedent.
|
82
|
SECTION
12.05.
|
Statements
Required in Certificate or Opinion.
|
83
|
SECTION
12.06.
|
Rules
by Trustee, Paying Agent, Registrar.
|
83
|
SECTION
12.07.
|
Legal
Holidays.
|
83
|
SECTION
12.08.
|
Governing
Law.
|
83
|
SECTION
12.09.
|
No
Adverse Interpretation of Other Agreements.
|
83
|
SECTION
12.10.
|
No
Recourse Against Others.
|
84
|
SECTION
12.11.
|
Successors.
|
84
|
SECTION
12.12.
|
Duplicate
Originals.
|
84
|
SECTION
12.13.
|
Severability.
|
84
|
Exhibit
A
- Form
of
Note
Note
:
This Table of Contents shall not, for any purpose, be deemed to be part of
the
Indenture.
v
INDENTURE,
dated as of May 1, 2006, by and between WCI STEEL, INC., a Delaware corporation
(the “Company”), as issuer, and WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as Trustee (the “Trustee”).
The
Company has duly authorized the creation of an issue of 8% Senior Secured Notes
due 2016 (the “Notes”) that the Company will issue pursuant to this Indenture,
and, to provide therefor, the Company has duly authorized the execution and
delivery of this Indenture. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done, and
the
Company has done all things necessary to make the Notes, when executed by the
Company and authenticated and delivered by the Trustee hereunder and duly issued
by the Company, legal, valid and binding obligations of the Company as
hereinafter provided.
Each
party hereto agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders (as defined below):
ARTICLE
ONE
DEFINITIONS
AND INCORPORATION BY REFERENCE
SECTION
1.01. Definitions.
“Acquired
Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing
at the time such Person becomes a Subsidiary of the Company or assumed in
connection with the acquisition of assets from such Person, including
Indebtedness incurred by such Person in connection with, or in anticipation
or
contemplation of, such Person becoming a Subsidiary of the Company or such
acquisition.
“Affiliate”
of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control” when used
with respect to any Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “affiliated,” “controlling”
and “controlled” have meanings correlative of the foregoing. For purposes of
Section 4.11, the term “Affiliate” shall include any Person who, as a result of
any transaction described therein, would become an Affiliate. Notwithstanding
anything to the contrary provided herein or in the Notes, for purposes of
Section 4.11, no Holder, its affiliates or Subsidiaries shall be deemed to
be an
Affiliate of the Company, other than the Company or its
Subsidiaries.
“Affiliate
Transaction” has the meaning provided in Section 4.11.
“Agent”
means the Registrar or any Paying Agent.
“Agent
Member” means any member of, or participant in, the Depositary.
“Applicable
Premium” means, with respect to any Note on any applicable Redemption Date, the
greater of: (1) 1.0% of the then outstanding principal amount of the
Note;
and
(2)
the excess of: (a) the present value at such Redemption Date of (i) the
redemption price of the Note at the Maturity Date plus (ii) all required
interest payments due on the such Notes through the Maturity Date (excluding
accrued but unpaid interest to the Redemption Date) computed using a discount
rate equal to the Treasury Rate as of such Redemption Date plus 50 basis points;
over (b) the then outstanding principal amount of the Notes, if
greater.
“Applicable
Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary,
Clearstream and Cedel that apply to such transfer or exchange.
“Appraiser”
means a Person who in the course of its business appraises property and who
is a
member in good standing of the American Institute of Real Estate Appraisers,
recognized and licensed to do business in the jurisdiction where the applicable
Real Property is located.
“Asset
Acquisition” means (i) an Investment by the Company or any Subsidiary of the
Company in any other Person pursuant to which such Person shall become a
Subsidiary of the Company or any Subsidiary of the Company or shall be merged
with the Company or any Subsidiary of the Company or (ii) the acquisition by
the
Company or any Subsidiary of the Company of the assets of any Person which
constitute all or substantially all of the assets of such Person or any division
or line of business of such Person.
“Asset
Sale” means any direct or indirect sale, issuance, conveyance, transfer, lease,
assignment or other transfer for value by the Company or any of its Subsidiaries
(including any Sale/leaseback (other than a Sale/leaseback of an asset
constituting Collateral)) to any Person, in one transaction or a series of
related transactions, of (i) any Capital Stock of any Subsidiary of the Company;
(ii) all or substantially all of the properties and assets of any division
or
line of business of the Company or any Subsidiary of the Company; or (iii)
any
other properties or assets of the Company or any Subsidiary of the Company
other
than in the ordinary course of business. For the purposes of this definition,
the term “Asset Sale” shall not include any sale, issuance, conveyance,
transfer, lease or other disposition of properties or assets that is consummated
in accordance with the provisions of Article Five.
“Asset
Sale Offer” has the meaning provided in Section 4.16.
“Asset
Sale Offer Payment Date” means, with respect to any Available Amount from an
Asset Sale, the earlier of (x) the 180th day following receipt of such Available
Amount or (y) such earlier date on which an Asset Sale Offer shall
expire.
“Average
Weighted Life to Maturity” means, when applied to any Indebtedness at any date,
the number of years obtained by dividing: (1) 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 of the Indebtedness, 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 (2) the then outstanding principal amount of
such
Indebtedness.
“Asset
Sale Release Notice” has the meaning provided in Section
10.03.
“Available
Amount” has the meaning provided in Section 4.16.
“Bankruptcy
Code” means Title 11 of the U.S. Code.
“Bankruptcy
Law” means the Bankruptcy Code or any similar Federal, state or foreign law for
the relief of debtors.
“Board
of
Directors” means, with respect to any Person, the Board of Directors of such
Person or any committee of the Board of Directors of such Person duly
authorized, with respect to any particular matter, to exercise the power of
the
Board of Directors of such Person.
“Board
Resolution” means with respect to any Person, a copy of a resolution certified
by the Secretary or an Assistant Secretary of such Person to have been duly
adopted by the Board of Directors of such Person and to be in full force and
effect on the date of such certification, and delivered to the
Trustee.
“Business
Day” means any day that is not a Legal Holiday.
“Capital
Expenditures” shall mean payments for any assets, or improvements, replacements,
substitutions or additions thereto, that have a useful life of more than one
year and which, in accordance with GAAP consistently applied, are required
to be
capitalized (as opposed to expensed in the period in which the payment
occurred).
“Capital
Lease,” as applied to any Person, means any lease of (or any agreement conveying
the right to use) any property (whether real, personal or mixed) by such Person
as lessee which, in conformity with GAAP, is required to be accounted for as
a
capital lease on the balance sheet of such Person.
“Capital
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s
capital stock, whether outstanding at the Issue Date or issued after the Issue
Date, and any and all rights, warrants or options exchangeable for or
convertible into such capital stock (but excluding any debt security that is
exchangeable for or convertible into such capital stock).
“Capitalized
Lease Obligation” means, as to any Person, the obligations of such Person under
a Capital Lease and, for purposes of this Indenture, the amount of such
obligations at any date shall be the capitalized amount of such obligations
at
such date, determined in accordance with GAAP.
“Cash
Available to Pay Dividends” means twenty percent (20%) of Cumulative Operating
Cash Flow.
“Cash
Equivalents” means (i) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government or issued by any
agency thereof and backed by the full faith and credit of the United States,
in
each case maturing within two years from the date of acquisition thereof; (ii)
marketable direct obligations issued by any state of
the
United States of America or any political subdivision of any such state or
any
public instrumentality thereof maturing within two years from the date of
acquisition thereof and, at the
time
of acquisition, having one of the two highest ratings obtainable from either
Standard & Poor’s or Moody’s; (iii) commercial paper maturing no more than
two years from the date of creation thereof and, at the time of acquisition,
having a rating (at the time of investment) of at least A-1 from Standard &
Poor’s at least P-1 from Moody’s; (iv) certificates of deposit or bankers’
acceptances maturing within two years from the date of acquisition thereof
issued by any commercial bank organized under the laws of the United States
of
America or any state thereof or the District of Columbia or any U.S. branch
of a
foreign bank having at the date of acquisition thereof combined capital and
surplus of not less than $500,000,000 (at the time of investment); (v)
repurchase obligations with a term of not more than seven days for underlying
securities of the types described in clause (i) above entered into with any
bank
meeting the qualifications specified in clause (iv) above; and (vi) investments
in money market funds which invest substantially all their assets in securities
of the types described in clauses (i) through (v) above. Notwithstanding the
foregoing, for purposes of clause (i) of the definition of “Permitted
Investment,” 20% of the Cash Equivalents may include securities having a rating
of at least BBB by Standard & Poor’s, and Baa by Moody’s.
“CEDEL”
means Cedel Bank, Societe Anonyme (or any successor securities clearing
agency).
“Change
of Control” means the occurrence of one or more of the following events: (i) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Company
to any Person or group of related Persons for purposes of Section 13(d) of
the
Exchange Act (a “Group”) (other than a Permitted Holder or a Group controlled by
a Permitted Holder), together with any Affiliates thereof (whether or not
otherwise in compliance with the provisions of this Indenture); (ii) the
approval by the holders of Capital Stock of the Company of any plan or proposal
for the liquidation or dissolution of the Company (whether or not otherwise
in
compliance with the provisions of this Indenture); or (iii) the acquisition
in
one or more transactions of “beneficial ownership” (within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act, except that Person shall be deemed
to
have “beneficial ownership” of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time) by any Person, entity or Group (other than a Permitted Holder or a
Group controlled by any Permitted Holder) of any Capital Stock of the Company
such that, as a result of such acquisition, such Person, entity or Group either
(A) beneficially owns (within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, more than 50% of the Company’s then
outstanding voting securities entitled to vote on a regular basis in an election
for a majority of the Board of Directors of the Company or (B) otherwise has
the
ability to elect, directly or indirectly, a majority of the members of the
Company’s Board of Directors.
“Change
of Control Date” has the meaning provided in Section 4.15.
“Change
of Control Offer” has the meaning provided in Section 4.15.
“Change
of Control Payment Date” has the meaning provided in Section 4.15.
“Clearstream”
means Clearstream Banking, S.A.
“Collateral”
means, collectively, all of the property and assets (including Trust Moneys)
that are from time to time subject to, or purported to be subject to, the Lien
of this Indenture or the Collateral Documents, except (i) Credit Agreement
Collateral, (ii) any new property, plant and equipment obtained with purchase
money financing, and (iii) any asset subject to a lien securing an Allowed
Other
Secured Claim (as defined in the Noteholders’ Consensual Modified Plan of
Reorganization in the Chapter 11 case in the Bankruptcy Court for the Northern
District of Ohio as Case No. 05-81439 (in re WCI Steel, Inc.) filed on March
27,
2006 (the “Noteholders’ Consensual Modified Plan”), that is not discharged
pursuant to the Noteholders’ Modified Consensual Plan, subject, however, to a
prior conditional mortgage and security interest securing Hardship Benefits
(as
defined in the Noteholders’ Consensual Modified Plan) in an amount not exceeding
$75,000,000, all as set forth in the Revised CBA (as defined in the Noteholders’
Consensual Modified Plan).
“Collateral
Account” has the meaning provided in Section 11.01.
“Collateral
Agent” shall mean Wilmington Trust Company, a national banking association, in
its capacity as collateral agent under the Collateral Documents, and any
successor thereto in such capacity.
“Collateral
Documents” means, collectively, the Mortgage, the Intercreditor Agreements and
all other instruments or documents entered into or delivered in connection
with
any of the foregoing, as such agreements, instruments or documents may be
amended, amended and restated, supplemented or otherwise modified from time
to
time.
“Collateral
Proceeds” has the meaning provided in Section 4.16.
“Collateral
Trust” means the collateral trust estate established under that certain
Collateral Trust Agreement.
“Collateral
Trust Agreement” dated as of May 1, 2006, among the Collateral Trustee, the
Collateral Agent and the Company.
“Collateral
Trustee” means The Bank of New York Trust Company, N.A. in its capacity as
Collateral Trustee under the Collateral Trust Agreement.
“Collateral
Trust Intercreditor Agreement” means the Collateral Trust Intercreditor
Agreement, dated as of May 1, 2006, by and between the Trustee, the Collateral
Trustee and the Company, as amended, supplemented or otherwise modified from
time to time in accordance with the terms thereof or any replacement
thereof.
“Collateral
Trust Mortgage” means the mortgage dated as of the date hereof between the
Company and the Collateral Trustee, as the same may be amended, amended and
restated, supplemented or otherwise modified from time to time.
“Commodity
Price Protection Agreement” means with respect to any Person any forward
contract, commodity swap, commodity option or other similar agreement or arrangement
relating to, or the value of which is dependent upon or which is designed to
protect such Person against, fluctuations in commodity
prices.
“Company”
means the party named as such in this Indenture until a successor replaces
it
pursuant to this Indenture and thereafter means such successor.
“Company
Order” means a written order or request signed in the name of the Company by its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its
Secretary or an Assistant Secretary, and delivered to the Trustee.
“Consolidated
EBITDA” means, with respect to any Person, for any period, the sum (without
duplication) of (i) Consolidated Net Income, (ii) to the extent Consolidated
Net
Income has been reduced thereby, all income taxes of such Person and its
Subsidiaries paid or accrued in accordance with GAAP for such period (other
than
income taxes attributable to extraordinary, unusual or non-recurring gains
or
losses), Consolidated Interest Expense (net of any interest income),
amortization expense (including amortization of deferred financing costs) and
depreciation expense and (iii) other non-cash items other than non-cash interest
reducing Consolidated Net Income (including any non-cash charges in respect
of
post-employment benefits for health care, life insurance and long-term
disability benefits required in accordance with GAAP) less other non-cash items
increasing Consolidated Net Income, all as determined on a consolidated basis
for such Person and its Subsidiaries in accordance with GAAP.
“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person, the ratio of
Consolidated EBITDA of such Person during the four full fiscal quarters (the
“Four Quarter Period”) ending on or prior to the date of the transaction giving
rise to the need to calculate the Consolidated Fixed Charge Coverage Ratio
(the
“Transaction Date”) to Consolidated Fixed Charges of such Person for the Four
Quarter Period. For purposes of this definition, if the Transaction Date occurs
prior to the date on which four full fiscal quarters have elapsed subsequent
to
the Issue Date and financial statements with respect thereto are available,
“Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated, in
the case of the Company, after giving effect on a pro forma basis to the
issuance of the Notes and the application of the net proceeds therefrom as
if
the Notes were issued on the first day of the Four Quarter Period. In addition
to and without limitation of the foregoing, for purposes of this definition,
“Consolidated EBITDA” and “Consolidated Fixed Charges” shall be calculated after
giving effect on a pro forma basis for the period of such calculation to (i)
the
incurrence of any Indebtedness of such Person or any of its Subsidiaries giving
rise to the need to make such calculation and any incurrence of other
Indebtedness at any time on or after the first day of the Four Quarter Period
and on or prior to the Transaction Date (the “Reference Period”), as if such
incurrence occurred on the first day of the Reference Period and (ii) any Asset
Sales or Asset Acquisitions (including any Asset Acquisition giving rise to
the
need to make such calculation as a result of such Person or one of its
Subsidiaries (including any Person who becomes a Subsidiary as a result of
the
Asset Acquisition) incurring, assuming or otherwise being liable for Acquired
Indebtedness) occurring during the Reference Period, as if such Asset Sale
or
Asset Acquisition (including the incurrence, assumption or liability for any
such Indebtedness or Acquired Indebtedness) occurred on the first day of the
Reference Period. If such Person or any of its Subsidiaries directly or
indirectly guarantees Indebtedness of a third Person, the preceding sentence
shall give effect to the incurrence of such guaranteed Indebtedness as if such
Person or any
Subsidiary of such Person had directly incurred or otherwise assumed such
guaranteed Indebtedness. Furthermore, in calculating “Consolidated Fixed
Charges” for purposes of determining the denominator (but not the numerator) of
this “Consolidated Fixed Charge
Coverage
Ratio,” (1) interest on Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall
be
deemed to have accrued at a fixed rate per annum equal to the rate of interest
on such Indebtedness in effect on the Transaction Date; (2) if interest on
any
Indebtedness actually incurred on the Transaction Date 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 rates, then the interest rate
in
effect on the Transaction Date will be deemed to have been in effect during
the
Reference Period; and (3) notwithstanding clause (1) above, interest on
Indebtedness determined on a fluctuating basis, to the extent such interest
is
covered by agreements relating to Interest Rate Protection Obligations, shall
be
deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements. In calculating the Consolidated Fixed Charge
Coverage Ratio, and giving pro forma effect to any incurrence of Indebtedness
during the Reference Period, pro forma effect shall be given to the use of
the
proceeds thereof to permanently repay or retire Indebtedness.
“Consolidated
Fixed Charges” means, with respect to any Person for any period, the sum of,
without duplication, the amounts for such period, taken as a single accounting
period, of (i) Consolidated Interest Expense (net of any interest income) less
non-cash amortization of deferred financing costs and (ii) the product of (x)
the amount of all dividends declared, paid or accrued on Preferred Stock of
such
Person during such period times (y) a fraction, the numerator of which is one
and the denominator of which is one minus the then current effective
consolidated Federal, state, local and foreign tax rate (expressed as a decimal
number between 1 and 0) of such Person during such period (as reflected in
the
audited consolidated financial statements of such Person for the most recently
completed fiscal year).
“Consolidated
Income Tax Expense” shall mean, with respect to the Company for any period, the
provision for federal, state, local and foreign income taxes payable by the
Company and its Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
“Consolidated
Interest Expense” means, with respect to any Person for any period, without
duplication, the sum of (i) the interest expense of such Person and its
Subsidiaries for such period as determined on a consolidated basis in accordance
with GAAP consistently applied, including (a) any amortization of debt discount,
(b) the net cost under Interest Rate Protection Obligations (including any
amortization of discounts), (c) the interest portion of any deferred payment
obligation and (d) all accrued interest, and (ii) the interest component of
Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or
accrued by such Person and its Subsidiaries during such period as determined
on
a consolidated basis in accordance with GAAP consistently applied.
“Consolidated
Net Income” means, with respect to any Person for any period, the net income (or
loss) of such Person and its Subsidiaries, on a consolidated basis for such
period determined in accordance with GAAP; provided that (i) the net income
of
any Person in which such Person or any Subsidiary of such Person has an
ownership interest with a third party shall be included only to the extent
of
the amount that has actually been received by such Person or its Wholly-owned
Subsidiaries in the form of dividends or other distributions during such period
(subject to, in the case of any dividend or distribution received by a
Wholly-owned Subsidiary of such Person, the restrictions set forth in clause
(ii) below) and (ii) the net income of any
Subsidiary
of such Person that is subject to any restriction or limitation on the payment
of dividends or the making of other distributions shall be excluded to the
extent of such restriction or limitation; provided, further, that there shall
be
excluded (a) the net income (or loss) of any Person (acquired in a pooling
of
interests transaction) accrued prior to the date it becomes a Subsidiary of
such
Person or is merged into or consolidated with such Person or any Subsidiary
of
such Person, (b) any net gain (or loss) resulting from an Asset Sale by such
Person or any of its Subsidiaries, (c) any extraordinary, unusual or
nonrecurring gains or losses (and related tax effects) in accordance with GAAP
and (d) any compensation-related expenses arising as a result of the
Transactions.
“Consolidated
Operating Cash Flow” shall mean, with respect to any period, Consolidated Net
Income for such period (i) increased (without duplication) by the sum of (a)
Consolidated Income Tax Expense for such period to the extent deducted in
determining Consolidated Net Income for such period; (b) Consolidated Interest
Expense for such period to the extent deducted in determining Consolidated
Net
Income for such period; (c) all dividends on Preferred Stock to the extent
not
taken into account in computing Consolidated Net Income for that period; and
(d)
depreciation, amortization and any other non-cash items for such period to
the
extent deducted in determining Consolidated Net Income for such period (other
than any non-cash item which requires the accrual of, or a reserve for, cash
charges for any future period) of the Company and its Subsidiaries, including
amortization of capitalized debt issuance costs for such period.
“Consolidated
Net Worth” means, with respect to any Person at any date, the sum of (i) the
consolidated stockholders’ equity of such Person less the amount of such
stockholders’ equity attributable to Disqualified Capital Stock of such Person
and its Subsidiaries, as determined on a consolidated basis in accordance with
GAAP consistently applied, and (ii) the amount of any Preferred Stock of such
Person not included in the stockholders’ equity of such Person in accordance
with GAAP, which Preferred Stock does not constitute Disqualified Capital
Stock.
“Covenant
Defeasance” has the meaning provided in Section 8.01.
“Custodian”
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
“Credit
Agreement” means the Credit Agreement dated as of May 1, 2006 among the Company,
the Subsidiaries named therein and the Credit Agreement Lender, as lender (as
amended, supplemented and restated or otherwise modified from time to
time).
“Credit
Agreement Collateral” means (a) a second priority security interest in the
Collateral, pledged to the lenders under the Credit Agreement as security for
the obligations of the Company and its Subsidiaries thereunder and (b) a first
priority security interest in all assets of the Company and its Subsidiaries
other than those set forth in the foregoing clause (a).
“Credit
Agreement Lender” means, collectively, Citicorp USA, Inc., as agent, and each
Person identified as a Lender in the Credit Agreement.
“Credit
Agreement Loan Documents” means the Credit Agreement, each promissory note
executed in connection therewith, each Credit Agreement Security Document
executed in connection therewith, each application for any letter(s) or credit
issued under or guaranteed pursuant to the Credit Agreement, and each other
certificate, document or instrument executed by the Company or any Subsidiary
in
connection with any of the foregoing, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
“Credit
Agreement Security Documents” means any security or pledge agreement or mortgage
or collateral assignment entered into by the Company or its Subsidiaries as
required under the Credit Agreement with respect to the Credit Agreement
Collateral.
“Cumulative
Operating Cash Flow” means, as at any date of determination, the positive
cumulative Consolidated Operating Cash Flow realized during the period
commencing on the Effective Date and ending on the last day of the most recent
fiscal quarter immediately preceding the date of determination for which
consolidated financial information of the Company is available or, if such
cumulative Consolidated Operating Cash Flow for such period is negative, the
negative amount by which cumulative Consolidated Operating Cash Flow is less
than zero.
“Currency
Agreement” means with respect to any Person any foreign exchange contract,
currency swap agreement, futures contract, options contract, synthetic cap
or
other similar agreement or arrangement to which such Person is a party or of
which it is a beneficiary for the purpose of hedging foreign currency
risk.
“Default”
means any event or condition the occurrence of which is, or would with the
passage of time or the giving of notice or both become, an Event of
Default.
“Definitive
Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 2.06.
“Depositary”
means, with respect to the Notes issuable or issued in whole or in part in
global form, The Depository Trust Company or another Person designated as
Depositary by the Company, which must be a clearing agency registered under
the
Exchange Act.
“Destruction”
shall have the meaning assigned to such term in the Mortgage.
“DIP
Credit Agreement” means that certain post-petition secured debtor-in-possession
loan issued by Congress Financial Corporation with maximum available principle
of $100,000,000.00, as approved by the Bankruptcy Court by final Order dated
October 29, 2003.
“Disqualified
Capital Stock” means any class of Capital Stock which, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the option of the holder thereof, in whole or in part, on or prior to the
Maturity Date.
“Duff
& Phelps” means Duff & Phelps Credit Rating Co. (or its
successors)
“Environmental
Law” has the meaning assigned to such term in the Mortgage.
“Equity
Offering” means an offering of Qualified Capital Stock of the Company (other
than to any Subsidiary of the Company).
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time.
“Event
of
Default” has the meaning provided in Section 6.01.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the SEC thereunder.
“Excluded
Asset” means any structure, equipment, facility, improvement, apparatus or other
property acquired or constructed by the Company after the Issue Date which
is
(i) located at the Mortgaged Property, (ii) not necessary for the proper and
efficient operation of the Mortgaged Property or for the compliance by the
Mortgaged Property with any applicable law, code or ordinance, including any
Environmental Law and (iii) not an integral part (or the replacement of an
integral part) of the Company’s operations as conducted at the Mortgaged
Property as of the Issue Date.
“Fair
Market Value” or “fair value” means, with respect to any asset, the price which
could be negotiated in an arm’s-length free market transaction, for cash,
between a willing seller and a willing buyer, neither of whom is under undue
pressure or compulsion to complete the transaction. Fair Market Value of any
asset of the Company and its Subsidiaries shall be determined by the Board
of
Directors of the Company acting in good faith and shall be evidenced by a Board
Resolution thereof delivered to the Trustee; provided, however, that with
respect to any Asset Sale which involves property or assets which could
reasonably be expected to have a value in excess of $100,000.00 the Fair Market
Value or fair value of any such asset or assets (i) shall be determined by
an
Independent Financial Advisor and (ii) any determination of Fair Market Value
or
fair value with respect to any parcel of Real Property constituting a part
of,
or proposed to be made a part of, the Collateral shall be made by an
Appraiser.
“Fitch”
means Fitch IBCA, Inc. (or its successors).
“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute
of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity
as
may be approved by a significant segment of the accounting profession of the
United States, which are in effect as of the Issue Date.
“Global
Note” means a Note, substantially in the form of Exhibit A, issued to the
Depositary and bearing the Global Note Legend.
“Global
Note Legend” means the legend set forth in Section 2.06(c)(i) which is required
to be placed on all Global Notes issued under this Indenture.
“Holder”
or “Noteholder” means the Person in whose name a Note is registered on the
Registrar’s books.
“Hedges”
means, with respect to any specified Person, the obligations of such Person
under (1) interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements; (2) any Currency Agreement or Commodity Price
Protection Agreement; and (3) other agreements or arrangements of a similar
character designed to protect such Person against fluctuations in interest
rates.
“Indebtedness”
means with respect to any Person, without duplication, (i) all obligations
of
such Person for borrowed money, (ii) all obligations of such Person evidenced
by
bonds, debentures, notes or other similar instruments, (iii) all Capitalized
Lease Obligations of such Person, (iv) all obligations of such Person issued
or
assumed as the deferred purchase price of property or services, all conditional
sale obligations and all obligations under any title retention agreement (but
excluding trade accounts payable, accrued expenses and deferred taxes arising
in
the ordinary course of business), (v) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker’s acceptance or
similar credit transaction entered into in the ordinary course of business,
(vi)
all obligations of any other Person of the type referred to in clauses (i)
through (v) which are secured by any Lien on any property or asset of such
first
Person and the amount of such obligation shall be the lesser of the value of
such property or asset or the amount of the obligation so secured, (vii) all
guarantees of Indebtedness by such Person, (viii) Disqualified Capital Stock
valued at the greater of its voluntary or involuntary maximum fixed repurchase
price plus accrued and unpaid dividends, (ix) all obligations under Interest
Rate Protection Obligations of such Person and (x) any amendment, supplement,
modification, deferral, renewal, extension or refunding of any liability of
the
types referred to in clauses (i) through (ix) above. For purposes hereof, the
“maximum fixed repurchase price” of any Disqualified Capital Stock which does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Disqualified Capital Stock as if such Disqualified Capital Stock
were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the Fair Market Value of such Disqualified Capital Stock, such
Fair
Market Value to be determined in good faith by the Board of Directors of the
Person issuing such Disqualified Capital Stock.
“Indenture”
means this Indenture, as amended or supplemented from time to time in accordance
with the terms hereof.
“Independent
Financial Advisor” means an accounting, appraisal or investment banking firm of
nationally recognized standing that is, in the reasonable and good faith
judgment of the Board of Directors of the Company, qualified to perform the
task
for which such firm has been engaged and disinterested and independent with
respect to the Company and its Affiliates.
“Indirect
Participant” means a Person who holds a beneficial interest in a Global Note
through a Participant.
“Intercreditor
Agreement” means the Intercreditor Agreement, dated as of May 1, 2006 among the
Collateral Agent, the Credit Agreement Lender and the Trustee for its benefit
and for the benefit of the Holders.
“Intercreditor
Agreements” means, collectively, the Intercreditor Agreement and the Collateral
Trust Intercreditor Agreement.
“Interest
Payment Date” means the stated maturity of an installment of interest on the
Notes.
“Interest
Rate Protection Obligations” means the obligations of any Person, pursuant to
any arrangement with any other Person, whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated
by
applying either a floating or a fixed rate of interest on a stated notional
amount in exchange for periodic payments made by such other Person calculated
by
applying a fixed or a floating rate of interest on the same notional amount
and
shall include interest rate swaps, caps, floors, collars and similar
agreements.
“Internal
Revenue Code” means the Internal Revenue Code of 1986, as amended to the date
hereof and from time to time hereafter.
“Investment”
means, with respect to any Person, any direct or indirect advance, loan,
guarantee or other extension of credit or capital contribution to (by means
of
any transfer of cash or other property to others or any payment for property
or
services for the account or use of others or otherwise), or any purchase or
acquisition by such Person of any Capital Stock, bonds, notes, debentures or
other securities or evidences of Indebtedness issued by, any other Person.
Investments shall exclude extensions of trade credit on commercially reasonable
terms in accordance with normal trade practices. For the purposes of Section
4.03, the amount of any Investment shall be the original cost of such Investment
plus the cost of all additional Investments by the Company or any of its
Subsidiaries, without any adjustments for increases or decreases in value,
or
write-ups, write-downs or write-offs with respect to such Investment, reduced
by
the payment of dividends or distributions in connection with such Investment
or
any other amounts received in respect of such Investment.
“Issue
Date” means the date of first issuance of the Notes under this
Indenture.
“Legal
Defeasance” has the meaning provided in Section 8.02.
“Legal
Holiday” has the meaning provided in Section 12.07.
“Lien”
means (x) any lien, mortgage, deed of trust, pledge, security interest, charge
or encumbrance of any kind including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell and any filing of or agreement to file a financing statement
as debtor under the Uniform Commercial Code or any similar statute and (y)
any
agreement to enter into any of the foregoing.
“Maturity
Date” means May 1, 2016.
“Moody’s”
means Moody’s Investor Service, Inc. (or its successors).
“Mortgage”
means those open-end mortgages, assignments of rents, security agreements and
fixture filings dated as of May 1, 2006, between the Company and the Collateral
Agent, as the same may be amended, amended and restated, supplemented or
otherwise modified from time to time.
“Mortgaged
Property” has the meaning assigned to such term in the Mortgage.
“Net
Award” shall have the meaning assigned to such term in the Mortgage and shall
include any amounts received in respect of personal property pursuant to the
Security Agreement or otherwise.
“Net
Cash
Proceeds” means, with respect to any Asset Sale, the proceeds thereof in the
form of cash or Cash Equivalents, including payments in respect of deferred
payment obligations when received in the form of cash or Cash Equivalents
(except to the extent that such obligations are financed or sold with recourse
to the Company or any Subsidiary of the Company) net of (i) brokerage
commissions and other reasonable fees and expenses (including fees and expenses
of legal counsel and investment bankers) related to such Asset Sale, (ii)
provisions for all taxes payable as a direct result of such Asset Sale and
(iii)
appropriate amounts to be provided by the Company or any Subsidiary of the
Company, as the case may be, as a reserve required in accordance with GAAP
consistently applied against any liabilities associated with such Asset Sale
and
retained by the Company or any Subsidiary of the Company, as the case may be,
after such Asset Sale, including pension and other postemployment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an Officers’ Certificate delivered to the Trustee.
“Net
Proceeds” shall have the meaning assigned to such term in the Mortgage and shall
include any amounts received in respect of personal property pursuant to the
Mortgage or otherwise.
“Non-Collateral
Proceeds” has the meaning provided in Section 4.16.
“Notes”
has the meaning provided in the preamble.
“Obligations”
means any principal, interest, penalties, fees and other liabilities payable
under the documentation governing any Indebtedness.
“Officer”
means, with respect to any Person, the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Controller, the Treasurer, or the Secretary of such
Person.
“Officers’
Certificate” means, with respect to any Person, a certificate signed by two
Officers or by an Officer and either an Assistant Treasurer or an Assistant
Secretary of such Person and otherwise complying with the requirements of
Sections 12.04 and 12.05.
“Operating
Lease” means, as applied to any Person, any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal
or
mixed) that is not a Capital Lease other than any such lease under which that
Person is the lessor.
“Opinion
of Counsel” means a written opinion from legal counsel who is acceptable to the
Trustee complying with the requirements of Sections 12.04 and 12.05. Unless
otherwise required by the TIA, the legal counsel may be an employee of or
counsel to the Company.
“Participant”
means, with respect to the Depositary, Clearstream or Cedel, a Person who has
an
account with the Depositary, Clearstream or Cedel, respectively (and, with
respect to The Depository Trust Company, shall include Clearstream and
Cedel).
“Paying
Agent” has the meaning provided in Section 2.03.
“Permitted
Indebtedness” means only indebtedness incurred by the Company, (i) under the
Notes, (ii) under the Credit Agreement, (iii) as purchase money indebtedness,
(iv) to refinance the Credit Agreement or purchase money indebtedness, including
without limitation in a greater amount, so long as such Indebtedness is secured
by the same type of collateral, has an Average Weighted Life to Maturity equal
to or greater than the Indebtedness refinanced, and does not require greater
cumulative payments of principal at any time earlier than the original scheduled
payments on the Indebtedness refinanced, (v) Hedges, (vi) contingent liabilities
arising out of endorsements of checks and other negotiable instruments for
deposit or collection or overdraft protection in the ordinary course of
business, (vii) Indebtedness of the Company with respect to workers’
compensation claims, self-insurance obligations, indemnities, performance bonds,
bankers’ acceptances, letters of credit and surety, appeal or similar bonds
provided by the Company in the ordinary course of business, (viii) Indebtedness
under the Collateral Trust, provided that the aggregate outstanding principal
amount of all such Indebtedness shall not exceed $75,000,000 at any time, and
(ix) unsecured indebtedness if (A) the Notes are at such time rated by Moody’s,
Standard & Poor’s, Fitch or Duff & Phelps and (B) each rating agency
that maintains a rating for the Notes provides a Rating Confirmation.
“Permitted
Investment” means (i) cash and Cash Equivalents, (ii) any Investment by the
Company or any of its Subsidiaries in the Company or any Wholly-owned Subsidiary
of the Company, (iii) any Related Business Investment in assets other than
the
type described in clause (iv) below, (iv) Related Business Investments by the
Company or any of its Subsidiaries in joint ventures, partnerships or Persons
that are not Wholly-owned Subsidiaries, (v) Investments by the Company or any
Subsidiary of the Company in another Person, if as a result of such Investment
(a) such other Person becomes a Wholly-owned Subsidiary of the Company or (b)
such other Person is merged or consolidated with or into, or transfers or
conveys all or substantially all of its assets to, the Company or a Wholly-owned
Subsidiary of the Company, (vi) Investments received in connection with the
bankruptcy or reorganization of suppliers and customers and in settlement of
delinquent obligations of, and other disputes with, customers and suppliers,
in
each case arising in the ordinary course of business, (vii) the non-cash
proceeds of any Asset Sale and (viii) loans and advances to employees of the
Company and its Subsidiaries made in the ordinary course of
business.
“Permitted
Liens” means (i) pledges or deposits by such Person under worker’s compensation
laws, unemployment insurance laws or similar legislation, or good faith deposits
in connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public statutory obligations of such Person or deposits to secure surety or
appeal bonds to which such Person is a party, or deposits as security for
contested taxes or import duties or for the payment of rent, (ii) Liens imposed
by law, such as landlords’, carriers’, warehousemen’s and mechanics’ Liens or
bankers’ Liens incurred in the ordinary course of business for sums which are
not yet due or are being contested in good faith and for which adequate
provision has been made, (iii) Liens for taxes not yet subject to penalties
for
non-payment or which are being contested in good faith and by appropriate
proceedings, if adequate reserve, as may be required by GAAP, shall have been
made therefor, (iv) Liens in favor of issuers of surety bonds or appeal bonds
issued pursuant to the request of and for the account of such Person in the
ordinary course of its business, (v) Liens to support trade letters of credit
issued in the ordinary course of business, (vi) survey exceptions,
encumbrances, easements or reservations of, or rights of others for, rights
of
way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions on the use of real property, (vii)
Liens securing Indebtedness permitted under clause (iii) of the definition
of
Permitted Indebtedness; provided that the Fair Market Value of the asset at
the
time of the incurrence of the Indebtedness subject to the Lien shall not exceed
the principal amount of the Indebtedness secured, (viii) Liens with respect
to
Acquired Indebtedness permitted to be incurred in accordance with Section 4.12;
provided that such Liens secured such Acquired Indebtedness at the time of
the
incurrence of such Acquired Indebtedness by the Company and were not incurred
in
connection with, or in anticipation of, the incurrence of such Acquired
Indebtedness by the Company; provided, further, that such Liens do not extend
to
or cover any property or assets of the Company other than the property or assets
that secured the Acquired Indebtedness prior to the time such Indebtedness
became Acquired Indebtedness of the Company and are no more favorable to the
lienholders than those securing the Acquired Indebtedness prior to the
incurrence of such Acquired Indebtedness by the Company, (ix) Liens arising
from
judgments, decrees or attachments in circumstances not constituting an Event
of
Default, (x) Liens in favor of the trustee of the Collateral Trust existing
on
the Issue Date or thereafter arising pursuant to agreements in effect on the
Issue Date, (xi) Liens on assets or property (including any real property upon
which such assets or property are or will be located) securing Indebtedness
incurred to purchase or construct such assets or property, which Indebtedness
is
permitted to be incurred under Section 4.12, (xii) Liens securing the Credit
Agreement Collateral and (xiii) Liens permitted by the Collateral
Documents.
“Person”
means any individual, corporation, partnership, limited liability company,
joint
venture, association, joint-stock company, trust, unincorporated organization
or
government or other agency or political subdivision thereof.
“Plan
of
Liquidation” means, with respect to any Person, a plan that provides for,
contemplates or the effectuation of which is preceded or accompanied by (whether
or not substantially contemporaneously, in phases or otherwise) (i) the sale,
lease, conveyance or other disposition of all or substantially all of the assets
of such Person otherwise than as an entirety or substantially as an entirety
and
(ii) the distribution of all or substantially all of the proceeds of such sale,
lease, conveyance or other disposition and all or substantially all of the
remaining assets of such Person to holders of Capital Stock of such
Person.
“Preferred
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) of such Person’s
preferred or preference stock, whether outstanding on the date hereof or issued
after the date of this Indenture, and including all classes and series of
preferred or preference stock of such Person.
“Pro
forma” means, with respect to any calculation made or required to be made
pursuant to the terms of this Indenture, a calculation in accordance with
Article 11 of Regulation S-X under the Securities Act.
“Qualified
Capital Stock” means, with respect to any Person, any Capital Stock of such
Person that is not Disqualified Capital Stock or convertible into or
exchangeable or exercisable for Disqualified Capital Stock.
“Qualified
Institutional Buyer” or “QIB” shall have the meaning specified in Rule 144A
under the Securities Act.
“Rating
Confirmation” means the written confirmation by each of Moody’s, Standard &
Poor’s, Fitch and Duff & Phelps, which at the time such confirmation is
requested shall provide a rating with respect to the general corporate credit
of
the Company, that a proposed transaction by the Company (including the proposed
incurrence of Indebtedness pursuant to clause (ix) of the definition of
“Permitted Indebtedness” will not result in a downgrade, qualification or
withdrawal of such rating agency’s then current rating.
“Real
Property” means any interest in any real property or any portion thereof whether
owned in fee or leased or otherwise owned.
“Real
Property Release Notice” has the meaning provided in Section 10.03.
“Real
Property Valuation Date” has the meaning provided in Section 10.03.
“Record
Date” means the Record Dates specified in the Notes; provided that if any such
date is a Legal Holiday, the Record Date shall be the first day immediately
preceding such specified day that is not a Legal Holiday.
“Redemption
Date,” when used with respect to any Note to be redeemed, means the date fixed
for such redemption pursuant to this Indenture and the Notes.
“Redemption
Price,” when used with respect to any Note to be redeemed, means the price fixed
for such redemption pursuant to this Indenture and the Notes, including accrued
an unpaid interest and the Applicable Premium.
“Registrar”
has the meaning provided in Section 2.03.
“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the Issue
Date by and among the Holders and the Company.
“Related
Business Investment” means any Investment, Capital Expenditure or other
expenditure by the Company or any Subsidiary of the Company which is related
to
the business of the Company and its Subsidiaries as it is conducted on the
Issue
Date.
“Released
Assets” has the meaning provided in Section 10.03.
“Released
Real Property” means any portion of the Real Property which constitutes
Mortgaged Property upon which an Excluded Asset is or is intended to be situated
so long as (i) such Released Real Property is not (x) necessary for the proper
and efficient operation of the Mortgaged Property or for the compliance by
the
Mortgaged Property with any applicable law, code or ordinance, including any
Environmental Law, or (y) an integral part of the Company’s operations as
conducted at the Mortgaged Property on the Issue Date and (ii) the release
of
such Released Real Property will not interfere with or impair the Trustee’s
ability to realize the value of the remaining Collateral.
“Released
Trust Moneys” has the meaning provided in Section 11.04.
“Restricted
Payment” has the meaning provided in Section 4.03.
“Sale/leaseback”
means any lease, whether an Operating Lease or a Capital Lease, whereby the
Company or any of its Subsidiaries, directly or indirectly, becomes or remains
liable as lessee or as guarantor or other surety, of any property (whether
real
or personal or mixed) whether now owned or hereafter acquired, (i) that the
Company or its Subsidiaries, as the case may be, has sold or transferred or
is
to sell or transfer to any other Person (other than the Company), or (ii) that
the Company or its Subsidiaries, as the case may be, intends to use for
substantially the same purpose as any other property that has been or is to
be
sold or transferred by the Company or any such Subsidiary to any Person (other
than the Company) in connection with such lease.
“SEC”
means the Securities and Exchange Commission.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations
of the SEC promulgated thereunder.
“Significant
Subsidiary” means any Subsidiary of the Company that satisfies the criteria for
a “significant subsidiary” set forth in Rule 1.02(v) of Regulation S-X under the
Securities Act.
“Standard
& Poor’s” means Standard & Poor’s Rating Services (or its
successors)
“Subsidiary”
of any Person means (i) any corporation of which the outstanding capital stock
having at least a majority of the votes entitled to be cast in the election of
directors under ordinary circumstances shall at the time be owned, directly
or
indirectly, by such Person or (ii) any other Person of which at least a majority
of the voting interest under ordinary circumstances is at the time owned,
directly or indirectly, by such Person. For purposes of this definition, any
directors’ qualifying shares or investments by foreign nationals mandated by
applicable law shall be disregarded in determining the ownership of a
Subsidiary.
“Survey”
means a survey of any parcel of real property (and all improvements thereon):
(i) prepared by a surveyor or engineer licensed to perform surveys in the state
where such property is located, (ii) dated (or redated) not earlier than six
months prior to the date of delivery thereof (unless there shall have occurred
within six months prior to such date of delivery any exterior construction
on
the site of such property, in which event such survey shall be dated (or
redated) after the completion of such construction or if such construction
shall
not have been completed as of such date of delivery, not earlier than 20 days
prior to such date of delivery), (iii) certified by the surveyor (in a manner
reasonably acceptable to the title company providing title insurance) and (iv)
complying in all respects with the minimum detail requirements of the American
Land Title Association, or local equivalent, as such requirements are in effect
on the date of preparation of such survey, or that is otherwise reasonably
acceptable to the Trustee (giving consideration to the applicable transaction).
“Taking”
shall have the meaning assigned to such term in the Mortgage.
“TIA”
means the Trust Indenture Act of 1939 (15 U.S.C. § 77aaa-77bbbb), as amended, as
in effect on the date of the execution of this Indenture until such time as
this
Indenture is qualified under the TIA, and thereafter as in effect on the date
on
which this Indenture is qualified under the TIA.
“Treasury
Rate” means, as of the applicable Redemption Date, the yield to maturity as of
such Redemption Date of United States Treasury securities with a constant
maturity (as compiled and published in the most recent Federal Reserve
Statistical Release H.15 (519) that has become publicly available at least
two
Business Days prior to such Redemption Date (or, if such Statistical Release
is
no longer published, any publicly available source of similar market data))
most
nearly equal to the period from such Redemption Date to the Maturity Date;
provided, however, that if the period from such Redemption Date t the Maturity
Date 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.
“Trust
Moneys” has the meaning provided in Section 11.01.
“Trustee”
means the party named as such in this Indenture until a successor replaces
it in
accordance with the provisions of this Indenture and thereafter means such
successor.
“Trust
Officer” means any authorized officer of the Trustee assigned by the Trustee to
administer this Indenture, or in the case of a successor trustee, an authorized
officer assigned to the department, division or group performing the corporation
trust work of such successor and assigned to administer this
Indenture.
“U.S.
Government Obligations” has the meaning provided in Section 8.01.
“U.S.
Legal Tender” means such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts.
“Valuation
Date” has the meaning provided in Section 10.03.
“Wholly-owned
Subsidiary” means, with respect to any Person, any Subsidiary of such Person all
of the shares of Capital Stock (other than directors’ qualifying shares) of
which are owned directly by such Person or another Wholly-owned Subsidiary
of
such Person.
SECTION
1.02. Incorporation
by Reference of TIA.
Whenever
this Indenture refers to a provision of the TIA, such 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:
“Commission”
means the SEC.
“Indenture
to be qualified” means this Indenture.
“Indenture
trustee” or “institutional trustee” means the Trustee.
“obligor”
on the indenture securities means the Company or any other obligor on the
Notes.
All
other
TIA terms used in this Indenture that are defined by the TIA, defined by TIA
reference to another statute or defined by SEC rule and not otherwise defined
herein have the meanings assigned to them therein.
SECTION
1.03. Rules
of
Construction.
Unless
the context otherwise requires:
(a) a
term
has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(c) “or”
is
not exclusive;
(d) words
in
the singular include the plural, and words in the plural include the
singular;
(e) provisions
apply to successive events and transactions;
(f) “herein,”
“hereof” and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision;
(g) the
word
“including” means without limitation and the terms “include” or “includes” shall
have correlative meanings; and
(h) references
to Article, Section, Schedule or Exhibit mean an Article or Section or Schedule
of Exhibit of this Indenture, unless otherwise specified.
ARTICLE
TWO
THE
NOTES
SECTION
2.01. Form
and
Dating.
The
Notes
and the Trustee’s certificate of authentication with respect thereto shall be
substantially in the form of Exhibit A. The Notes may have notations, legends
or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Notes and any notation, legend or endorsement on them
and furnish any such notation, legend or endorsement to the Company in writing.
Each Note shall be dated the date of its authentication, shall bear interest
from the applicable date and shall be payable on the Interest Payment Dates
and
the Maturity Date.
The
terms
and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture and, to the extent applicable, the Company and
the Trustee, by their execution and delivery of this Indenture, expressly agree
to such terms and provisions and to be bound thereby.
The
Notes
shall be originally issued as Global Notes. Thereafter, beneficial interests
in
the Global Note may be exchanged for Definitive Notes. Notes issued in global
form shall be substantially in the form of Exhibit A and shall bear the Global
Note Legend thereon. Notes issued in definitive form shall be substantially
in
the form of Exhibit A and shall bear the legend set forth in Section 2.06(d)(ii)
thereon. Each Note shall represent such of the outstanding Notes as shall be
specified therein and shall represent the aggregate principal amount of
outstanding Notes from time to time as reflected in the records of the Trustee
and that the aggregate principal amount of outstanding Notes represented thereby
may from time to time be reduced or increased, as appropriate, to reflect
exchanges, transfers and redemptions. Any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by
the
Trustee in the records of the Trustee.
Clearstream
and Cedel Procedures Applicable. The provisions of the “Operating Procedures of
the Clearstream System” and “Terms and Conditions Governing Use of Clearstream”
and the “General Terms and Conditions of Cedel Bank” and “Customer Handbook” of
Cedel Bank shall be applicable to transfers of beneficial interests in Global
Notes that are held by Participants through Clearstream or Cedel
Bank.
SECTION
2.02. Execution
and Authentication.
Two
Officers, or an Officer and an Assistant Secretary, shall sign, or one Officer
shall sign and one Officer or an Assistant Secretary (each of whom shall, in
each case, have been duly authorized by all requisite corporate actions) shall
attest to, the Notes for the Company by manual or facsimile signature, except
to
the extent that there is only one Officer of the Company.
If
an
Officer whose signature is on a Note was an Officer at the time of such
execution but no longer holds that office at the time the Trustee authenticates
the Note, the Note shall nevertheless be valid.
A
Note
shall not be valid until an authorized signatory of the Trustee manually signs
the certificate of authentication on the Note. The signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The
Trustee shall authenticate Notes for original issue in the aggregate principal
amount of up to $100,000,000 upon receipt of a written order of the Company
in
the form of an Officers’ Certificate. The Officers’ Certificate shall specify
the amount of Notes to be authenticated and the date on which the Notes are
to
be authenticated. The aggregate principal amount of Notes outstanding at any
time may not exceed $100,000,000, except as provided in Section 2.07. Upon
the
written order of the Company in the form of an Officers’ Certificate, the
Trustee shall authenticate Notes in substitution of Notes originally issued
to
reflect any name change of the Company.
The
principal and interest on Global Notes shall be payable to the Depositary or
its
nominee, as the case may be, as the sole registered owner and the sole holder
of
the Global Notes represented thereby. The principal and interest on Notes in
certificated form shall be payable at the office of the Paying
Agent.
The
Trustee may appoint an authenticating agent reasonably acceptable to the Company
to authenticate Notes. The Company shall pay the reasonable fees and expenses
of
any authenticating agent so appointed. Unless otherwise provided in the
appointment, 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 and Affiliates of the Company.
The
Notes
shall be issuable only in registered form without coupons in denominations
of $1
and any integral multiple thereof.
If
the
Notes are to be issued in the form of one or more Global Notes, then the Company
shall execute and the Trustee shall authenticate and deliver one or more Global
Notes that shall represent and shall be in minimum denominations of
$1.
SECTION
2.03. Registrar
and Paying Agent.
The
Company shall maintain an office or agency in the Borough of Manhattan, The
City
of New York, where (a) Notes may be presented or surrendered for registration
of
transfer or for exchange (“Registrar”), (b) Notes may be presented or
surrendered for payment (“Paying Agent”) and (c) notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. 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. Neither the Company nor any Affiliate
of the Company shall act as Paying Agent. The Registrar shall keep a register
of
the Notes and of their transfer and exchange. The Company, upon notice to the
Trustee, may have one or more additional paying agents reasonably
acceptable
to
the
Trustee. The term “Paying Agent” includes any additional paying agent. The
Company initially appoints the Trustee as Registrar and Paying Agent until
such
time as the Trustee has resigned or a successor has been appointed. The Paying
Agent or Registrar (if other than the Trustee) may resign on 30 days’ written
notice to the Company and the Trustee.
The
Company shall enter into an appropriate agency agreement with any Agent not
a
party to this Indenture, which agreement shall implement the provisions of
this
Indenture that relate to such Agent. The Company shall notify the Trustee,
in
advance, of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as
such.
SECTION
2.04. Paying
Agent To Hold Assets in Trust.
The
Company shall require each Paying Agent other than the Trustee to agree in
writing that each Paying Agent shall hold in trust for the benefit of the
Holders or the Trustee all assets held by the Paying Agent for the payment
of
principal of, or interest on, the Notes (whether such assets have been
distributed to it by the Company or any other obligor on the Notes), and shall
notify the Trustee of any Default by the Company (or any other obligor on the
Notes) in making any such payment. The Company at any time may require a Paying
Agent to distribute all assets held by it to the Trustee and account for any
assets disbursed and the Trustee may at any time during the continuance of
any
payment Default, upon written request to a Paying Agent, require such Paying
Agent to distribute all assets held by it to the Trustee and to account for
any
assets distributed. Upon distribution to the Trustee of all assets that shall
have been delivered by the Company to the Paying Agent, the Paying Agent shall
have no further liability for such assets.
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 the Holders.
If
the Trustee is not the Registrar, the Company shall furnish to the Trustee
before each Record Date and at such other times as the Trustee may request
in
writing a list as of such date and in such form as the Trustee may reasonably
require of the names and addresses of the Holders, which list may be
conclusively relied upon by the Trustee.
SECTION
2.06. Transfer
and Exchange.
(a) Transfer
and Exchange of Global Notes. A Global Note may not be transferred as a whole
except by the Depositary to a nominee of the Depositary, by a nominee of the
Depositary to the Depositary or to another nominee of the Depositary, the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary. All Global Notes will be exchanged by the Company for
Definitive Notes if the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary
or
that it is no longer a clearing agency registered under the Exchange Act and,
in
either case, a successor Depositary is not appointed by the Company within
120
days after the date of such notice from the Depositary. Upon the occurrence
of
the preceding event in the preceding sentence, Definitive Notes shall be issued
in such names as the Depositary shall instruct the
Trustee.
Global Notes also may be exchanged or replaced, in whole or in part, as provided
in Sections 2.07 and 2.10. In addition, upon the request of a Holder of a
beneficial interest in a Global Note, made to the Trustee or the Company, such
Holder’s beneficial interest in a Global Note may be exchanged for a Definitive
Note. Every Note authenticated and delivered in exchange for, or in lieu of,
a
Global Note or any portion thereof, pursuant to this Section 2.06 or Section
2.07 or 2.10, shall be authenticated and delivered in the form of, and shall
be,
a Global Note. A Global Note may not be exchanged for another Note other than
as
provided in this Section 2.06(a), however, beneficial interests in a Global
Note
may be transferred and exchanged as provided in Section 2.06(b).
(b) Transfer
and Exchange of Definitive Notes and Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall
be
effected through the Depositary, in accordance with the provisions of this
Indenture and the Applicable Procedures.
(i) Beneficial
Interests in Global Notes to Definitive Notes. If any Holder of a beneficial
interest in a Global Note proposes to exchange such beneficial interest for
a
Definitive Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Definitive Note, then, upon satisfaction
of
the conditions set forth in Section 2.06(b)(ii), the Trustee shall cause the
aggregate principal amount of the Global Note to be reduced accordingly pursuant
to Section 2.06(d), and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive Note issued
in exchange for a beneficial interest pursuant to this Section 2.06(b)(i) shall
be registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered.
(ii) Transfer
and Exchange of Definitive Notes for Definitive Notes. Upon request by a Holder
of Definitive Notes and such Holder’s compliance with the provisions of this
Section 2.06(b)(ii), the Registrar shall register the transfer or exchange
of
Definitive Notes. Prior to such registration of transfer or exchange, the
requesting Holder shall present or surrender to the Registrar the Definitive
Notes 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. In addition, the requesting Holder shall provide
any
additional certifications, documents and information, as applicable, required
pursuant to the provisions of this Section 2.06(b).
(c) Transfers
to QIBs. The following provisions shall apply with respect to the registration
of any proposed transfer of a Note to a QIB.
(i) The
Registrar shall register the transfer if such transfer is being made by a
proposed transferor who has advised the Company and the Registrar in writing
that the sale has been made in compliance with the provisions of Rule 144A
to a
transferee who has advised the Company and the Registrar in writing that: (A)
it
is
purchasing
the Note for its own account or an account with respect to which it exercises
sole investment discretion; (B) it and any such account is a QIB within the
meaning of Rule 144A; (C) it is aware that the sale to it is being made in
reliance on Rule 144A; (D) it acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information; and (E) it is aware that the
transferor is relying upon its foregoing representations in order to claim
the
exemption from registration provided by Rule 144A; and
(ii) If
the
proposed transferee is an Agent Member, and the Notes to be transferred consist
of Definitive Notes which after transfer are to be evidenced by an interest
in
the Global Note, upon receipt by the Registrar of instructions given in
accordance with the Depositary's and the Registrar's procedures, the Registrar
shall reflect on its books and records the date and an increase in the principal
amount of the Global Note in an amount equal to the principal amount of the
Definitive Notes to be transferred, and the Trustee shall cancel the Definitive
Notes so transferred.
(d) Legends.
(i) The following legend shall appear on the face of all Global Notes issued
under this Indenture unless specifically stated otherwise in the applicable
provisions of this Indenture.
THIS
NOTE
IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND
IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (“DTC”) OR A NOMINEE
OF DTC. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON
OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE
INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE
AS A
WHOLE BY DTC TO A NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS AND WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY
11
U.S.C. 1145, UNDER AN ORDER CONFIRMING A CONSENSUAL PLAN OF REORGANIZATION
ENTERED MARCH 30, 2006, AS AMENDED BY ORDER DATED APRIL 25, 2006. THE HOLDER
OF
THIS NOTE IS REFERRED TO 11 U.S.C. 1145 FOR GUIDANCE AS TO THE SALE OF THIS
NOTE.
(ii) The
following legend shall appear on the face of all Definitive Notes (and all
Notes
issued in exchange therefor or substitution thereof) shall bear the legend
in
substantially the following form.
THIS
NOTE
HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS AND WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY
11
U.S.C. 1145, UNDER AN ORDER CONFIRMING A CONSENSUAL PLAN OF REORGANIZATION
ENTERED MARCH 30, 2006, AS AMENDED BY ORDER DATED APRIL 25, 2006. THE HOLDER
OF
THIS NOTE IS REFERRED TO 11 U.S.C. 1145 FOR GUIDANCE AS TO THE SALE OF THIS
NOTE.
(e) Cancellation
and/or Adjustment of Global Notes. At such time as all beneficial interests
in a
Global Note have been exchanged for Definitive Notes or a Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11. At any time prior to such cancellation, if any beneficial
interest in a Global Note is exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note or for Definitive Notes, the principal amount of Notes represented by
such
Global Note shall be reduced accordingly and such reduction shall be noted
in
the records of the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction.
(f) General
Provisions Relating to Transfers and Exchanges
(i) To
permit
registrations of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Global Notes and Definitive Notes upon the Company’s
order or at the Registrar’s request.
(ii) No
service charge shall be made to a Holder of a beneficial interest in a Global
Note or to a Holder of a Definitive Note 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 2.02, 2.10, 3.01, 3.07, 4.15, 4.16
and
9.05).
(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
Global Notes and Definitive Notes issued upon any registration of transfer
or
exchange of Global Notes or Definitive Notes shall be the valid obligations
of
the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Global Notes or Definitive 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 any Notes during a period beginning at the opening of business 15
days
before the day of any selection of Notes for redemption under Section 3.03
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.
(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 for all other purposes,
and none of the Trustee, any Agent or the Company shall be affected by notice
to
the contrary.
(vii) The
Trustee shall authenticate Global Notes and Definitive Notes in accordance
with
the provisions of Section 2.02.
SECTION
2.07. Replacement
Notes.
If
a
mutilated Note is surrendered to the Trustee or if the Holder of a Note claims
that the Note has been lost, destroyed or wrongfully taken, the Company shall
issue and the Trustee shall authenticate a replacement Note if the Trustee’s
requirements are met. If required by the Trustee or the Company, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment
of
both the Company and the Trustee, to protect the Company, the Trustee or any
Agent from any loss which any of them may suffer if a Note is replaced. The
Company may charge such Holder for its reasonable, out-of-pocket expenses in
replacing a Note, including reasonable fees and expenses of counsel. Every
replacement Note shall constitute an additional obligation of the
Company.
SECTION
2.08. Outstanding
Notes.
Notes
outstanding at any time are all the Notes that have been authenticated by the
Trustee except those cancelled by it, those delivered to it for cancellation
and
those described in this Section as not outstanding. A Note does not cease to
be
outstanding because the Company or any of its Affiliates holds the
Note.
If
a Note
is replaced pursuant to Section 2.07 (other than a mutilated Note surrendered
for replacement), it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Note is held by a
bona
fide purchaser. A mutilated Note ceases to be outstanding upon surrender of
such
Note and replacement thereof pursuant to Section 2.07.
If
on a
Redemption Date or the Maturity Date the Paying Agent holds U.S. Legal Tender
or
U.S. Government Obligations sufficient to pay all of the principal and interest
due on the Notes payable on that date, then on and after that date such Notes
cease to be outstanding and interest on them ceases to accrue; provided,
however, that to the extent the Trustee is enjoined from making payments to
the
Holders, interest will continue to accrue until such time as the Trustee is
not
so enjoined.
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
an
Affiliate of the Company shall be disregarded, 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 Trust Officer of the Trustee
actually knows are so owned shall be 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 receipt of a written order of the
Company in the form of an Officers’ Certificate. The Officers’ Certificate shall
specify the amount of temporary Notes to be authenticated and the date on which
the temporary Notes are to be authenticated. Temporary Notes shall be
substantially in the form of Definitive Notes but may have variations that
the
Company considers appropriate for temporary Notes. Without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate upon receipt of
a
written order of the Company pursuant to Section 2.02 Definitive Notes in
exchange for temporary Notes.
SECTION
2.11. Cancellation.
The
Company at any time may deliver Notes to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee, or at the
direction of the Trustee, the Registrar or the Paying Agent, and no one else,
shall cancel and, at the written direction of the Company, shall dispose of
all
Notes surrendered for transfer, exchange, payment or cancellation. Subject
to
Section 2.07, the Company may not issue new Notes to replace Notes that it
has
paid or delivered to the Trustee for cancellation. If the Company shall acquire
any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Notes unless and until
the
same are surrendered to the Trustee for cancellation pursuant to this Section
2.11.
SECTION
2.12. Defaulted
Interest.
If
the
Company defaults in a payment of interest on the Securities, it shall, unless
the Trustee fixes another record date pursuant to Section 6.10, pay the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest to the Persons who are Holders on
a
subsequent special record date, which date shall be the fifteenth day next
preceding the date
fixed
by
the Company for the payment of defaulted interest or the next succeeding
Business Day if such date is not a Business Day. At least 15 days before the
subsequent special record date, the Company shall mail to each Holder, with
a
copy to the Trustee, a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest, and interest payable
on
such defaulted interest, if any, to be paid.
SECTION
2.13. CUSIP
Number.
The
Company in issuing the Notes shall use a CUSIP number or numbers (if generally
in use), and if so, the Trustee shall use the CUSIP number or numbers in notices
of redemption or exchange as a convenience to Holders; provided that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number or numbers printed in the notice or on the
Securities, and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company will promptly notify the Trustee
of any change in the CUSIP number or numbers.
SECTION
2.14. Designation.
The
Indebtedness evidenced by the Notes is hereby irrevocably designated as “senior
indebtedness” or such other term denoting seniority (i) for all purposes of the
provisions defining subordination contained in agreements that provide that
the
Indebtedness of the Company issued pursuant to such agreements is subordinate
to
Indebtedness designated as senior indebtedness and (ii) for the purposes of
any
future Indebtedness of the Company which the Company expressly makes subordinate
to any senior indebtedness or such other term denoting seniority. In connection
with the issuance of any such future subordinated Indebtedness, the Company
shall take all necessary steps to effectuate the foregoing.
SECTION
2.15. Exemption
From Federal and State Law Securities Registration Requirements.
The
Notes
are issued pursuant to Section 1145 of the Bankruptcy Code. The Notes may be
sold by a Holder who is not an “underwriter” as that term is used in Section
1145(b) of the Bankruptcy Code publicly (whether through a broker or not) or
in
privately negotiated transactions, in each case, without registration under
federal or state law.
ARTICLE THREE
REDEMPTION
SECTION
3.01. Optional
Redemption.
(a) The
Notes
may be redeemed, in whole or in part, at any time prior to the Maturity Date,
at
the option of the Company at a redemption price equal to 100% of the principal
amount of the Notes redeemed plus the Applicable Premium as of, and accrued
and
unpaid interest to, the applicable Redemption Date.
SECTION
3.02. Notices
to Trustee.
If
the
Company elects to redeem Notes pursuant to this Indenture and the Notes, it
shall notify the Trustee and the Paying Agent in writing of the Redemption
Date
and the principal amount of the Notes to be redeemed and whether it wants the
Trustee to give notice of redemption to the Holders (at the Company’s expense)
at least 45 days (unless a shorter notice shall be satisfactory to the Trustee)
but not more than 60 days before the Redemption Date. Any such notice may be
cancelled at any time prior to notice of such redemption being mailed to any
Holder and shall thereby be void and of no effect.
SECTION
3.03. Selection
of Notes To Be Redeemed.
If
less
than all of the Notes are to be redeemed at any time, the Trustee shall select
the Notes to be redeemed in compliance with the requirements of the principal
national securities exchange, if any, on which the Notes being redeemed are
listed or, if the Notes are not listed on a national securities exchange, on
a
pro rata basis, by lot or by such other method as the Trustee shall deem fair
and appropriate.
The
Trustee shall make the selection from the Notes outstanding and not previously
called for redemption and shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes in denominations
of $1 or less may be redeemed only in whole. The Trustee may select for
redemption portions (equal to $1 or any integral multiple thereof) of the
principal of Notes that have denominations larger than $1. If a redemption
is to
be made with the proceeds of an Equity Offering pursuant to Section 3.01,
selection of the Notes for redemption shall be made by the Trustee only on
a pro
rata basis unless such method is otherwise prohibited. Provisions of this
Indenture that apply to Notes called for redemption also apply to portions
of
Notes called for redemption.
SECTION
3.04. Notice
of
Redemption.
Except
as
otherwise provided in Section 3.01, at least 30 days but not more than 60 days
before a Redemption Date the Company shall mail a notice of redemption by first
class mail to each Holder whose Notes are to be redeemed, with a copy to the
Trustee. At the Company’s request, the Trustee shall give the notice of
redemption in the Company’s name and at the Company’s expense. Each notice for
redemption shall identify the Notes to be redeemed and shall state:
(a) the
Redemption Date;
(b) the
Redemption Price;
(c) the
name
and address of the Paying Agent;
(d) that
Notes called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;
(e) that,
unless the Company defaults in making the redemption payment, interest on Notes
called for redemption ceases to accrue on and after the Redemption Date, and
the
only remaining right of the Holders of such Notes is to receive payment of
the
Redemption Price upon surrender to the Paying Agent of the Notes redeemed;
(f) 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, and upon surrender of such
Note, a new Note or Notes in the aggregate principal amount equal to the
unredeemed portion thereof will be issued;
(g) if
fewer
than all the Notes are to be redeemed, the identification of the particular
Notes (or portion thereof) to be redeemed, as well as the aggregate principal
amount of Notes to be redeemed and the aggregate principal amount of Notes
to be
outstanding after such partial redemption; and
(h) the
CUSIP
number, if any, relating to such Notes.
SECTION
3.05. Effect
of
Notice of Redemption.
Once
notice of redemption is mailed in accordance with Section 3.04, Notes called
for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Trustee or Paying Agent, such Notes called for
redemption shall be paid at the Redemption Price plus accrued interest to the
Redemption Date, but interest installments whose maturity is on or prior to
such
Redemption Date will be payable on the relevant Interest Payment Dates to the
Holders of record at the close of business on the relevant Record Dates referred
to in the Securities.
SECTION
3.06. Deposit
of Redemption Price.
On
or
before the Redemption Date, the Company shall deposit with the Paying Agent
U.S.
Legal Tender sufficient to pay the Redemption Price of all Notes to be redeemed
on that date (other than Notes or portions thereof called for redemption on
that
date which have been delivered by the Company to the Trustee for cancellation).
The Paying Agent shall promptly return to the Company any U.S. Legal Tender
so
deposited which is not required for that purpose upon the written request of
the
Company, except with respect to monies owed as obligations to the Trustee
pursuant to Article Seven.
If
the
Company complies with the preceding paragraph, then, unless the Company defaults
in the payment of such Redemption Price, interest on the Notes to be redeemed
will cease to accrue on and after the applicable Redemption Date, whether or
not
such Notes are presented for payment.
SECTION
3.07. Notes
Redeemed in Part.
Upon
surrender of a Note that is to be redeemed in part, the Trustee shall
authenticate for the Holder a new Note or Notes equal in principal amount to
the
unredeemed portion of the Note surrendered.
ARTICLE
FOUR
COVENANTS
SECTION
4.01. Payment
of Notes.
The
Company shall pay the principal of and interest on the Notes on the dates and
in
the manner provided in the Notes. An installment of principal of or interest
on
the Notes shall be considered paid on the date it is due if the Trustee or
Paying Agent holds on that date U.S. Legal Tender designated for and sufficient
to pay the installment.
The
Company shall pay interest on overdue principal and (to the extent permitted
by
law) on overdue installments of interest at a rate equal to 12% per
annum.
SECTION
4.02. Maintenance
of Office or Agency.
The
Company shall maintain in the Borough of Manhattan, The City of New York, the
office or agency required under Section 2.03. The Company shall give prior
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 address of the Trustee set forth in Section 12.02.
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 will 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 initially designates the office of the Trustee designated in
Section 12.02, as such office of the Company in accordance with this Section
4.02.
SECTION
4.03. Limitation
on Restricted Payments.
The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, after the Issue Date (a) declare or pay any dividend or make any
distribution on the Company’s Capital Stock or make any payment to holders of
such Capital Stock (other than dividends or distributions payable in Qualified
Capital Stock of the Company), (b) purchase, redeem or otherwise acquire or
retire for value any Qualified Capital Stock of the Company or any warrants,
rights or options to purchase or acquire shares of any class of such Capital
Stock, other than the exchange of such Capital Stock for Qualified Capital
Stock, (c) purchase, redeem, prepay, defease or otherwise acquire or retire
for
value, prior to any scheduled maturity, scheduled repayment or scheduled sinking
fund payment, Disqualified Capital Stock of the Company or Indebtedness of
the
Company that is expressly subordinate in right of payment to the Notes or (d)
make any Investment (excluding any Permitted Investment) (each of the foregoing
actions set forth in clauses (a), (b), (c) and (d) being referred to as a
“Restricted
Payment”),
if at the time of such Restricted Payment or immediately after giving effect
thereto, (i) a Default or an Event of Default shall have occurred and be
continuing or (ii) Restricted Payments made subsequent to the Issue Date (the
amount expended for such purposes, if other than in cash, shall be the Fair
Market Value of such property proposed to be transferred by the Company or
such
Subsidiary, as the case may be, pursuant to such Restricted Payment) shall
exceed the sum of:
(x)
50%
of the cumulative Consolidated Net Income (or if cumulative Consolidated Net
Income shall be a loss, minus 100% of such loss) of the Company earned
subsequent to May 1, 2006 and prior to the date the Restricted Payment occurs
(treating such period as a single accounting period);
(y)
100%
of the aggregate net proceeds, including the Fair Market Value of property
other
than cash, received by the Company from any Person (other than a Subsidiary
of
the Company) from the issuance and sale subsequent to the Issue Date of
Qualified Capital Stock of the Company (excluding (A) Qualified Capital Stock
paid as a dividend on any Capital Stock or as interest on any Indebtedness,
(B)
any net proceeds from issuances and sales financed directly or indirectly using
funds borrowed from the Company or any Subsidiary of the Company, until and
to
the extent such borrowing is repaid and (C) any net proceeds from any Equity
Offering which are used to redeem Notes pursuant to, and in accordance with,
the
provisions described in Section 3.01); and
(z)
100%
of the aggregate net proceeds, including the Fair Market Value of property
other
than cash, received by the Company from any Person (other than a Subsidiary
of
the Company) from the issuance and sale of Disqualified Capital Stock and/or
Indebtedness, in each case that has been converted into or exchanged for
Qualified Capital Stock of the Company after the Issue Date.
The
foregoing provisions shall not prohibit: (1) the payment of any dividend within
60 days after the date of its declaration if the dividend would have been
permitted on the date of declaration; (2) the acquisition of Capital Stock
of
the Company or Indebtedness of the Company either (i) solely in exchange for
shares of Qualified Capital Stock or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of shares of Qualified Capital Stock; and (3) the acquisition
of
Indebtedness of the Company that is expressly subordinate in right of payment
to
the Notes either (i) solely in exchange for Indebtedness of the Company which
is
expressly subordinate in right of payment to the Notes at least to the extent
that the Indebtedness being acquired is subordinated to the Notes and has no
scheduled principal prepayment dates prior to the scheduled final maturity
date
of the Indebtedness being exchanged or (ii) through the application of net
proceeds of a substantially concurrent sale for cash (other than to a Subsidiary
of the Company) of Indebtedness of the Company which is expressly subordinate
in
right of payment to the Notes at least to the extent that the Indebtedness
being
acquired is subordinated to the Notes and has no scheduled principal prepayment
dates prior the scheduled final maturity date of the Indebtedness being
refinanced; provided that in the case of clauses (2) and (3), no Default or
Event of Default shall have occurred and be continuing at the time of such
payment or as a result thereof.
The
foregoing provisions shall not prohibit: (1) the payment of dividends on the
Preferred Stock to the Company provided such dividends are paid in additional
shares of Preferred Stock of the Company; (2) provided that no Event of Default
has occurred and is continuing, the redemption of the Company’s Preferred Stock
120 days after a Change in Control has occurred, (3) the redemption of the
Company’s Preferred Stock provided that the redemption price of such Preferred
Stock is paid in Common Stock of the Company; (4) in the event that the Company
incurs unsecured Indebtedness pursuant to clause (ix) of the definition of
“Permitted Indebtedness,” provided no Event of Default shall have occurred and
be continuing and the Company shall have received a Rating Confirmation from
each rating agency that rates the general corporate credit of the Company,
the
Company may redeem its Preferred Stock with the proceeds of such Indebtedness,
and (5) after January 1, 2008, dividends with respect to the Company’s
outstanding Capital Stock if the Company has Cash Available to Pay Dividends
(measured from the Issue Date to the date on which a dividend is to be paid)
in
excess of the product of (a) the number of years from the Issue Date to the
date
on which a dividend is to be paid and (b) $50,000,000.
In
determining the aggregate amount of Restricted Payments permissible under clause
(ii) of the first paragraph of this section, amounts expended, incurred or
outstanding pursuant to clauses (1) and (2) (but not pursuant to clause (3)
of
the second paragraph of this section shall be included as Restricted Payments;
provided that any proceeds received from the issuance of Qualified Capital
Stock
pursuant to clause (2) of the second paragraph of this section shall be included
in calculating the amount referred to in clause (y) or clause (z), as the case
may be, of the first paragraph of this section.
Prior
to
any Restricted Payment under the first paragraph of this Section 4.03, the
Company shall deliver to the Trustee an Officers’ Certificate setting forth the
computation by which the amount available for Restricted Payments pursuant
to
such paragraph was determined. The Trustee shall have no duty or responsibility
to determine the accuracy or correctness of this computation and shall be fully
protected in relying on such Officers’ Certificate.
SECTION
4.04. Corporate
Existence.
Except
as
otherwise permitted by Article Five, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Subsidiaries
in
accordance with the respective organizational documents of each such Subsidiary
and the rights (charter and statutory) and franchises of the Company and each
such Subsidiary; provided, however, that the Company shall not be required
to
preserve, with respect to itself, any right or franchise, and with respect
to
any of its Subsidiaries any such existence, right or franchise, if the Board
of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and will not
be
adverse in any material respect to the Holders.
SECTION
4.05. Payment
of Taxes and Other Claims.
The
Company shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges (including withholding taxes and any penalties, interest and additions
to taxes) levied or imposed upon it or
any
of
its Subsidiaries or properties of it or any of its Subsidiaries and (ii) all
lawful claims for labor, materials and supplies that, if unpaid, might by law
become a Lien upon the property of it or any of its Subsidiaries; provided,
however, that, subject to the terms of the applicable Collateral Document,
the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim if either (a) the amount,
applicability or validity thereof is being contested in good faith by
appropriate proceedings and an adequate reserve has been established therefor
to
the extent required by GAAP or (b) the failure to make such payment or effect
such discharge (together with all other such failures) would not have a material
adverse effect on the financial condition or results of operations of the
Company and its Subsidiaries, taken as a whole.
SECTION
4.06. Maintenance
of Properties and Insurance.
(a) Subject
to the applicable provisions of the Collateral Documents, the Company shall
cause all properties used or useful in the conduct of its business or the
business of any of its Subsidiaries to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and shall
cause to be made all necessary repairs, renewals, replacements, betterments
and
improvements thereof, all as in its judgment may be necessary, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times unless the failure to so maintain such properties
(together with all other such failures) would not have a material adverse effect
on the financial condition or results of operations of the Company and its
Subsidiaries taken as a whole; provided, however, that nothing in this Section
4.06 shall prevent the Company or any Subsidiary of the Company from
discontinuing the operation or maintenance of any of such properties (other
than
properties constituting items of Collateral except to the extent permitted
by
Section 10.04), or disposing of any of them (other than properties constituting
items of Collateral except to the extent permitted by Section 10.04), if such
discontinuance or disposal is either (i) in the ordinary course of business,
(ii) in the good faith judgment of the Board of Directors of the Company or
the
Subsidiary concerned, or of the senior officers of the Company or such
Subsidiary, as the case may be, desirable in the conduct of the business of
the
Company or such Subsidiary, as the case may be, or (iii) is otherwise permitted
by this Indenture.
(b) The
Company shall provide or cause to be provided, for itself and each of its
Subsidiaries, insurance (including appropriate self-insurance) against loss
or
damage of the kinds that, in the reasonable, good faith opinion of the Company
are adequate and appropriate for the conduct of the business of the Company
and
such Subsidiaries in a prudent manner, with reputable insurers or with the
government of the United States of America or an agency or instrumentality
thereof, in such amounts, with such deductibles, and by such methods as shall
be
customary, in the reasonable, good faith opinion of the Company, for companies
similarly situated in the industry, unless the failure to provide such insurance
(together with all other such failures) would not have a material adverse effect
on the financial condition or results of operations of the Company and its
Subsidiaries, taken as a whole.
SECTION
4.07. Compliance
Certificate; Notice of Default.
(a) The
Company shall deliver to the Trustee, within 60 days after the end of the
Company’s fiscal quarters and within 90 days after the end of the Company’s
fiscal year, an
Officers’
Certificate stating that a review of its activities and the activities of its
Subsidiaries during the preceding fiscal period has been made under the
supervision of the signing Officers with a view to determining whether it 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 knowledge, the Company during such preceding fiscal period has
kept,
observed, performed and fulfilled each and every such covenant and no Default
or
Event of Default occurred during such period and at the date of such certificate
there is no Default or Event of Default that has occurred and is continuing
or,
if such signers do know of such Default or Event of Default, the certificate
shall describe the Default or Event of Default and its status with
particularity. The Officers’ Certificate shall also include all calculations
necessary to show covenant compliance. The Officers’ Certificate shall also
notify the Trustee should the Company elect to change the manner in which it
fixes its fiscal year end.
(b) So
long
as not contrary to the then current recommendations of the American Institute
of
Certified Public Accountants, the Company shall deliver to the Trustee within
90
days after the end of each fiscal year a written statement by the Company’s
independent certified public accountants stating (A) that their audit
examination has included a review of the terms of this Indenture and the Notes
as they relate to accounting matters, and (B) whether, in connection with their
audit examination, any Default or Event of Default has come to their attention
and if such a Default or Event of Default has come to their attention,
specifying the nature and period of existence thereof.
(c) The
Company will deliver to the Trustee as soon as possible, and in any event within
10 days after the Company becomes aware or should reasonably have become aware
of the occurrence 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
4.08. Compliance
with Laws.
The
Company shall comply, and shall cause each of its Subsidiaries to comply, with
all applicable statutes, rules, regulations, orders and restrictions of the
United States of America, all states and municipalities thereof, and of any
governmental department, commission, board, regulatory authority, bureau, agency
and instrumentality of the foregoing, in respect of the conduct of their
respective businesses and the ownership of their respective properties, except
such as are being contested in good faith and by appropriate proceedings and
except for such noncompliances as would not in the aggregate have a material
adverse effect on the financial condition or results of operations of the
Company and its Subsidiaries taken as a whole.
SECTION
4.09. SEC
Reports and Other Information.
(a) At
all
times when the Company is required to file or permitted voluntarily to file
(after a registration statement with respect to the Notes has been declared
effective) with the SEC pursuant to Section 13 or 15(d) of the Exchange Act
or
this Indenture is qualified under the TIA, the Company (at its own expense)
shall file with the SEC and shall file with the Trustee and mail or cause the
Trustee to mail to the Holders at their addresses set forth in the register
of
Notes within 15 days after it files them with the SEC copies of the annual
reports, quarterly
reports
and the information, documents, and other reports (or copies of such portions
of
any of the foregoing as the SEC may by rules and regulations prescribe) to
be
filed pursuant to Section 13 or 15(d) of the Exchange Act. If the Company is
not
subject to the requirements of such Section 13 or 15(d) of the Exchange Act
and
not permitted to voluntarily file (after a registration statement with respect
to the Notes has been declared effective) and this Indenture has not been
qualified under the TIA, the Company (at its own expense) shall file with the
Trustee and mail or cause the Trustee to mail to the Holders at their addresses
set forth in the register of Securities, within 15 days after it would have
been
required to file such information with the SEC, all information and financial
statements, including any notes thereto and with respect to annual reports,
quarterly reports, an auditors’ report by an accounting firm of established
national reputation, and a “Management’s Discussion and Analysis of Financial
Condition and Results of Operations,” both comparable to the disclosure that the
Company would have been required to include in such annual reports, quarterly
reports, information, documents or other reports, as if the Company was subject
to the requirements of such Section 13 or 15(d) of the Exchange Act, excluding
officer certifications required by the Sarbanes-Oxley Act of 2002, in each
case
in the form that would have been required by the SEC. Upon qualification of
this
Indenture under the TIA, the Company shall also comply with the provisions
of
TIA § 314(a).
(b) At
any
time when the Company is not subject to Section 13 or 15(d) of the Exchange
Act,
upon the request of a Holder of a Note, the Company will promptly furnish or
cause to be furnished such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) to
such
Holder or to a prospective purchaser of such Note designated by such Holder,
as
the case may be, in order to permit compliance by such Holder with Rule 144A
under the Securities Act.
SECTION
4.10. Waiver
of
Stay, Extension or Usury Laws.
The
Company covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law
that would prohibit or forgive the Company from paying all or any portion of
the
principal of or interest on the Notes as contemplated herein, wherever enacted,
now or at any time hereafter in force, or which may affect the covenants or
the
performance of this Indenture; and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution
of
every such power as though no such law had been enacted.
SECTION
4.11. Limitation
on Transactions with Affiliates.
(a) The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, enter into or permit to exist any transaction (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with or for the benefit of, an Affiliate of the Company or any
Subsidiary of the Company (other than transactions between the Company and
a
Wholly-owned Subsidiary of the Company or between Wholly-owned Subsidiaries
of
the Company) (an “Affiliate Transaction”), other than (x) Affiliate
Transactions permitted
under (b) below and (y) Affiliate Transactions (including lease transactions)
on
terms
that
are
no less favorable to the Company or the relevant Subsidiary in the aggregate
than those that might reasonably have been obtained in a comparable transaction
by the Company or such Subsidiary on an arm’s-length basis (as determined in
good faith by the Board of Directors of the Company, as evidenced by a Board
Resolution) from a Person that is not an Affiliate; provided that except as
otherwise provided by (b) below, neither the Company nor any of its Subsidiaries
shall enter into an Affiliate Transaction or series of related Affiliate
Transactions involving or having a value of more than $100,000.00 unless the
Company or such Subsidiary, as the case may be, has received an opinion from
an
Independent Financial Advisor, with a copy thereof to the Trustee, to the effect
that the financial terms of such Affiliate Transaction are fair and reasonable
to the Company or such Subsidiary, as the case may be, and such terms are no
less favorable to the Company or such Subsidiary, as the case may be, than
those
that could be obtained in a comparable transaction on an arm’s-length basis with
a Person that is not an Affiliate.
(b) The
foregoing provisions shall not apply to (i) any Restricted Payment that is
made
in compliance with Section 4.03 and (ii) reasonable and customary regular fees
to directors of the Company who are not employees of the Company.
SECTION
4.12. Limitation
on Incurrence of Additional Indebtedness.
(a) The
Company will not, and will not cause or permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume, guarantee, become liable,
contingently or otherwise, with respect to, or otherwise become responsible
for
the payment of (collectively “incur”) any Indebtedness (including Acquired
Indebtedness) other than Permitted Indebtedness; provided that the Company
may
incur Indebtedness (including Acquired Indebtedness) if: (A) no Default or
Event
of Default shall have occurred and be continuing at the time of the proposed
incurrence thereof or shall occur as a result of such proposed incurrence,
and
(B) after giving effect to such proposed incurrence, the Consolidated Fixed
Charge Coverage Ratio of the Company is at least equal to 2.0 to 1.
Notwithstanding the foregoing, a Wholly-owned Subsidiary of the Company may
incur Acquired Indebtedness to the extent such Indebtedness could have been
incurred by the Company pursuant to the proviso in the immediately preceding
sentence.
(b) The
Company shall not, directly or indirectly, in any event incur any Indebtedness
which by its terms (or by the terms of any agreement governing such
Indebtedness) is subordinated to any other Indebtedness of the Company unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinated to the Notes to the
same extent and in the same manner as such Indebtedness is subordinated to
such
other Indebtedness of the Company.
SECTION
4.13. Limitation
on Dividends and Other Payment Restrictions Affecting
Subsidiaries.
The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, create or otherwise cause or suffer to exist or become effective
any
encumbrance or restriction on the ability of any Subsidiary of the Company
to:
(a) pay dividends or make any other
distributions on its Capital Stock, or any other interest or participation
in,
or measured by,
its
profits, owned by the Company or by any Subsidiary of the Company, or pay any
Indebtedness owed to the Company or a Subsidiary of the Company; (b) make loans
or advances to the Company or a Subsidiary of the Company; or (c) transfer
any
of its properties or assets to the Company or to any Subsidiary of the Company,
except for such encumbrances or restrictions existing under or by reason of:
(i)
applicable law; (ii) this Indenture; (iii) customary nonassignment provisions
of
any lease governing a leasehold interest of the Company or any Subsidiary of
the
Company; (iv) any instrument governing Indebtedness of a Person acquired by
the
Company or any Subsidiary of the Company at the time 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 its Subsidiaries so acquired;
(v)
any written agreement existing on the Issue Date; provided that the term of
any
such agreement shall not be extended beyond the term as in effect on the Issue
Date and no such agreement shall be modified or amended in such a manner as
to
make the encumbrance or restriction more restrictive than as in effect on the
Issue Date; (vi) Indebtedness existing and as in effect on the Issue Date,
including the DIP Credit Agreement or any refinancing, refunding, replacement
or
extensions thereof; provided that any such encumbrance or restriction contained
in any refinancing, refunding, replacement or extension of the DIP Credit
Agreement shall be no more restrictive than such encumbrance or restriction
contained in the DIP Credit Agreement as in effect on the Issue Date; (vii) the
Credit Agreement or any refinancing, refunding, replacement or extensions
thereof; provided that any such encumbrance or restriction contained in any
refinancing, refunding, replacement or extension of the Credit Agreement shall
be no more restrictive than such encumbrance or restriction contained in the
Credit Agreement in effect on the Issue Date and (viii) Indebtedness incurred
in
accordance with this Indenture; provided that such encumbrance or restriction
shall be no more restrictive than any encumbrance or restriction contained
in
the Credit Agreement as in effect on the Issue Date.
SECTION
4.14. Limitation
on Liens.
The
Company will not, and will not permit any of its Subsidiaries to, directly
or
indirectly, create, incur, assume or suffer to exist any Liens (i) upon any
item
of Collateral other than (A) the Liens created by the Notes, this Indenture
and
the Collateral Documents and the Liens expressly permitted by the applicable
Collateral Document and (B) the Lien granted to the trustee of the Collateral
Trust pursuant to the Collateral Trust Mortgage and (ii) upon any other
properties or assets of the Company (including any Capital Stock of a
Subsidiary) or any of their Subsidiaries whether owned on the Issue Date or
acquired after the Issue Date, or on any income or profits therefrom, or assign
or otherwise convey any right to receive income or profits thereon other than
(a) Liens existing on the Issue Date to the extent and in the manner such Liens
are in effect on the Issue Date, and (b) Permitted Liens.
SECTION
4.15. Change
of
Control.
(a) Upon
the
occurrence of a Change of Control, the Company shall be obligated to make an
offer to purchase all outstanding Notes pursuant to the offer described in
paragraph (b), below (the “Change of Control Offer”), at a purchase price equal
to 101% of the principal amount thereof plus accrued interest, if any, to the
date of purchase. Within 10 days after the date upon which the Change of Control
occurred (the “Change of Control Date”)
requiring
the Company to make a Change of Control
Offer pursuant to this Section 4.15, the Company shall so notify the
Trustee.
(b) The
notice to the Holders shall contain all instructions and materials necessary
to
enable such Holders to tender Notes pursuant to the Change of Control Offer.
Within 30 days following any Change of Control Date, the Company shall send,
by
first class mail, a notice to each Holder, with copies to the Trustee, which
notice shall govern the terms of the Change of Control Offer. Such notice shall
state:
(i) that
the
Change of Control Offer is being made pursuant to this Section 4.15 and that
all
Notes tendered will be accepted for payment;
(ii) the
purchase price (including the amount of accrued interest);
(iii) that,
with respect to any particular Holder, the purchase date (the “Change of Control
Payment Date”) shall be fifth Business Day following the date upon which the
Holder tenders its Note or any portion thereof, provided that such date shall
be
no later than 95 days after the Change of Control Date;
(iv) that
any
Note not tendered will continue to accrue interest;
(v) that,
unless the Company defaults in making payment therefor, any Note accepted for
payment pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(vi) that
Holders electing to have a Note purchased pursuant to a Change of Control Offer
will be required to surrender the Note, with the form entitled “Option of Holder
to Elect Purchase” on the last page of the Note completed, to the Paying Agent
at the address specified in the notice prior to the close of business on the
Business Day prior to the Change of Control Payment Date;
(vii) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than two Business Days prior to the Change of Control
Payment Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Notes the Holder delivered
for purchase and a statement that such Holder is withdrawing his election to
have such Note purchased;
(viii) that
Holders whose Notes are purchased only in part will be issued new Notes in
a
principal amount equal to the unpurchased portion of the Notes surrendered;
and
(ix) the
circumstances and relevant facts regarding such Change of Control.
On
or
before the Change of Control Payment Date, the Company shall (i) accept for
payment Notes or portions thereof tendered pursuant to the Change of Control
Offer, (ii) deposit with the Paying Agent U.S. Legal Tender sufficient to pay
the purchase price of all Notes so tendered and (iii) deliver to the Trustee
Notes so accepted together with an Officers’
Certificate
stating the Notes or portions thereof being purchased by the Company. The Paying
Agent shall promptly mail to the Holders of Notes so accepted payment in an
amount equal to the purchase price, and the Trustee shall promptly authenticate
and mail to such Holders new Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. Any Notes not so accepted shall be promptly
mailed by the Company to the Holder thereof. The Company will publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Payment Date. The Company shall comply, to the extent
applicable, with the requirements of Section 14(e) of the Exchange Act and
any
other securities laws or regulations in connection with the repurchase of
securities pursuant to a Change of Control Offer. The Change of Control Offer
shall remain open for at least the longer of 20 Business Days or 90 days after
the Change of Control Date. For purposes of this Section 4.15, the Trustee
shall
act as the Paying Agent.
SECTION
4.16. Limitation
on Asset Sales.
(a) The
Company will not, and will not permit any of its Subsidiaries to, consummate
any
Asset Sale, unless (i) the Company or the applicable 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 sold or otherwise disposed of, (ii) at least
80%
of the consideration received by the Company or such Subsidiary, as the case
may
be, from such Asset Sale shall be in the form of cash or Cash Equivalents,
(iii)
if such Asset Sale involves Collateral it shall be in compliance with the
provisions of this Indenture and the Collateral Documents, and (iv) the Company
or such Subsidiary shall apply the Net Cash Proceeds of such Asset Sale within
180 days of receipt thereof, as follows:
(i)
first,
to
the extent such Net Cash Proceeds are received from an Asset Sale not involving
the sale, transfer or disposition of Collateral (“Non-Collateral Proceeds”), to
repay (and, in the case of a revolving credit facility, effect a permanent
reduction in the commitment thereunder) any Indebtedness secured by the assets
involved in such Asset Sale or otherwise required to be repaid with the proceeds
thereof, and
(ii)
second,
with respect to any Non-Collateral Proceeds remaining after application pursuant
to the preceding paragraph (A) and any Net Cash Proceeds received from an Asset
Sale involving Collateral (“Collateral Proceeds” and, together with such
remaining Non-Collateral Proceeds, the “Available Amount”), the Company shall
make an offer to purchase (the “Asset Sale Offer”) from all Holders of Notes, up
to a maximum principal amount (expressed as a multiple of $1) of Notes equal
to
the Available Amount at a purchase price equal to 100% of the principal amount
thereof plus accrued and unpaid interest thereon, if any, to the date of
purchase; provided, however, that the Company will not be required to apply
pursuant to this paragraph (B) Net Cash Proceeds received from any Asset Sale
if, and only to the extent that, such Net Cash Proceeds are applied to a Related
Business Investment within 180 days of such Asset Sale and, if the Net Cash
Proceeds so invested were Collateral Proceeds, the property and assets
constituting such Related Business Investment and any other non-cash
consideration received as a result of such Asset Sale are made subject to the
Lien of this Indenture and the applicable Collateral Documents pursuant to
the
provisions of this Indenture and the applicable Collateral Documents; provided,
further, that to the extent
any
such
assets subject to an Asset Sale constituted Collateral, any property and assets
constituting a Related Business Investment and any other non-cash consideration
received as a result of such Asset Sale shall not consist of inventory or
receivables and shall constitute Collateral under the terms hereof and under
the
terms of the Collateral Documents; provided, further, that if at any time any
non-cash consideration received by the Company or any Subsidiary of the Company,
as the case may be, in connection with any Asset Sale is converted into or
sold
or otherwise disposed of for cash, then such conversion or disposition shall
be
deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof
shall be applied in accordance with this Section 4.16. To the extent the Asset
Sale Offer is not fully subscribed to by Holders of the Securities, the Company
may obtain a release of the unutilized portion of the Available Amount from
the
lien of the Collateral Documents in accordance with Section 11.03. All Net
Cash
Proceeds received from the sale of assets constituting Collateral shall
constitute Trust Moneys and shall be delivered by the Company (or the applicable
Subsidiary of the Company) to the Trustee and be deposited in the Collateral
Account in accordance with this Indenture. Net Cash Proceeds so deposited may
be
withdrawn from the Collateral Account in accordance with Section 11.03 or
11.04.
(b) The
Company shall provide the Trustee with prompt notice of the occurrence of an
Asset Sale Offer. Such notice shall be accompanied by an Officers’ Certificate
setting forth (i) a statement to the effect that the Company or a Subsidiary
of
the Company has made an Asset Sale and (ii) the aggregate principal amount
of
Notes offered to be purchased and the basis of calculation in determining such
aggregate principal amount.
(c) The
notice of an Asset Sale Offer shall be sent, by first class mail, by the Company
(or caused to be mailed by the Company) with a copy to the Trustee to all
Holders of Notes not less than 30 days nor more than 60 days before the Asset
Sale Payment Date at their last registered addresses. The Asset Sale Offer
shall
remain open from the time of mailing until three days before the Asset Sale
Offer Payment Date. The notice to the Holders shall contain all instructions
and
materials necessary to enable such Holders to tender Notes pursuant to the
Asset
Sale Offer. Such notice shall state:
(i) that
the
Asset Sale Offer is being made pursuant to Section 4.16;
(ii) the
purchase price (including an amount of accrued interest) and the Asset Sale
Offer Payment Date;
(iii) that
any
Note not tendered will continue to accrue interest;
(iv) that
unless the Company defaults in making payment therefor, any Note accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest after
the Asset Sale Offer Payment Date;
(v) that
Holders electing to have a Note purchased pursuant to an Asset Sale Offer
will be required to surrender the Note , with the form entitled “Option of
Holder to Elect Purchase” on the last page of the Note completed, to the
Paying Agent at
the
address specified in the notice prior to the
close of business on the Business Day prior to the Asset Sale Offer Payment
Date;
(vi) that
Holders will be entitled to withdraw their election if the Paying Agent
receives, no later than two Business Days prior to the Asset Sale Offer Payment
Date, a telegram, telex, facsimile transmission or letter stating fully the
name
of the Holder, the principal amount of the Notes the Holder delivered for
purchase and a statement that such Holder is withdrawing his election to have
such Note purchased;
(vii) that
if
Notes in a principal amount in excess of the principal amount of the Notes
to be
acquired pursuant to the Asset Sale Offer are tendered and not withdrawn
pursuant to the Asset Sale Offer, the Company shall purchase Notes on a pro
rata
basis (with such adjustment as may be deemed appropriate by the Company so
that
only Notes in denominations of $1 or integral multiples of $1 shall be so
acquired); and
(viii)
that
Holders whose
Notes are
purchased only
in
part will be
issued
new Notes
in
aprincipal
amount equal
to
the unpurchased
portion of the
Notes
surrendered.
On
or
before an Asset Sale Offer Payment Date, the Company shall (i) accept for
payment Notes or portions thereof tendered pursuant to the Asset Sale Offer
(on
a pro rata basis if required pursuant to paragraph (vii) above), (ii) deposit
with the Paying Agent U.S. Legal Tender sufficient to pay the purchase price
of
all Notes or portions thereof so tendered and (iii) deliver to the Trustee
Notes
so accepted together with an Officers’ Certificate identifying the Notes or
portions thereof accepted for payment by the Company. The Paying Agent shall
promptly mail or deliver to Holders of Notes so accepted payment in an amount
equal to the purchase price, and the Trustee shall promptly authenticate and
mail or deliver to such Holders new Notes equal in principal amount to any
unpurchased portion of the Notes surrendered. Any Notes not so accepted shall
be
promptly mailed or delivered by the Company to the Holder thereof. The Company
will publicly announce the results of the Asset Sale Offer as promptly as
practicable following the Asset Sale Offer Payment Date. The Company shall
comply, to the extent applicable, with the requirements of Section 14(e) of
the
Exchange Act and any other securities laws or regulations in connection with
the
repurchase of Notes pursuant to an Asset Sale Offer.
(d) In
the
event of the transfer of substantially all (but not all) of the property and
assets of the Company and its Subsidiaries as an entirety to Person in a
transaction permitted under Article Five hereof, the successor corporation
shall
be deemed to have sold the properties and assets of the Company and its
Subsidiaries not so transferred for purposes of this Section 4.16, and shall
comply with the provisions of this covenant with respect to such deemed sale
as
if it were an Asset Sale. In addition, the Fair Market Value of such properties
and assets of the Company or its Subsidiaries deemed to be sold shall be deemed
to be Net Cash Proceeds for purposes of this Section 4.16.
SECTION
4.17. Limitation
on Sale/leaseback Transactions.
The
Company shall not, and shall not permit any of its Subsidiaries to, enter into
any Sale/leaseback. Notwithstanding the foregoing, the Company and its
Subsidiaries may enter into a Sale/leaseback involving only the sale or transfer
of assets acquired after the Issue Date and not constituting Collateral if
(i)
after giving pro forma effect to any such Sale/leaseback, the Company shall
be
in compliance with Section 4.12, (ii) the sale price in such Sale/leaseback
is
at least equal to the Fair Market Value of such property and (iii) the Company
or such Subsidiary shall apply the Net Cash Proceeds of the sale as provided
pursuant to Section 4.16, to the extent required.
SECTION
4.18. Limitation
on Preferred Stock of Subsidiaries.
The
Company will not permit any of its Subsidiaries to issue any Preferred Stock
(other than to the Company or to a Wholly-owned Subsidiary of the Company)
or
permit any Person (other than the Company or a Wholly-owned Subsidiary of the
Company) to hold any Preferred Stock of any Subsidiary of the
Company.
SECTION
4.19. Future
Guarantees.
The
Company or any of its Wholly-owned Subsidiaries may transfer, in one transaction
or a series of related transactions, any Collateral to any Wholly-owned
Subsidiary of the Company, if such transferee Wholly-owned Subsidiary shall
(i)
execute and deliver to the Trustee a supplemental indenture in form reasonably
satisfactory to the Trustee pursuant to which such Wholly-owned Subsidiary
shall
unconditionally guarantee on a senior secured basis (secured by the Collateral
so transferred) all of the Company’s obligations under the Notes and this
Indenture, (ii) take all necessary action to cause the Lien of the Collateral
Documents on such Collateral in favor of the Trustee to remain in full force
and
effect at all times, (iii) deliver to the Trustee an opinion of counsel that
such supplemental indenture and any other documents required to comply with
clause (ii) above have been duly authorized, executed and delivered by such
Wholly-owned Subsidiary and the supplemental indenture and each such other
document constitutes a legal, valid, binding and enforceable obligation of
such
Wholly-owned Subsidiary and (iv) take such further action and execute and
deliver such other documents specified in this Indenture or otherwise reasonably
requested by the Trustee to effectuate the foregoing.
SECTION
4.20. Impairment
of Note Interest.
The
Company shall not, and shall not permit any of its Subsidiaries to, take or
omit
to take any action, which action or omission might or would have the result
of
affecting or impairing the security interest in favor of the Collateral Agent,
on behalf of the Trustee and the Holders, with respect to the Collateral, and
the Company shall not grant to any Person (other than the Collateral Agent
on
behalf of the Trustee and the Holders) any interest whatsoever in the
Collateral, except, in either case, as expressly permitted by this Indenture
and
the Collateral Documents.
SECTION
4.21. Amendment
to Collateral Documents.
The
Company will not amend, modify or supplement, or permit or consent to any
amendment, modification or supplement of, the Collateral Documents in any way
which would be adverse to the Holders.
SECTION
4.22. Inspection
and Confidentiality.
(a) The
Company shall, and shall cause each of its Subsidiaries to, permit authorized
representatives of the Trustee and the Collateral Agent to visit and inspect
the
properties of the Company or its Subsidiaries, and any or all books, records
and
documents in the possession of the Company relating to the Collateral, and
to
make copies and take extracts therefrom and to visit and inspect the Collateral,
all upon reasonable prior notice and at such reasonable times during normal
business hours and as often as may be reasonably requested.
(b) The
Trustee and the Collateral Agent and their respective authorized representatives
referred to in Section 4.22(a) agree not to use any information obtained
pursuant to this Section 4.22 for any unlawful purpose and to keep confidential
and not to disclose any such information to any Person except that (i) the
recipient of the information may disclose any information that becomes publicly
available other than as a result of disclosure by such recipient, (ii) the
recipient of the information may disclose any information that its counsel
reasonably concludes is necessary to be disclosed by law, pursuant to any court
or administrative order or ruling or in any pending legal or administrative
proceeding or investigation after prior written notice, reasonable under the
circumstances, to the Company, and (iii) the recipient of the information may
disclose any information necessary to be disclosed pursuant to any provision
of
the TIA or pursuant to this Indenture.
SECTION
4.23. Release
of Released Real Property.
The
Company shall have the right to obtain the release of any Collateral
constituting Released Real Property upon the satisfaction of the conditions
precedent set forth in Section 10.03(c) hereof.
ARTICLE FIVE
SUCCESSOR
CORPORATION
SECTION
5.01. When
Company May Merge, Etc.
(a) The
Company will not, in a single transaction or through a series of related
transactions, (1) consolidate or merge with or into any other Person, or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially
all
of its properties and assets as an entirety or substantially as an entirety
to
another Person or group of affiliated Persons or (2) adopt a Plan of
Liquidation, unless, in either case:
(i) either
the Company is the surviving or continuing Person, or the Person (if other
than
the Company) formed by such consolidation or into which the Company is merged
or
to which all or substantially all of the properties and assets of
the
Company
as an entirety or substantially as an entirety are transferred (or, in the
case
of a Plan of Liquidation, any Person to which assets are transferred) (the
Company or such other Person being hereinafter referred to as the “Surviving
Person”) is a corporation organized and validly existing under the laws of the
United States, any State thereof or the District of Columbia, and expressly
assumes, by an indenture supplemental hereto, executed and delivered to the
Trustee on or prior to the consummation of such transaction, in form
satisfactory to the Trustee, all the obligations of the Company under the Notes
and this Indenture;
(ii)
immediately
after giving effect to such transaction or series of transactions on a pro
forma
basis and the assumption of obligations contemplated by clause (1) above
(including any Indebtedness and Acquired Indebtedness incurred or anticipated
to
be incurred in connection with or in respect of such transaction but prior
to
any purchase accounting adjustments relating to such transaction), the
Consolidated Net Worth of the Surviving Person would be equal to or greater
than
the Consolidated Net Worth of the Company immediately prior to such transaction;
(iii) immediately
after giving effect to such transaction on a pro forma basis and the assumption
of obligations contemplated by clause (1) above (including any Indebtedness
and
Acquired Indebtedness incurred or anticipated to be incurred in connection
with
or in respect of such transaction and assuming a market rate of interest with
respect thereto), the Surviving Person shall be able to incur $1 of additional
Indebtedness (other than Permitted Indebtedness) under Section 4.12;
(iv) immediately
before and immediately after giving effect to such transaction and the
assumption of the obligations as set forth in clause (1) above and the
incurrence or anticipated incurrence of any Indebtedness and Acquired
Indebtedness to be incurred in connection therewith, no Default or Event of
Default shall have occurred and be continuing; the Company has delivered to
the
Trustee an Officers’ Certificate and an Opinion of Counsel (which counsel shall
not be in-house counsel), each stating that such consolidation, merger, transfer
or adoption and such supplemental indenture, if required, comply with this
Article Five, that the Surviving Person agrees to be bound hereby, and that
all
conditions precedent herein provided relating to such transaction have been
satisfied;
(v) the
Company has delivered to the Trustee a certificate from its independent
certified public accountants stating that the Company has made the calculations
required by clauses (ii) and (iii) above in accordance with the terms of this
Indenture; and
(vi) none
of
the Company, any Subsidiary of the Company or the Surviving Person would
thereupon become obligated with respect to any Indebtedness (including Acquired
Indebtedness) nor would any of its assets or properties become subject to a
Lien, unless the Company, any Subsidiary of the Company or the Surviving Person
could incur such Indebtedness (including Acquired Indebtedness) or create such
Lien under this Indenture (after giving effect to such Person being bound by
all
the terms of this Indenture).
(b) For
purposes of the foregoing, the transfer (by sale, assignment, lease, conveyance
or other disposition, in a single transaction or series of transactions) of
all
or substantially all of the properties or assets of one or more Subsidiaries
of
the Company the Capital Stock of which constitutes all or substantially all
of
the properties and assets of the Company shall be deemed to be the transfer
of
all or substantially all of the properties and assets of the
Company.
SECTION
5.02. Successor
Corporation Substituted.
Upon
any
consolidation or merger, or any transfer of assets in accordance with Section
5.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein. When a successor corporation assumes all of the
obligations of the Company hereunder and under the Notes and agrees to be bound
hereby and thereby, the predecessor shall be released from such
obligations.
ARTICLE
SIX
DEFAULT
AND REMEDIES
SECTION
6.01. Events
of
Default.
An
“Event
of Default” occurs if:
(a) the
Company defaults in the payment of interest on any Notes when the same becomes
due and payable and the Default continues for a period of 30 days;
(b) the
Company defaults in the payment of the stated principal amount of any Notes
when
the same becomes due and payable at maturity, upon acceleration or redemption
pursuant to an offer to purchase required hereunder or otherwise;
(c) the
Company fails to comply in all material respects with any of its other
agreements contained in the Notes, this Indenture (including under Sections
4.15, 4.16 and 5.01) or the Collateral Documents and to the extent applicable,
the Default continues for the period and after the notice specified
below;
(d) there
shall be any default or defaults in the payment of principal or interest under
one or more agreements, instruments, mortgages, bonds, debentures or other
evidences of Indebtedness under which the Company or any Subsidiary of the
Company then has outstanding Indebtedness in excess of $1 million, individually
or in the aggregate;
(e) there
shall be any default or defaults under one or more agreements, instruments,
mortgages, bonds, debentures or other evidences of Indebtedness under which
the
Company or any Subsidiary of the Company then has outstanding Indebtedness
in
excess of $500,000.00, individually or in the aggregate, and such default or
defaults have resulted in the acceleration of the maturity of such
Indebtedness;
(f) the
Company or any of its Subsidiaries fails to perform any term, covenant,
condition or provision of one or more agreements, instruments, mortgages, bonds,
debentures or other evidences of Indebtedness under which the Company or any
of
its Subsidiaries then has outstanding Indebtedness in excess of $500,000.00,
individually or in the aggregate, and such failure to perform results in the
commencement of judicial proceedings to foreclose upon any assets of the Company
or any of its Subsidiaries securing such Indebtedness or the holders of such
Indebtedness shall have exercised any right under applicable law or applicable
security documents to take ownership of any such assets in lieu of
foreclosure;
(g) one
or
more judgments, orders or decrees for the payment of money which either
individually or in the aggregate at any one time exceeds $500,000.00 shall
be
rendered against the Company or any of its Subsidiaries by a court of competent
jurisdiction and shall remain undischarged and unbonded for a period (during
which execution shall not be effectively stayed) of 60 consecutive days after
such judgment becomes final and nonappealable;
(h) the
Company or any Significant Subsidiary of the Company (A) admits in writing
its
inability to pay its debts generally as they become due, (B) commences a
voluntary case or proceeding under any Bankruptcy Law with respect to itself,
(C) consents to the entry of a judgment, decree or order for relief against
it
in an involuntary case or proceeding under any Bankruptcy Law, (D) consents
to
the appointment of a Custodian of it or for substantially all of its property,
(E) consents to or acquiesces in the institution of a bankruptcy or an
insolvency proceeding against it, (F) makes a general assignment for the benefit
of its creditors, or (G) takes any corporate action to authorize or effect
any
of the foregoing;
(i) a
court
of competent jurisdiction enters a judgment, decree or order for relief in
respect of the Company or any Significant Subsidiary of the Company in an
involuntary case or proceeding under any Bankruptcy Law, which shall (A) approve
as properly filed a petition seeking reorganization, arrangement, adjustment
or
composition in respect of the Company or any Significant Subsidiary of the
Company, (B) appoint a Custodian of the Company, or any Significant Subsidiary
of the Company or for substantially all of its property or (C) order the
winding-up or liquidation of its affairs; and such judgment, decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or
(j) any
Collateral Document (other than the Intercreditor Agreement) ceases to be in
full force and effect or any Person acting on behalf of the Company shall deny
or disaffirm its obligations under any Collateral Document or the secured
obligations under the Collateral Documents cease to be secured by a perfected
security interest in any portion of the Collateral purported to be pledged
under
the Collateral Documents with respect thereto (other than in accordance with
the
terms thereof).
A
Default
under clause (c) above (other than in the case of any Default under Sections
4.15, 4.16, 4.17 and 5.01, which Defaults shall be Events of Default without
the
notice and without the passage of time specified in this paragraph) is not
an
Event of Default until the
Trustee
notifies the Company, or the Holders of at least 25% in principal amount of
the
outstanding Notes notify the Company and the Trustee of the Default, and the
Company does not cure the Default within 30 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a “Notice of Default.” Such notice shall be given by the Trustee
if so requested by the Holders of at least 25% in principal amount of the Notes
then outstanding.
SECTION
6.02. Acceleration.
If
an
Event of Default (other than an Event of Default specified in Section 6.01(h)
or
(i)) occurs and is continuing, the Trustee may, by notice to the Company, or
the
Holders of at least 25% in principal amount of the Notes then outstanding may,
by written notice to the Company and the Trustee, and the Trustee shall, upon
the request of such Holders, declare the aggregate principal amount of the
Notes
outstanding, together with accrued but unpaid interest thereon to the date
of
payment, to be due and payable and, upon any such declaration, the same shall
become and be due and payable; provided, however, that the Trustee shall be
under no obligation to follow any request of any of the Holders unless such
Holders shall have offered to the Trustee, after request by the Trustee,
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred by it in compliance with such request, order or direction.
If an Event of Default specified in Section 6.01(h) or (i) as to the Company
occurs, all unpaid principal, premium, if any, and accrued interest on the
Notes
then outstanding shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
Upon payment of such principal amount and interest, all of the Company’s
obligations under the Notes and this Indenture, other than obligations under
Section 7.07, shall terminate. The Holders of a majority in principal amount
of
the Notes then outstanding by notice to the Trustee may rescind an acceleration
and its consequences if (i) all existing Events of Default, other than the
non-payment of the principal and interest on the Notes which have become due
solely by such declaration of acceleration, have been cured or waived, (ii)
to
the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid, and (iii) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. No such rescission shall affect any subsequent default
or impair any right consequent thereto. In the event that a declaration of
acceleration under either Section 6.01(d) or 6.01(e) above has occurred and
is
continuing, such declaration of acceleration shall be automatically annulled
if
the Indebtedness that is the subject of such Event of Default has been
discharged or paid or the holders of such Indebtedness shall have rescinded
their declaration of acceleration in respect of such Indebtedness within 60
days
thereafter and no other Event of Default has occurred during such 60-day period
which has not 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 by proceeding at law or in equity to collect the payment of principal
of
or interest on the Notes or to enforce the performance of any provision of
the
Notes or this Indenture and may instruct the Collateral Agent to take any action
under the Collateral Documents as may be required or permitted
thereunder.
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 in exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
SECTION
6.04. Waiver
of
Past Defaults.
Subject
to Sections 6.07 and 9.02, the Holders of a majority in principal amount of
the
outstanding Notes by notice to the Trustee may waive an existing Default or
Event of Default and its consequences, except a Default in the payment of
principal of or interest on any Note as specified in clauses (a) and (b) of
Section 6.01 or in respect of any provision hereof which cannot be modified
or
amended without the consent of the Holder so affected pursuant to Section 9.02.
When a Default or Event of Default is so waived, it shall be deemed cured and
cease to exist.
SECTION
6.05. Control
by Majority.
The
Holders of a majority in principal amount of the outstanding Notes may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it including any
remedies provided for in Section 6.03. Subject to Section 7.01, however, the
Trustee may refuse to follow any direction that conflicts with any law or this
Indenture, that the Trustee determines may be unduly prejudicial to the rights
of another Holder, or that may involve the Trustee in Personal liability;
provided that the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION
6.06. Limitation
on Suits.
A
Holder
may not pursue any remedy with respect to this Indenture or the Notes
unless:
(a) the
Holder gives to the Trustee notice of a continuing Event of
Default;
(b) Holders
of at least 25% in principal amount of the outstanding Notes make a written
request to the Trustee to pursue the remedy;
(c) such
Holders offer to the Trustee reasonable indemnity against any loss, liability
or
expense to be incurred in compliance with such request;
(d) the
Trustee does not comply with the request within 30 days after receipt of the
request and the offer of satisfactory indemnity; and
(e) during
such 30-day period the Holders of a majority in principal amount of the
outstanding Notes do not give the Trustee a direction which, in the opinion
of
the Trustee, is inconsistent with the request.
A
Holder
may not use this Indenture to prejudice the rights of another Holder or to
obtain a preference or priority over such other Holder.
SECTION
6.07. Rights
of
Holders To Receive Payment.
Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on a Note , on or after the respective
due
dates expressed in such Note , 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 except to the extent that the institution
or
prosecution of such suit or the entry of judgment therein would, under
applicable law, result in the surrender, impairment, waiver or loss of the
Lien
of this Indenture and the Collateral Documents upon the Collateral.
SECTION
6.08. Collection
Suit by Trustee.
If
an
Event of Default in payment of principal or interest specified in clause (a)
or
(b) of Section 6.01 occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company or any
other obligor on the Notes for the whole amount of principal and accrued
interest remaining unpaid, together with interest on overdue principal and,
to
the extent that payment of such interest is lawful, interest on overdue
installments of interest, in each case at the rate per annum borne by the Notes
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 may file such proofs of claim and other papers or documents as may
be
necessary or advisable in order to have the claims of the Trustee (including
any
claim for the reasonable compensation, expenses, taxes, disbursements and
advances of the Trustee, its agents and counsel) and the Holders allowed in
any
judicial proceedings relating to the Company or any other obligor upon the
Notes, any of their respective creditors or any of their respective property
and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceedings 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,
taxes, disbursements and advances of the Trustee, its agent and counsel, and
any
other amounts due the Trustee under Section 7.07. 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 thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any
such
proceeding.
SECTION
6.10. Priorities.
Subject
to the provisions of the Collateral Trust Intercreditor Agreement, if the
Trustee collects any money pursuant to this Article Six, it shall pay out the
money in the following order:
First:
to
the Trustee for amounts due under Section 7.07 and then to the Collateral Agent
for amounts due under the Collateral Documents;
Second:
to Holders for interest accrued on the Notes, ratably, without preference or
priority of any kind, according to the amounts due and payable on the Notes
for
interest;
Third:
to
Holders for principal amounts owing under the Notes and other amounts owing
to
the Holders with respect to the Notes, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Notes for principal
and other amounts owing to the Holders with respect to the Notes; and
Fourth:
to the Company or any other obligor on the Notes, as their interests may appear,
or as a court of competent jurisdiction may direct.
The
Trustee, upon prior notice to the Company, may fix a record date and payment
date for any payment to Holders 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 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 pursuant to Section 6.07,
or
a suit by a Holder or Holders of more than 10% in principal amount of the
outstanding Notes.
ARTICLE SEVEN
TRUSTEE
The
Trustee hereby accepts the trust imposed upon it by this Indenture and covenants
and agrees to perform the same, as herein expressed.
SECTION
7.01. Duties
of
Trustee.
(a) If
an
Event of Default has occurred and is continuing and is known to the Trustee,
the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise thereof
as a
prudent Person would exercise or use under the circumstances in the conduct
of
his own affairs.
(b) Except
during the continuance of a Event of Default:
(i) The
Trustee need perform only those duties as are specifically set forth in this
Indenture and no covenants or obligations shall be implied in this Indenture
against the Trustee.
(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 but need not verify the content
thereof.
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own
negligent failure to act, or its own willful misconduct, except
that:
(a) This
paragraph does not limit the effect of paragraph (b) of this Section 7.01 or
7.07.
(b) The
Trustee shall not be liable for any error of judgment made in good faith by
a
Trust Officer, unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts.
(c) The
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it pursuant to
Sections 6.02, 6.04, 6.05 or 6.06.
(d) No
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder or in the exercise of any of its rights or powers if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to
it.
(e) 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), (c), (d)
and
(f) of this Section 7.01.
(f) The
Trustee shall not be liable for interest on any money or assets received by
it
except as the Trustee may agree with the Company in writing. Assets held in
trust by the Trustee need not be segregated from other assets except to the
extent required by law.
(g) Every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions
of
this Section.
SECTION
7.02. Rights
of
Trustee.
Subject
to Section 7.01:
(a)
The Trustee may rely and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, note or other paper or
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 consult with counsel and may
require an Officers’ Certificate or an Opinion of Counsel or both, which shall
conform to Sections 12.04 and 12.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such certificate
or opinion.
(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 that it takes or omits to take in
good faith which it believes to be authorized or within its rights or
powers.
(e) The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, notice,
request, direction, consent, order, bond, debenture, or other paper or document,
but the Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled, upon reasonable notice
to the Company, to examine the books, records, and premises of the Company,
Personally or by agent or attorney.
(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, order or direction of any of
the
Holders pursuant to the provisions of this Indenture, unless such Holders shall
have offered to these Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which may be incurred by it in compliance
with such request, order 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) Except
with respect to Section 4.01, the Trustee shall have no duty to inquire as
to
the performance of the Company’s covenants in Article Four. In addition, the
Trustee shall not be deemed to have knowledge of any Default or Event of Default
except (i) any Event of Default occurring pursuant to Sections 6.01(a), 601(b)
and 4.01 or (ii) any Default or Event of Default of which Trustee shall have
received written notification in the manner set forth in this Indenture or
an
Officer in the Corporate Trust Office of the Trust shall have obtained actual
knowledge. Delivery or reports, information and documents to the Trustee under
Section 4.09 is for informational purposes only and the Trustee’s receipt of the
foregoing shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers’
Certificate).
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, any Subsidiary of the Company
or their respective Affiliates with the same rights it would have if it were
not
Trustee. Any Agent may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION
7.04. Trustee’s
Disclaimer.
The
recitals contained herein and in the Notes shall be taken as statements of
the
Company. The Trustee 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, and it shall not be responsible for any
statement in the Notes other than the Trustee’s certificate of
authentication.
SECTION
7.05. Notice
of
Default.
If
a
Default or an Event of Default occurs and is continuing and if it is known
to
the Trustee, the Trustee shall mail to each Holder, as their names and addresses
appear on the Holder list described in Section 2.05, notice of the uncured
Default or Event of Default within 90 days after the Trustee obtains actual
knowledge that such Default or Event of Default has occurred. Except in the
case
of a Default or an Event of Default in payment of principal of, or interest
on,
any Note, the Trustee may withhold the notice if and so long as a committee
of
its Trust Officers in good faith determines that withholding the notice is
in
the interest of the Holders.
SECTION
7.06. Reports
by Trustee to Holders.
Within
60
days after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall, to the extent that any of the events described
in
TIA § 313(a) occurred within the previous twelve months, but not otherwise, mail
to each Holder a brief report dated as of such May 15 that complies with TIA
§
313(a). The Trustee also shall comply with TIA § 313(b) and 313(c).
A
copy of
each report at the time of its mailing to Holders shall be mailed to the Company
and filed with the SEC and each stock exchange, if any, on which the Notes
are
listed.
The
Company shall promptly notify the Trustee if the Notes become listed on any
securities exchange.
SECTION
7.07. Compensation
and Indemnity.
The
Company shall pay to the Trustee from time to time reasonable compensation
for
its services as the Company and the Trustee may agree in writing. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of
an
express trust. The Company shall reimburse the Trustee upon request for all
tax
obligations imposed on the Trustee related to this Indenture and all reasonable
out-of-pocket expenses incurred or made by
it.
Such expenses shall include the reasonable fees
and expenses of the Trustee’s agents and counsel and other professionals,
experts, consultants and appraisers.
The
Company shall indemnify the Trustee, its affiliates, Subsidiaries, shareholders,
directors, officers, employees, and its agents for, and hold them harmless
against, any loss, liability or expense incurred by them except for such actions
to the extent caused by any gross negligence or bad faith on their part, arising
out of or in connection with the administration of this trust including the
reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of their rights,
powers or duties hereunder or under the Collateral Documents. The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity, but the Trustee’s failure to so notify the Company shall
not affect the Company’s 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
written consent. The Company need not reimburse any expense or indemnify against
any loss or liability to the extent incurred by the Trustee through its gross
negligence, bad faith or willful misconduct.
To
secure
the Company’s payment obligations in this Section 7.07, the Trustee shall have a
lien prior to the Notes on all assets, other property or money held or collected
by the Trustee, in its capacity as Trustee, except assets, other property or
money held in trust to pay principal of or interest on particular Notes. Such
lien shall survive the satisfaction and discharge of this Indenture including
any termination or rejection of this Indenture under any Bankruptcy
Law.
When
the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(8) or (9) occurs, such expenses and the compensation for such
services are intended to constitute expenses of administration under any
Bankruptcy Law.
The
provisions of this Section 7.07 shall survive the termination or satisfaction
and discharge of this Indenture, including any termination or rejection of
this
Indenture under any Bankruptcy Law.
All
references to the Trustee in this Section 7.07 shall include the Trustee acting
as Collateral Agent.
SECTION
7.08. Replacement
of Trustee.
The
Trustee may resign by so notifying the Company. The Holders of a majority in
principal amount of the outstanding Notes may remove the Trustee by so notifying
the Company and the Trustee and may appoint a successor trustee with the
Company’s consent. The Company may remove the Trustee if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent;
(c) a
receiver or other 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 notify each Holder of such event and 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
Notes
may appoint a successor Trustee to replace the successor Trustee appointed
by
the Company.
A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided in Section 7.07, 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. A successor Trustee shall mail notice of its succession to each
Holder.
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
at
least 10% in principal amount of the outstanding Notes may petition any court
of
competent jurisdiction for the appointment of a successor Trustee.
If
the
Trustee fails to comply with Section 7.10, any Holder may petition any court
of
competent jurisdiction for the removal of the Trustee and the appointment of
a
successor Trustee.
Any
resignation or removal of the Trustee pursuant to this Indenture shall be deemed
to be a resignation or removal of the Trustee in its capacity as Collateral
Agent under the Collateral Documents and any appointment of a successor Trustee
pursuant to this Indenture shall be deemed to be appointment of a successor
Collateral Agent under the Collateral Documents and such successor shall assume
all of the obligations of the Trustee in its capacity as Collateral Agent under
the Collateral Documents.
Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION
7.09. Successor
Trustee by Merger, Etc.
If
the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation,
the
resulting, surviving or transferee corporation without any further act shall,
if
such resulting, surviving or transferee corporation is otherwise eligible
hereunder, be the successor Trustee.
SECTION
7.10. Eligibility;
Disqualification.
This
Indenture shall always have a Trustee who satisfies the requirement of TIA
§ 310(a)(1) and 310(a)(5). The Trustee (or in the case of a corporation
included in a bank holding
company
system, the related bank holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. In addition, if the Trustee is a corporation included
in a
bank holding company system, the Trustee, independently of such bank holding
company, shall meet the capital requirements of TIA § 310(a)(2). The
Trustee shall comply with TIA § 310(b); provided, however, that there shall be
excluded from the operation of TIA § 310(b)(1) any indenture or indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in TIA § 310(b)(1) are met.
SECTION
7.11. Preferential
Collection of Claims Against Company.
The
Trustee shall comply with TIA § 311(a), excluding any creditor relationship
listed in TIA § 311(b). A Trustee who has resigned or been removed shall be
subject to TIA § 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE
OF INDENTURE; DEFEASANCE
SECTION
8.01. Termination
of Company’s Obligations.
The
Company may terminate its obligations under the Notes and this Indenture, except
those obligations referred to in the penultimate paragraph of this Section
8.01,
if all Notes previously authenticated and delivered (other than destroyed,
lost
or stolen Notes which have been replaced or paid and Notes for whose payment
money has heretofore been deposited in trust or segregated and held in trust
by
the Company and thereafter repaid to the Company or discharged from such trust)
have been delivered to the Trustee for cancellation and the Company has paid
all
sums payable by it hereunder, or if:
(a) pursuant
to Article Three, the Company shall have given notice to the Trustee and mailed
a notice of redemption to each Holder of the redemption of all of the Notes
under arrangements satisfactory to the Trustee for the giving of such
notice;
(b) the
Company shall have irrevocably deposited or caused to be deposited with the
Trustee or a trustee satisfactory to the Trustee, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the Trustee,
as trust funds in trust solely for the benefit of the Holders for that purpose,
money or direct non-callable obligations of, or non-callable obligations
guaranteed by, the United States of America for the payment of which guarantee
or obligation the full faith and credit of the United States is pledged (“U.S.
Government Obligations”) maturing as to principal and interest in such amounts
and at such times as are sufficient without consideration of any reinvestment
of
such interest, to pay principal of and interest on the outstanding Notes to
redemption as certified to the Trustee by a nationally recognized firm of
independent public accountants designated by the Company; provided that the
Trustee shall have been irrevocably instructed to apply such money or the
proceeds of such U.S. Government Obligations to the payment of said principal
and interest with respect to the Notes; and
(c) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent providing for
the
termination of the Company’s obligation under the Notes and this Indenture have
been complied with.
Notwithstanding
the foregoing paragraph, the Company’s obligations in Sections 2.05, 2.06, 2.07,
2.08, 4.01, 4.02, 7.07, 7.08, 8.04 and 8.05 shall survive until the Notes are
no
longer outstanding. After the Notes are no longer outstanding, the Company’s
obligations in Sections 7.07, 8.04 and 8.05 shall survive.
After
such delivery or irrevocable deposit the Trustee upon request shall acknowledge
in writing the discharge of the Company’s obligations under the Notes and this
Indenture except for those surviving obligations specified above.
SECTION
8.02. Legal
Defeasance and Covenant Defeasance.
(a) The
Company may, at its option by Board Resolution, at any time, with respect to
the
Notes, elect to have either paragraph (b) or paragraph (c) below be applied
to
the outstanding Notes upon compliance with the conditions set forth in paragraph
(d).
(b) Upon
the
Company’s exercise under paragraph (a) of the option applicable to this
paragraph (b), the Company shall be deemed to have been released and discharged
from its obligations with respect to the outstanding Notes on the date the
conditions set forth below are satisfied (hereinafter, “legal defeasance”). For
this purpose, such 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 paragraph (e) below and the other Sections of and matters under
this
Indenture referred to in (i) and (ii) below, and to have satisfied all its
other
obligations under such Notes and this Indenture insofar as such Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights
of
Holders of outstanding Notes to receive solely from the trust fund described
in
paragraph (d) below and as more fully set forth in such paragraph, payments
in
respect of the principal of and interest on such Notes when such payments are
due, (ii) the Company’s obligations with respect to such Notes under Sections
2.05, 2.06, 2.07, 2.08, 4.02, 7.07, 7.08, 8.04 and 8.05, (iii) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (iv) this
Section 8.02. Subject to compliance with this Section 8.02, the Company may
exercise its option under this paragraph (b) notwithstanding the prior exercise
of its option under paragraph (c) below with respect to the Notes.
(c) Upon
the
Company’s exercise under paragraph (a) of the option applicable to this
paragraph (c), the Company shall be released and discharged from its obligations
under any covenant contained in Article Five and in Sections 4.03, 4.07, 4.09
and 4.11 through 4.22 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 to be not “outstanding”
for the purpose of any direction, waiver, consent or declaration or act of
Holders (and the consequences of any thereof) in connection with such covenants,
but shall continue to
be
deemed
“outstanding” for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant
or
by reason of any reference in any such covenant to any other provision herein
or
in any other document and such omission to comply shall not constitute a Default
or an Event of Default under Section 6.01, but, except as specified above,
the
remainder of this Indenture and such Notes shall be unaffected thereby.
(d) The
following shall be the conditions to application of either paragraph (b) or
paragraph (c) above to the outstanding Notes:
(i) the
Company shall irrevocably have deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Notes, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal of
and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount,
or
(C) a combination thereof, sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge
principal of, premium, if any, and interest on the outstanding Notes on the
Maturity Date of such principal or installment of principal or interest in
accordance with the terms of this Indenture and of such Notes; provided,
however, that the Trustee (or other qualifying trustee) shall have received
an
irrevocable written order from the Company instructing the Trustee (or other
qualifying trustee) to apply such money or the proceeds of such U.S. Government
Obligations to said payments with respect to the Notes;
(ii) no
Default or Event of Default or event which with notice or lapse of time or
both
would become a Default or an Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
Sections 6.01(8) and (9) are concerned, at any time during the period ending
on
the 91st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such period);
(iii) such
legal defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a Default or Event of Default under, this Indenture
or any other agreement or instrument to which the Company is a party or by
which
it is bound;
(iv) in
the
case of an election under paragraph (b) above, the Company shall have delivered
to the Trustee an Opinion of Counsel stating that (x) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling
or
(y) since the date of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon
such opinion 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;
(v) in
the
case of an election under paragraph (c) above, the Company shall have delivered
to the Trustee an Opinion of Counsel to the effect 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;
(vi) in
the
case of an election under either paragraph (b) or (c) above, an Opinion of
Counsel to the effect that, (x) the trust funds will not be subject to any
rights of any other holders of Indebtedness of the Company, and (y) after the
91st day following the deposit, the trust funds will not be subject to the
effect of any applicable Bankruptcy Law; provided, however, that if a court
were
to rule under any such law in any case or proceeding that the trust funds
remained property of the Company, no opinion needs to be given as to the effect
of such laws on the trust funds except the following: (A) assuming such trust
funds remained in the Trustee’s possession prior to such court ruling to the
extent not paid to Holders of Notes, the Trustee will hold, for the benefit
of
the Holders of Notes, a valid and enforceable security interest in such trust
funds that is not avoidable in bankruptcy or otherwise, subject only to
principles of equitable subordination, (B) the Holders of Notes will be entitled
to receive adequate protection of their interests in such trust funds if such
trust funds are used, and (C) no property, rights in property or other interests
granted to the Trustee or the Holders of Notes in exchange for or with respect
to any of such funds will be subject to any prior rights of any other Person,
subject only to prior Liens granted under Section 364 of Title 11 of the U.S.
Bankruptcy Code (or any section of any other Bankruptcy Law having the same
effect), but still subject to the foregoing clause (B); and
(vii) the
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that (A) all conditions precedent provided
for
relating to either the legal defeasance under paragraph (b) above or the
covenant defeasance under paragraph (c) above, as the case may be, have been
complied with and (B) if any other Indebtedness of the Company shall then be
outstanding, such legal defeasance or covenant defeasance will not violate
the
provisions of the agreements or instruments evidencing such Indebtedness.
(e) All
money
and U.S. Government Obligations (including the proceeds thereof) deposited
with
the Trustee (or other qualifying trustee, collectively for purposes of this
paragraph (e), the “Trustee”) pursuant to paragraph (d) above in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (other than the Company or any
of
its Affiliates) as the Trustee may determine, to the Holders of such Notes
of
all sums due and to become due thereon in respect of principal 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 U.S. Government Obligations deposited
pursuant to paragraph (d) above 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 Section 8.02 to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company from time to time upon the request, in writing, by the
Company any money or U.S. Government Obligations held by it as provided in
paragraph (d) above which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent legal defeasance or covenant
defeasance.
SECTION
8.03. Application
of Trust Money.
The
Trustee shall hold in trust money or U.S. Government Obligations deposited
with
it pursuant to Sections 8.01 and 8.02, and shall apply the deposited money
and
the money from U.S. Government Obligations in accordance with this Indenture
to
the payment of principal of, premium, if any, and interest on the
Notes.
SECTION
8.04. Repayment
to Company.
Subject
to Sections 7.07, 8.01 and 8.02, the Trustee shall promptly pay to the Company,
upon receipt by the Trustee of an Officers’ Certificate, any excess money,
determined in accordance with Sections 8.02(d)(i) and (e), held by it at any
time. The Trustee and the Paying Agent shall pay to the Company upon receipt
by
the Trustee or the Paying Agent, as the case may be, of an Officers’
Certificate, any money held by it for the payment of principal or interest
that
remains unclaimed for two years; provided, however, that the Trustee and the
Paying Agent before being required to make any payment may, but need not, at
the
expense of the Company, cause to be published once in a newspaper of general
circulation in The City of New York or mail to each Holder entitled to such
money notice that such money remains unclaimed and that after a date specified
therein, which shall be at least 30 days from the date of such publication
or
mailing, any unclaimed balance of such money then remaining will be repaid
to
the Company. After payment to the Company, Holders entitled to money must look
solely to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person, and all liability of the
Trustee or Paying Agent with respect to such money shall thereupon cease.
SECTION
8.05. Reinstatement.
If
the
Trustee or Paying Agent is unable to apply any money or U.S. Government
Obligations in accordance with this Indenture by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then and
only
then the Company’s obligations under this Indenture and the Notes shall be
revived and reinstated as though no deposit had been made pursuant to this
Indenture until such time as the Trustee is permitted to apply all such money
or
U.S. Government
Obligations in accordance with this Indenture; provided, however, that if
the
Company
has made any payment of interest on or principal of any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE
NINE
AMENDMENTS,
SUPPLEMENTS AND WAIVERS
SECTION
9.01. Without
Consent of Holders.
The
Company, when authorized by a Board Resolution, and the Trustee, together,
may
amend or supplement this Indenture or the Notes without notice to or consent
of
any Holder:
(a) to
cure
any ambiguity, defect or inconsistency; provided that such amendment or
supplement does not adversely affect the rights of any Holder;
(b) to
comply
with Article Five;
(c) to
provide for uncertificated Notes in addition to or in place of certificated
Notes;
(d) to
make
any other change that does not materially adversely affect the rights of any
Holders hereunder or under the Collateral Documents;
(e) to
comply
with any requirements of the SEC in connection with the qualification of this
Indenture under the TIA; or
(f) to
provide for future guarantees as provided by Section 4.19; provided that in
any
such case the Company has delivered to the Trustee an Opinion of Counsel and
an
Officers’ Certificate, each stating that such amendment or supplement complies
with the provisions of this Section 9.01.
SECTION
9.02. With
Consent of Holders.
Subject
to Section 6.07, the Company, when authorized by a Board Resolution, and the
Trustee, together, with the written consent of the Holder or Holders of at
least
a majority in aggregate principal amount of the outstanding Notes, may amend
or
supplement this Indenture or the Notes, without notice to any other Holders.
Subject to Section 6.07, the Holder or Holders of a majority in aggregate
principal amount of the outstanding Notes may waive compliance by the Company
with any provision of this Indenture or the Notes without notice to any other
Holder. However, without the consent of each Holder affected, no amendment,
supplement or waiver, including a waiver pursuant to Section 6.04,
may:
(a) reduce
the principal amount of Notes whose Holders must consent to an amendment,
supplement or waiver of any provision of this Indenture, the Notes or the
Collateral Documents;
(b) reduce
the rate of, or extend the time for payment of, interest, including defaulted
interest, on any Note ;
(c) reduce
the principal amount of any Note or any premium thereon;
(d) change
the Maturity Date of any Note , or alter the redemption provisions or the
repurchase provisions in this Indenture, the Notes or the Collateral Documents
in a manner adverse to any Holder;
(e) waive
a
default in the payment of the principal of, interest on, or redemption payment
or repurchase payment required hereunder with respect to, any Note , including
without limitation, a failure to make payment when required upon a Change of
Control or after an Asset Sale;
(f) make
any
changes in any provisions relating to waivers of defaults, the ability of the
Holders to enforce their rights under this Indenture, the Notes, the Collateral
Documents or this Section 9.02;
(g) make
the
principal of, or the interest on any Note payable in money other than as
provided for in this Indenture and the Notes as in effect on the date
hereof;
(h) affect
the ranking of the Notes in a manner adverse to the Holders or release all
or
substantially all of the Collateral; or after the Company’s obligation to
purchase the Notes arises thereunder, amend, modify or change the obligation
of
the Company to make and consummate a Change of Control Offer in the event of
a
Change of Control or an Asset Sale Offer in the event of an Asset Sale or waive
any default in the performance thereof or modify any of the provisions or
definitions with respect to any such offers.
In
addition to the foregoing, except as expressly permitted by this Indenture
(including in Sections 10.03, 10.04 and 10.05), no portion of the Collateral
may
be released without the consent of the Holders of at least 75% in aggregate
principal amount of the then outstanding Notes.
It
shall
not be necessary for the consent of the Holders under this Section to approve
the particular form of any proposed amendment, supplement or waiver, but it
shall be sufficient if such consent approves the substance thereof.
After
an
amendment, supplement or waiver under this Section 9.02 becomes effective,
the
Company shall mail to the Holders 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 supplemental indenture.
SECTION
9.03. Compliance
with TIA.
From
the
date on which the Indenture is qualified under the TIA, every amendment, waiver
or supplement of this Indenture or the Notes shall comply with the TIA as then
in effect.
SECTION
9.04. Revocation
and Effect of Consents.
Until
an
amendment, waiver or supplement becomes effective, a consent to it by a Holder
is a continuing consent by the Holder 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 or subsequent Holder may revoke the consent as to his Note or portion
of
his Note by notice to the Trustee or the Company received before the date on
which the Trustee receives an Officers’ Certificate certifying that the Holders
of the requisite principal amount of Notes have consented (and not theretofore
revoked such consent) to the amendment, supplement or waiver. Notwithstanding
the above, nothing in this paragraph shall impair the right of any Holder under
§ 316(b) of the TIA.
The
Company may, but shall not be obligated to, fix a record date for the purpose
of
determining the Holders entitled to consent to any amendment, supplement or
waiver. If a record date is fixed, then notwithstanding the last sentence of
the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to revoke any consent previously given, whether or not such Persons
continue to be Holders after such record date. No such consent shall be valid
or
effective for more than 90 days after such record date.
After
an
amendment, supplement or waiver becomes effective, it shall bind every Holder,
unless it makes a change described in any of clauses (1) through (9) of Section
9.02, in which case, the amendment, supplement or waiver shall bind only each
Holder of a Note who has consented to it and every subsequent Holder of a Note
or portion of a Note that evidences the same debt as the consenting Holder’s
Note .
SECTION
9.05. Notation
on or Exchange of Notes.
If
an
amendment, supplement or waiver changes the terms of a Note , the Trustee may
require the Holder of the Note to deliver it to the Trustee. The Trustee may
place an appropriate notation on the Note about the changed terms and return
it
to the Holder. Alternatively, if the Company or the Trustee so determines,
the
Company in exchange for the Note shall issue and the Trustee shall authenticate
a new Note that reflects the changed terms. 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 execute any amendment, supplement or waiver authorized pursuant
to
this Article Nine; provided that the Trustee may, but shall not be obligated
to,
execute any such amendment, supplement or waiver which affects the Trustee’s own
rights, duties or immunities under this Indenture. The Trustee shall be entitled
to receive, and shall be
fully
protected in relying upon, an Opinion of Counsel and an Officers’ Certificate
each stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article Nine is authorized or permitted by this
Indenture.
ARTICLE
TEN
COLLATERAL
DOCUMENTS
SECTION
10.01. Collateral
and Collateral Documents.
(a) In
order
to secure the due and punctual payment of principal of and interest and premium,
if any, on the Notes when and as the same shall be due and payable, whether
on
an Interest Payment Date, at maturity, by acceleration, repurchase, redemption
or otherwise, and interest on the overdue principal of , premium, if any, and
interest (to the extent permitted by law), if any, on the Notes and performance
of all other obligations of the Company to the Holders or the Trustee under
this
Indenture and the Notes, the Company and the Collateral Agent have
simultaneously with the execution of this Indenture entered into the Collateral
Documents, pursuant to which the Company has granted to the Collateral Agent
for
the benefit of the Trustee and the Holders a first priority Lien on and security
interest in the Collateral and a second priority security interest on the Credit
Agreement Collateral described in clause (a) of the definition thereof. The
Collateral Agent and the Company hereby agree that the Collateral Agent holds
the Collateral as a secured party or mortgagee, as the case may be, in trust
for
the benefit of the Trustee, in its capacity as trustee, and for the ratable
benefit of the Holders pursuant to the terms of the Collateral Documents. The
Collateral Agent is authorized and directed to enter into each of the Collateral
Documents.
(b) Each
Holder, by accepting a Note , consents and agrees to all of the terms and
provisions of the Collateral Documents, as the same may be in effect from time
to time or may be amended from time to time in accordance with the provisions
of
the Collateral Documents and this Indenture, and authorizes and directs the
Collateral Agent to act as mortgagee or secured party with respect
thereto.
(c) As
set
forth in and governed by the Collateral Documents, as among the Holders of
Notes, the Collateral as now or hereafter constituted shall be held for the
equal and ratable benefit of the Holders of the Notes without preference,
priority or distinction of any thereof over any other by reason of difference
in
time of issuance, sale or otherwise, as security for the Notes.
SECTION
10.02. Recording;
Priority; Opinions, Etc.
(a) The
Company shall at its sole cost and expense perform any and all acts and execute
any and all documents (including the execution, amendment or supplementation
of
any financing statement and continuation statement or other statement) for
filing under the provisions of the UCC and the rules and regulations thereunder,
or any other statute, rule or regulation of any applicable federal, state or
local jurisdiction, including any filings in local real estate land record
offices, which are necessary or advisable and shall do such other acts and
execute such other documents as may be required under any of the Collateral
Documents, from
time
to
time, in order to grant, perfect and maintain in favor of the Collateral Agent
for the benefit of the Trustee and the Holders a valid and perfected Lien on
the
Collateral with the priority set forth in Section 10.01(a), subject only to
the
Liens permitted by the Collateral Documents and to fully preserve and protect
the rights of the Trustee and the Holders under this Indenture.
The
Company shall from time to time promptly pay and satisfy all mortgage and
financing and continuation statement recording and/or filing fees, charges
and
taxes relating to this Indenture and the Collateral Documents, any amendments
thereto and any other instruments of further assurance. Without limiting the
generality of the foregoing covenant, in the event at any time the Collateral
Agent or the Trustee shall determine that additional mortgage recording,
transfer or similar taxes are required to be paid to perfect or continue any
Lien on any Collateral, the Company shall pay such taxes promptly upon demand
by
the Collateral Agent or the Trustee.
(b) The
Company shall, with respect to (i) below, promptly after the initial issuance
of
the Notes, and with respect to (ii) below, upon qualification of this Indenture
under the TIA, furnish to the Trustee:
(i) Opinion(s)
of Counsel either (a) to the effect that, in the opinion of such counsel, this
Indenture and the grant of a security interest in the Collateral intended to
be
made by the Collateral Documents and all other instruments of further assurance,
including financing statements, have been properly recorded and filed to the
extent necessary to perfect the Lien on the Collateral created by the Collateral
Documents and reciting the details of such action, and stating that as to the
Liens created pursuant to the Collateral Documents, such recordings and filings
are the only recordings and filings necessary to give notice thereof and that
no
re-recordings or refilings are necessary to maintain such notice (other than
as
stated in such opinion), or (b) to the effect that, in the opinion of such
counsel, no such action is necessary to perfect such Lien;
(ii) on
May 1
in each year beginning with May 1, 2007, an Opinion of Counsel, dated as of
such
date, either (a) to the effect that, in the opinion of such counsel, such action
has been taken with respect to the recordings, registerings, filings,
re-recordings, re-registerings and refilings of all financing statements,
continuation statements or other instruments of further assurance as is
necessary to maintain the Lien of each of the Collateral Documents and reciting
with respect to such Liens the details of such action or referencing prior
Opinions of Counsel in which such details are given, and stating that all
financing statements and continuation statements have been executed and filed
that are necessary fully to preserve and protect the rights of the Holders
and
the Trustee hereunder and under each of the Collateral Documents with respect
to
the Liens, or (b) to the effect that, in the opinion of such counsel, no such
action is necessary to maintain such Liens.
SECTION
10.03. Release
of Collateral.
Except
as
otherwise permitted by Sections 10.04 and 10.05, the Collateral Agent shall
not
release Collateral from the Lien of the Collateral Documents unless such release
is in accordance with the provisions of this Section 10.03 and of the Collateral
Documents. To the
extent
applicable, the Company shall cause TIA §
314(d) relating to the release of property or Liens to be complied
with.
(a) Satisfaction
and Discharge; Defeasance. The Company shall be entitled to obtain a full
release of all of the Collateral from the Lien of this Indenture and the
Collateral Documents upon compliance with all of the conditions precedent for
satisfaction and discharge of this Indenture set forth in Section 8.01 or for
defeasance pursuant to Section 8.02. Upon delivery by the Company to the Trustee
and to the Collateral Agent of an Officers’ Certificate and an Opinion of
Counsel, each to the effect that all of the conditions precedent have been
complied with (which may be the same Officers’ Certificate and Opinion of
Counsel required by Article Eight), the Trustee shall take all necessary action,
at the request and expense of the Company, to release and reconvey to the
Company all of the Collateral, and shall deliver such Collateral in its
possession to the Company including the execution and delivery of releases
or
waivers whenever necessary.
(b) Sales
of
Collateral Permitted by Section 4.16. The Company shall be entitled to obtain
a
release of all or any part of the Collateral (other than Trust Moneys) (the
“Released Assets”) subject to an Asset Sale upon compliance with the condition
precedent that the Company shall have delivered to the Trustee and to the
Collateral Agent the following:
(i) Release
Notice. A notice (each, an “Asset Sale Release Notice”), which shall (A) refer
to this Section 10.03, (B) attach all the documents referred to below, (C)
describe with particularity the Released Asset, (D) specify the value of such
Released Asset on a date within 60 days of the Asset Sale Release Notice (the
“Valuation Date”), (E) certify that the purchase price received is equal to the
Fair Market Value of the Released Asset as of the date of such release, (F)
state that the Released Asset will not interfere with or impede the Trustee’s
ability to realize the value of the remaining Collateral and will not impair
the
maintenance and operation of the remaining Collateral, (G) confirm the sale
of,
or an agreement to sell, such Released Interest in a bona fide sale to a Person
that is not an Affiliate of the Company or, in the event that such sale is
to an
Affiliate, confirm that such sale is being made in accordance with Section
4.11,
(H) be accompanied by a counterpart of the instruments proposed to give effect
to the release fully executed and acknowledged (if applicable) by all parties
thereto other than the Collateral Agent;
(ii) Officers’
Certificate and Opinion of Counsel. An Officers’ Certificate and an Opinion of
Counsel, each stating that (A) such Asset Sale covers only the Released Asset
and complies with the terms and conditions of an Asset Sale pursuant to Section
4.16, (B) all Net Cash Proceeds from the sale of the Released Asset will be
applied pursuant to Section 4.16, (C) there is no Default or Event of Default
in
effect or continuing on the date thereof, (D) the release of the Released Asset
will not result in a Default or Event of Default and (E) all conditions
precedent to such release have been complied with;
(iii) Regarding
Real Property. If the Released Asset is only a portion of a discrete parcel
of
Real Property, evidence that a title company shall have committed to issue
an
endorsement to the title insurance policy relating to the affected
Mortgaged
Property
confirming that after such release, the Lien of the applicable Mortgage
continues unimpaired as a perfected Lien having the priority set forth in
Section 10.01(a) upon the remaining Mortgaged Property subject only to Prior
Liens;
(iv) Proceeds
of Asset Sale. The Net Cash Proceeds and other non-cash consideration received
from the Asset Sale required to be delivered to the Trustee pursuant to Section
4.16; and
(v) Other
Documents. Upon qualification of this Indenture under the TIA, all documentation
required by TIA § 314(d).
(c) Release
of Real Property Permitted by Section 4.23. The Company shall be entitled to
obtain a release of any part of the Collateral constituting Released Real
Property upon compliance with the condition precedent that the Company shall
have delivered to the Trustee and to the Collateral Agent the
following:
(i) Release
Notice. A notice (each, a “Real Property Release Notice”) which shall (A) refer
to this Section 10.03, (B) attach all the documents referred to below, (C)
describe with particularity the Released Real Property, (D) specify the value
of
such Released Real Property on a date within 60 days of the Real Property
Release Notice (the “Real Property Valuation Date”), (E) state that the Released
Real Property will not interfere with or impede the Trustee’s ability to realize
the value of the remaining Collateral, is not necessary for the proper and
efficient operation of the Mortgaged Property or for the compliance by the
Mortgaged Property with any applicable law, code or ordinance, including any
Environmental Law, and is not an integral part of the Company’s operations as
conducted at the Mortgaged Property on the Issue Date, and (F) be accompanied
by
a counterpart of the instruments proposed to give effect to the release fully
executed and acknowledged (if applicable) by all parties thereto other than
the
Collateral Agent;
(ii) Officers’
Certificate and Opinion of Counsel. An Officers’ Certificate and an Opinion of
Counsel, each stating that (A) there is no Default or Event of Default in effect
or continuing on the date thereof, (B) the Real Property to be released
constitutes Released Real Property, (C) the release of the Released Real
Property will not result in a Default or Event to Default and (D) all conditions
precedent to such release have been complied with;
(iii) Title
Insurance. Evidence that a title company shall have committed to issue an
endorsement to the title insurance policy relating to the affected Mortgaged
Property confirming that after such release, the Lien of the applicable Mortgage
continues unimpaired as a perfected Lien with the priority set forth in Section
10.01(a) hereof upon the remaining Mortgaged Property, subject only to Prior
Liens; and
(iv) Other
Documents. Upon qualification of this Indenture under the TIA, all documentation
required by TIA § 314(d).
Upon
compliance with the conditions set forth in (b) or (c) above, and the delivery
by the Company of such other documents that the Trustee or the Collateral Agent
may
reasonably
require, the Collateral Agent shall
execute, acknowledge (if applicable) and deliver to the Company such counterpart
within 10 Business Days after receipt by the Trustee of an Asset Sale Release
Notice or Real Property Release Notice, as applicable, and the satisfaction
of
the applicable requirements of this Section 10.03.
At
any
time when a Default or an Event of Default shall have occurred and be
continuing, no release of Collateral pursuant to the provisions of this
Indenture or the Collateral Documents shall be effective as against the Holders
of the Notes.
SECTION
10.04. Disposition
of Collateral Without Release.
(a) So
long
as no Default or Event of Default shall have occurred and be continuing, the
Company may, without any release or consent by the Collateral Agent or the
Trustee, sell or otherwise dispose of any machinery, equipment, furniture,
apparatus, tools or implements or other similar property which at such time
is
subject to the Lien of the Collateral Documents, which may have become worn
out
or obsolete, not exceeding individually, in Fair Market Value, $25,000.00,
subject in all cases to the requirements of and restrictions contained in the
TIA.
(b) In
the
event that the Company has sold, exchanged, or otherwise disposed of or proposes
to sell, exchange or otherwise dispose of any portion of the Collateral which
under the provisions of this Section 10.04 may be sold, exchanged or otherwise
disposed of by the Company without any release or consent of the Collateral
Agent or the Trustee, and the Company requests the Collateral Agent or the
Trustee to furnish a written disclaimer, release or quitclaim of any interest
in
such property under any of the Collateral Documents, the Collateral Agent shall
promptly execute (or, if so requested by the Company, shall promptly instruct
the Trustee to execute) such an instrument upon delivery to the Trustee of
(i)
an Officers’ Certificate by the Company reciting the sale, exchange or other
disposition made or proposed to be made and describing in reasonable detail
the
property affected thereby, and stating and demonstrating that such property
is
property which by the provisions of this Section 10.04 may be sold, exchanged
or
otherwise disposed of or dealt with by the Company without any release or
consent of the Collateral Agent or the Trustee and (ii) an Opinion of
Counsel stating that the sale, exchange or other disposition made or proposed
to
be made was duly made by the Company in conformity with Section 10.04(a) and
that the execution of such written disclaimer, release or quitclaim is
appropriate to confirm the propriety of such sale, exchange or other disposition
under this Section 10.04. Notwithstanding the preceding sentence, all purchasers
and grantees of any property or rights purporting to be released herefrom shall
be entitled to rely upon any release executed by the Collateral Agent or the
Trustee hereunder as sufficient for the purposes of this Indenture.
SECTION
10.05. Eminent
Domain and Other Governmental Takings.
Subject
to the provisions of the Collateral Documents, upon the occurrence of a Taking
or should any of the Collateral be sold pursuant to the exercise by the United
States of America
or any State, municipality or other governmental authority of any right which
any of them may then have to purchase, or to designate a purchaser or to order
a
sale of, all or any part
of
the Collateral, the Trustee shall release the
property subject to such Taking or purchase, but only upon receipt by the
Trustee of the following:
(a) an
Officers’ Certificate stating that a Taking has occurred with respect to such
property and the amount of the Net Award therefor, or that such property has
been sold pursuant to a right vested in the United States of America or a state,
municipality or other governmental authority to purchase, or to designate a
purchaser or order a sale of such property and the amount of the proceeds of
such sale, and that all conditions precedent herein provided for relating to
such release have been complied with;
(b) any
Net
Award, to be held as Trust Moneys subject to the disposition thereof pursuant
to
Article Eleven and the applicable Collateral Documents; provided, however,
that
in lieu of all or any part of such Net Award, the Company shall have the right
to deliver to the Trustee a certificate of the trustee, mortgagee or other
holder of a Prior Lien on all or any part of the property to be released,
stating that such Net Award, or a specified portion thereof, has been deposited
with such trustee, mortgagee or other holder pursuant to the requirements of
such Prior Lien, in which case the balance of the award, if any, shall be
delivered to the Trustee; and
(c) an
Opinion of Counsel substantially to the effect:
(i) that
a
Taking has occurred with respect to such property or such property has been
sold
pursuant to the exercise of a right vested in the United States of America
or a
State, municipality or other governmental authority to purchase, or to designate
a purchaser or order a sale of, such property;
(ii) in
the
case of any Taking, that the Net Award for the property so taken has become
final or that the Board of Directors of the Company has determined that an
appeal from such award is not advisable in the interests of the Company or
the
Holders of the Notes;
(iii) in
the
case of any such sale, that the amount of the proceeds of the property so sold
is not less than the amount to which the Company is legally entitled under
the
terms of such right to purchase or designate a purchaser, or under the order
or
orders directing such sale, as the case may be;
(iv) in
the
event that, pursuant to Section 10.05(b), the Net Award for such property or
the
proceeds of such sale, or a specified portion thereof, shall be certified to
have been deposited with the trustee, mortgagee or other holder of a Prior
Lien,
that the property to be released, or a specified portion thereof, is or
immediately before such Taking or purchase was subject to such Prior Lien,
and
that such deposit is required by such Prior Lien; and
(v) that
the
instrument or the instruments and the Net Award or proceeds of such sale which
have been or are therewith delivered to and deposited with the Trustee conform
to the requirements of this Indenture and any of the Collateral Documents and
that, upon the basis of such application, the Collateral Agent and the
Trustee
are permitted by the terms hereof and of the Collateral Documents to execute
and
deliver
the release requested, and that all
conditions precedent herein provided for relating to such release have been
complied with.
In
any
proceedings for the Taking or purchase or sale of any part of the Collateral,
by
eminent domain or by virtue of any such right to purchase or designate a
purchaser or to order a sale, the Trustee may be represented by counsel who
may
be counsel for the Company. Subject to the provisions of the Collateral
Documents, all cash or Cash Equivalents received by the Trustee pursuant to
this
Section 10.05 shall be held by the Trustee as Trust Moneys under Article Eleven
subject to application as therein provided. Subject to the provisions of the
Collateral Documents, all purchase money and other obligations received by
the
Trustee pursuant to this Section 10.05 shall be held by the Trustee as
Collateral subject to application as provided in Section 10.13.
SECTION
10.06. Trust
Indenture Act Requirements.
The
release of any Collateral, whether pursuant to any provision of this Article
Ten
or Article Eleven, from any of the Collateral Documents or the release of,
in
whole or in part, the Liens created by any of the Collateral Documents, will
not
be deemed to impair the Lien of the Collateral Documents in contravention of
the
provisions hereof if and to the extent the Collateral or Liens are released
pursuant to the applicable Collateral Documents and pursuant to the terms
hereof. The Trustee and each of the Holders acknowledge that a release of
Collateral or Liens strictly in accordance with the terms of the Collateral
Documents and the terms hereof will not be deemed for any purpose to be an
impairment of the Liens created pursuant to the Collateral Documents in
contravention of the terms of this Indenture. Without limitation, the Company
and each other obligor on the Notes shall cause TIA § 314(d) relating to the
release of property or securities from the Liens of each hereof and of the
Collateral Documents to be complied with. Any certificate or opinion required
by
TIA § 314(d) may be made by an officer of the Company, except in cases which TIA
§ 314(d) requires that such certificate or opinion be made by an independent
Person.
SECTION
10.07. Suits
To
Protect Collateral.
Subject
to the provisions of the Collateral Documents, the Trustee shall have power
to
institute and to maintain such suits and proceedings as it may deem expedient
to
prevent any impairment of the Collateral by any acts which may be unlawful
or in
violation of any of the Collateral Documents or this Indenture, and such suits
and proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders in the Collateral (including power
to
institute and maintain suits or proceedings to restrain the enforcement of
or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the Collateral
or be
prejudicial to the interests of the Holders or the Trustee).
SECTION
10.08. Purchaser
Protected.
In
no
event shall any purchaser in good faith of any property purported to be released
hereunder be bound to ascertain the authority of the Collateral Agent or the
Trustee to
execute
the release or to inquire as to the
satisfaction of any conditions required by the provisions hereof for the
exercise of such authority or to see to the application of any consideration
given by such purchaser or other transferee; nor shall any purchaser or other
transferee of any property or rights permitted by this Article Ten to be sold
be
under obligation to ascertain or inquire into the authority of the Company
to
make any such sale or other transfer.
SECTION
10.09. Powers
Exercisable by Receiver or Trustee.
In
case
the Collateral shall be in the possession of a receiver or trustee, lawfully
appointed, the powers conferred in this Article Ten upon the Company with
respect to the release, sale or other disposition of such property may be
exercised by such receiver or trustee, and an instrument signed by such receiver
or trustee shall be deemed the equivalent of any similar instrument of the
Company or of any officer or officers thereof required by the provisions of
this
Article Ten.
SECTION
10.10. Determinations
Relating to Collateral.
In
the
event (i) the Trustee or the Collateral Agent shall receive any written request
from the Company under any Collateral Document for consent or approval with
respect to any matter or thing relating to any Collateral or the Company’s
obligations with respect thereto (including the determination as to whether
any
portion of the Collateral constitutes Released Collateral) or (ii) there shall
be due to or from the Trustee or the Collateral Agent under the provisions
of
any Collateral Document any performance or the delivery of any instrument or
(iii) the Trustee or the Collateral Agent shall become aware of any
nonperformance by the Company of any covenant or any breach of any
representation or warranty of the Company set forth in any Collateral Document,
then, in each such event, the Trustee or the Collateral Agent, as applicable,
shall be entitled to hire experts, consultants, agents and attorneys to advise
the Trustee on the manner in which the Trustee should respond to such request
or
render any requested performance or response to such nonperformance or breach.
The Trustee shall be fully protected in the taking of any action recommended
or
approved by any such expert, consultant, agent or attorney or agreed to by
a
majority of Holders pursuant to Section 6.05.
SECTION
10.11. Form
and
Sufficiency of Release.
In
the
event that the Company has sold, exchanged, or otherwise disposed of or propose
to sell, exchange or otherwise dispose of any portion of the Collateral which
under the provisions of Sections 10.03 and 10.05 may be sold, exchanged or
otherwise disposed of by the Company, and the Company requests the Trustee
or
the Collateral Agent to furnish a written disclaimer, release or quitclaim
of
any interest in such property under any of the Collateral Documents, the
Collateral Agent shall promptly execute (or, if so requested by the Company,
shall promptly instruct the Trustee to execute) such an instrument promptly
after satisfaction of the conditions set forth herein for delivery of such
release. Notwithstanding the preceding sentence, all purchasers and grantees
of
any property or rights purporting to be released herefrom shall
be
entitled to rely upon any release executed by the Trustee hereunder as
sufficient for the purposes of this Indenture and as constituting a good and
valid release of the property therein described from the Lien of this Indenture
and the Collateral Documents.
SECTION
10.12. Possession
and Use of Collateral.
Subject
to and in accordance with the provisions of this Indenture and the Collateral
Documents, so long as no Default or Event of Default shall have occurred and
be
continuing, the Company shall have the right to remain in possession and retain
exclusive control of the Collateral, to operate, manage, develop, use and enjoy
the Collateral and to collect, receive, use, invest and dispose of the
reversions, remainders, rates, interest, rents, issues, profits, revenues,
proceeds and other income thereof (other than Trust Moneys).
SECTION
10.13. Disposition
of Obligations Received.
All
purchase money or other obligations received by the Trustee under this Article
Ten shall be held by the Trustee, as a part of the Collateral. Upon payment
in
cash or Cash Equivalents by or on behalf of the Company or the obligor thereof
to the Trustee of the entire unpaid principal amount of any such obligation,
to
the extent not constituting Net Cash Proceeds from an Asset Sale which may
possibly be required, through the passage of time or otherwise, to be used
to
purchase Notes pursuant to Section 4.16, the Trustee shall promptly release
and
transfer such obligation and any mortgage securing the same upon receipt of
any
documentation that the Trustee may reasonably require. Any cash or Cash
Equivalents received by the Trustee in respect of the principal of any such
obligations shall be held by the Trustee as Trust Moneys under Article Eleven
subject to application as therein provided. Unless and until the Notes are
accelerated pursuant to Section 6.02, all interest and other income on any
such
obligations, when received by the Trustee, shall be paid to the Company from
time to time in accordance with Section 11.07. If the Notes have been
accelerated pursuant to Section 6.02, any such interest or other income not
theretofore paid, when collected by the Trustee, shall be applied by the
Trustee, as the case may be, in accordance with Section 6.10.
SECTION
10.14. Release
upon Termination of the Company’s Obligations.
In
the
event that the Company delivers an Officers’ Certificate certifying that the
provisions of Sections 8.01 or 8.02 have been complied with, the Trustee shall
(i) execute and deliver such releases, termination statements and other
instruments as the Company may reasonably request evidencing the termination
of
the Liens created by the Collateral Documents and (ii) not be deemed to hold
the
Liens for the benefit of the Holders.
ARTICLE ELEVEN
APPLICATION
OF TRUST MONEYS
SECTION
11.01. “Trust
Moneys” Defined.
Subject
to the provisions of the Collateral Trust Intercreditor Agreement, all cash
or
Cash Equivalents received by the Trustee in accordance with the terms of this
Indenture and the Collateral Documents:
(a)
upon the release of property from the Lien of the Collateral Documents,
including all moneys received in respect of the principal of all purchase money,
governmental or other obligations; or
(b) as
Net
Proceeds upon the Destruction of all or any part of the Collateral (other than
any liability insurance proceeds payable to the Trustee for any loss, liability
or expense incurred by it); or
(c) as
a Net
Award or Net Awards upon the Taking of all or any part of the Collateral;
or
(d) as
proceeds of any other sale or other disposition of all or any part of the
Collateral by or on behalf of the Trustee or any collection, recovery, receipt,
appropriation or other realization of or from all or any part of the Collateral
pursuant to the Collateral Documents or otherwise; or
(e) pursuant
to the Mortgage; or
(f) for
application under this Article Eleven as elsewhere provided in this Indenture
or
the Collateral Documents, or whose disposition is not elsewhere otherwise
specifically provided for herein or in the Collateral Documents;
(all
such
moneys being herein sometimes called “Trust Moneys”; provided, however, that
Trust Moneys shall not include any property deposited with the Trustee pursuant
to Section 3.06 or Article Eight or delivered to or received by the Trustee
for
application in accordance with Section 6.10) shall be held by the Trustee for
the benefit of the Holders as a part of the Collateral and, upon any entry
upon
or sale or other disposition of the Collateral or any part thereof pursuant
to
the Collateral Documents, said Trust Moneys shall be applied in accordance
with
Section 6.10; but, prior to any such entry, sale or other disposition, all
or
any part of the Trust Moneys may be withdrawn, and shall be released, paid
or
applied by the Trustee, from time to time as provided in this Article
Eleven.
On
the
Issue Date there shall be established and, at all times hereafter until this
Indenture shall have terminated, there shall be maintained with the Trustee
an
account which shall be entitled the “Collateral Account” (the “Collateral
Account”). The Collateral Account shall be established and maintained by the
Trustee at its corporate trust offices. All Trust Moneys which are received
by
the Trustee shall be deposited in the Collateral Account and thereafter shall
be
held, applied and/or disbursed by the Trustee in accordance with the terms
of
this Article Eleven.
SECTION
11.02. Withdrawals
of Insurance Proceeds and Condemnation Awards.
Subject
to the provisions of the Collateral Documents, to the extent that any Trust
Moneys consist of either (i) any Net Proceeds or (ii) any Net Award or the
proceeds for any of the Collateral subject to a Taking sold pursuant to the
exercise by the United States of America or any state, municipality or other
governmental authority of any right which it may then have to purchase, or
to
designate a purchaser or to order a sale of any part of the Collateral, such
Trust Moneys may be withdrawn by the Company and shall be paid by the Trustee
upon a request by a Company
Order to reimburse the Company for expenditures made, or to pay costs incurred,
by the Company to repair, rebuild or replace the property destroyed, damaged
or
taken, upon receipt by the Trustee of the following:
(a) an
Officers’ Certificate of the Company, dated not more than 30 days prior to the
date of the application for the withdrawal and payment of such Trust
Moneys:
(i) that
expenditures have been made, or costs incurred, by the Company in a specified
amount for the purpose of making certain repairs, rebuildings and replacements
of the Collateral, which shall be briefly described, and stating the fair value
thereof to the Company at the date of the expenditure or incurrence thereof
by
the Company;
(ii) that
no
part of such expenditures or costs has been or is being made the basis for
the
withdrawal of any Trust Moneys in any previous or then pending application
pursuant to this Section 11.02;
(iii) that
there is no outstanding Indebtedness, other than costs for which payment is
being requested, for the purchase price or construction of such repairs,
rebuildings or replacements, or for labor, wages, materials or supplies in
connection with the making thereof, which, if unpaid, might become the basis
of
a vendors’, mechanics’, laborers’, materialmen’s, statutory or other similar
Lien upon any of such repairs, rebuildings or replacements, which Lien might,
in
the opinion of the signers of such certificate, materially impair the security
afforded by such repairs, rebuildings or replacements;
(iv) that
the
property to be repaired, rebuilt or replaced is necessary or desirable in the
conduct of the Company’s business;
(v) whether
any part of such repairs, rebuildings or replacements within six months before
the date of acquisition thereof by the Company has been used or operated by
any
Person other than the Company in a business similar to that in which such
property has been or is to be used or operated by the Company, and whether
the
fair value to the Company, at the date of such acquisition, of such part of
such
repairs, rebuildings or replacement is at least $25,000, and 1% of the aggregate
principal amount of the outstanding Notes and, if all of such facts are present,
such part of said repairs, rebuildings or replacements shall be separately
described and it shall be stated that an Appraiser’s or Independent Financial
Adviser’s certificate as to the fair value to the Company of such separately
described repairs, rebuildings or replacements will be furnished under paragraph
(b) of this Section 11.02;
(vi) that
no
Default or Event of Default shall have occurred and be continuing;
and
(vii) that
all
conditions precedent herein provided for relating to such withdrawal and payment
have been complied with; (b) all documentation required under TIA § 314(d); (c)
(i) In case any part of such repairs, rebuildings or replacements constitutes
Real Property:
(1) with
respect to any such repairs, rebuildings or replacements that are not
encompassed within or are not erected upon Mortgaged Property, an instrument
or
instruments in recoverable form sufficient for the Lien of this
Indenture
and any mortgage to cover such repairs,
rebuildings or replacements which, if such repairs, rebuildings or replacements
include leasehold or easement interests, shall include normal and customary
provisions with respect thereto and evidence of the filing of all such documents
as may be necessary to perfect such Liens;
(2) a
policy
of title insurance (or a commitment to issue title insurance) insuring that
the
Lien of this Indenture and any Mortgage constitutes a direct and valid and
perfected mortgage Lien (of the priority contemplated in Section 10.01(a)
hereof) on such repairs, rebuildings or replacements in an aggregate amount
equal to the fair value of such repairs, rebuildings or replacements, together
with such endorsements and other opinions as are contemplated in Section
10.02(b), or with respect to any such repairs, rebuildings or replacements
that
are encompassed within or erected upon Mortgaged Property an endorsement to
the
title insurance policy issued pursuant to Section 10.02(b) regarding the
affected Mortgaged Property confirming that such repairs, rebuildings or
replacements are encumbered by the Lien of the applicable Mortgage;
(3) in
the
event that such repairs, rebuildings or replacements have a fair value in excess
of $100,000.00, a Survey with respect thereto; and
(4) evidence
of payment or a closing statement indicating payments to be made by the Company
of all title premiums, recording charges, transfer taxes and other costs and
expenses, including reasonable legal fees and disbursements of counsel for
the
Trustee (and any local counsel), that may be incurred to validly and effectively
subject such repairs, rebuildings or replacements to the Lien of any applicable
Collateral Document and to perfect such Lien; and
(viii)
in
case
any part of such repairs, rebuildings or replacements constitutes Personal
property interests:
(1) an
instrument in recoverable form sufficient for the Lien of the Note Agreement
to
cover such repairs, rebuildings or replacements; and
(2) evidence
of payment or a closing statement indicating payments to be made by the Company
of all filing fees, recording charges, transfer taxes and other costs and
expenses, including reasonable legal fees and disbursements of counsel for
the
Trustee (and any local counsel), that may be incurred to validly and effectively
subject such repairs, rebuildings or replacements to the Lien of any Collateral
Document; and
(b) an
Opinion of Counsel substantially stating:
(i) that
the
instruments that have been or are therewith delivered to the Trustee conform
to
the requirements of this Indenture and the Collateral Documents, and that,
upon the basis of such request of the Company and the accompanying documents
specified in this Section 11.02, all conditions precedent herein provided for
relating to
such
withdrawal and payment have been complied with,
and the Trust Moneys whose withdrawal is then requested may be lawfully paid
over under this Section 11.02;
(ii) that
the
Company has acquired title to said repairs, rebuildings and replacements at
least equivalent to its title to the property destroyed, damaged or taken,
and
that the same and every part thereof are free and clear of all Liens prior
to
the Lien of any Collateral Documents, except Liens of the type permitted under
the applicable Collateral Document to which the property so destroyed, damaged
or taken shall have been subject at the time of such destruction, damage or
taken;
(iii) that
all
of the Company’s right, title and interest in and to said repairs, rebuildings
or replacements, or combination thereof, are then subject to the Lien of the
Collateral Documents.
Upon
compliance with the foregoing provisions of this Section 11.02, the Trustee
shall pay on the written request of the Company an amount of Trust Moneys of
the
character aforesaid equal to the amount of the expenditures or costs stated
in
the Officers’ Certificate required by clause (i) of subsection (a) of this
Section 11.02, or the fair value to the Company of such repairs, rebuildings
and
replacements stated in such Officers’ Certificate (or in such Appraiser’s or
Independent Financial Advisor’s certificate, if required), whichever is
less.
SECTION
11.03. Withdrawal
of Trust Moneys on Basis of Retirement of Notes.
(a) Except
with respect to Trust Moneys received pursuant to Section 10.03(b) and subject
to release pursuant to Section 11.03(b) and Section 11.04, and as otherwise
permitted or required by the Collateral Documents, the Trustee shall apply
Trust
Moneys from time to time to the payment of the principal of and interest on
any
Notes, on any Maturity Date or to the redemption thereof or the purchase thereof
upon tender or in the open market or at private sale or upon any exchange or
in
any one or more of such ways, including pursuant to a Change of Control Offer
under Section 4.15 or an Asset Sale Offer pursuant to Section 4.16, as the
Company shall request in writing, upon receipt by the Trustee of the
following:
(i) a
Board
Resolution of the Company directing the application pursuant to this Section
11.03 of a specified amount of Trust Moneys and, if any such moneys are to
be
applied to payment, designating the Notes so to be paid and, in case any such
moneys are to be applied to the purchase of Notes, prescribing the method of
purchase, the price or prices to be paid and the maximum principal amount of
Notes to be purchased and any other provisions of this Indenture governing
such
purchase;
(ii) cash
in
the maximum amount of the accrued interest, if any, required to be paid in
connection with any such purchase, which cash shall be held by the Trustee,
in
trust for such purpose;
(iii) an
Officers’ Certificate, dated not more than 5 Business Days prior to the date of
the relevant application, stating (A) that no Default or Event of Default
exists
unless such Default or Event of Default would be cured thereby, and (B) that
all
conditions precedent and covenants herein provided for relating to such
application of Trust Moneys have been complied with; and
(iv) an
Opinion of Counsel stating that the documents and the cash or Cash Equivalents,
if any, which have been or are therewith delivered to and deposited with the
Trustee conform to the requirements of this Indenture and that all conditions
precedent herein provided for relating to such application of Trust Moneys
have
been complied with.
Upon
compliance with the foregoing provisions of this Section 11.03(a), the Trustee
shall apply Trust Moneys as directed and specified by such Board Resolution,
up
to, but not exceeding, the principal amount of the Notes so paid or purchased,
using the cash deposited pursuant to paragraph (ii) of this Section 11.03(a),
to
the extent necessary, to pay any accrued interest required in connection with
such purchase.
(b) To
the
extent that any Trust Moneys consist of Trust Moneys received by the Trustee
pursuant to the provisions of Section 4.16 and the Company has made an Asset
Sale Offer which is not fully subscribed to by the Holders, the Trust Moneys
remaining after completion of the Asset Sale Offer may be withdrawn by the
Company and shall be paid by the Trustee to the Company (or as otherwise
directed by the Company) upon a Company Order to the Trustee and upon receipt
by
the Trustee of the following:
(i) A
notice
which shall (A) refer to this Section 11.03(b) and (B) describe with
particularity the Asset Sale from which such Trust Moneys were held as
Collateral, the amount of Trust Moneys applied to the purchase of Notes pursuant
to the Asset Sale Offer and the remaining amount of Trust Moneys to be released
to the Company;
(ii) An
Officers’ Certificate certifying that (A) the release of the Trust Moneys
complies with the terms and conditions of Section 4.16, (B) there is no Default
or Event of Default in effect or continuing on the date thereof, (C) the release
of the Trust Moneys will not result in a Default or Event of Default hereunder,
and (D) all conditions precedent and covenants herein provided relating to
such
release have been complied with;
(iii) All
documentation required under TIA 314(d); and
(iv) An
Opinion of Counsel stating that the documents that have been or are therewith
delivered to the Collateral Agent and the Trustee conform to the requirements
of
this Indenture and that all conditions precedent herein provided for relating
to
such application of Trust Moneys have been complied with.
SECTION
11.04. Withdrawal
of Trust Moneys for Reinvestment.
To
the
extent that any Trust Moneys consist of Net Cash Proceeds received by the
Trustee pursuant to the provisions of Section 4.16, and the Company intends
to
reinvest such Net Cash Proceeds in a Related Business Investment (the “Released
Trust Moneys”), such Trust Moneys
may be withdrawn by the Company and shall be paid by the Trustee to the Company
(or as otherwise directed by the Company) upon a Company Order to the Trustee
and upon receipt by the Trustee of the following:
(a) A
notice
which shall (i) refer to this Section 11.04, (ii) contain all documents referred
to below, (iii) describe with particularity the Released Trust Moneys and the
Asset Sale from which such Released Trust Moneys were held as Collateral, (iv)
describe with particularity the Related Business Investment to be made with
respect to the Released Trust Moneys and (v) be accompanied by a counterpart
of
the instruments proposed to give effect to the release fully executed and
acknowledged (if applicable) by all parties thereto other than the Trustee;
(b) An
Officers’ Certificate certifying that (i) the release of the Released Trust
Moneys complies with the terms and conditions of Section 4.16, (ii) there is
no
Default or Event of Default in effect or continuing on the date thereof, (iii)
the release of the Released Trust Moneys will not result in a Default or Event
of Default hereunder and (iv) all conditions precedent and covenants herein
provided for relating to such release and application of the Released Trust
Moneys have been complied with;
(c) If
the
Related Business Investment to be made is an investment in Real
Property:
(i) an
instrument or instruments in recordable form sufficient for the Lien of any
Mortgage to cover such Real Property which, if the Real Property is a leasehold
or easement interest, shall include normal and customary provisions with respect
thereto and evidence of the filing of all such financing statements and other
instruments as may be necessary to perfect such Liens;
(ii) a
policy
of title insurance (or a commitment to issue title insurance) insuring that
the
Lien of this Indenture and any Mortgage constitutes a direct and valid and
perfected mortgage Lien of the priority contemplated in Section 10.01(a) on
such
Real Property in an aggregate amount equal to the fair value of the Real
Property, together with an Officers’ Certificate stating that any specific
exceptions to such title insurance are Permitted Liens, together with such
endorsements and other opinions as are contemplated by Section
11.2(b)(ii);
(iii) in
the
event such Real Property has a fair value in excess of $250,000, a Survey with
respect thereto; and
(iv) evidence
of payment or a closing statement indicating payments to be made by the Company
of all title premiums, recording charges, transfer taxes and other costs and
expenses, including reasonable legal fees and disbursements of one counsel
for
the Trustee (and any local counsel), that may be incurred to validly and
effectively subject the Real Property to the Lien of any applicable Collateral
Document to perfect such Lien; and
(d) If
the
Related Business Investment is Personal property interest:
(i) an
instrument in recordable form, if necessary, sufficient for the Lien of any
applicable Collateral Document to cover such Personal property interest;
and
(ii) evidence
of payment or a closing statement indicating payments to be made by the Company
of all filing fees, recording charges, transfer taxes and other costs and
expenses, including reasonable legal fees and disbursements of one counsel
for
the Trustee (and any local counsel), that may be incurred to validly and
effectively subject the Related Business Investment to the Lien of any
Collateral Document.
(e) All
documentation required under TIA § 314(d); and
(f) An
opinion of counsel stating that the documents that have been or are therewith
delivered to the Collateral Agent and the Trustee conform to the requirements
of
this Indenture and that all conditions precedent herein provided for relating
to
such application of Trust Moneys have been complied with.
Upon
compliance with the foregoing provisions of this Section, the Trustee shall
apply the Released Trust Moneys as directed and specified by the
Company.
SECTION
11.05. Powers
Exercisable Notwithstanding Default or Event of Default.
In
case a
Default or an Event of Default shall have occurred and shall be continuing,
the
Company, while in possession of the Collateral (other than cash, Cash
Equivalents, securities and other Personal property held by, or required to
be
deposited or pledged with, the Trustee hereunder or under the Collateral
Documents), may do any of the things enumerated in Sections 11.02, 11.03 and
11.04 if the Holders of a majority in aggregate principal amount of the Notes
outstanding, by appropriate action of such Holders, shall consent to such
action, in which event any certificate filed under any of such Sections shall
omit the statement to the effect that no Default or Event of Default has
occurred and is continuing. This Section 11.05 shall not apply, however, during
the continuance of an Event of Default of the type specified in Section 6.01(1)
or (2).
SECTION
11.06. Powers
Exercisable by Trustee or Receiver.
In
case
the Collateral (other than any cash, Cash Equivalents, securities and other
Personal property held by, or required to be deposited or pledged with, the
Trustee hereunder or under the Collateral Documents) shall be in the possession
of a receiver or trustee lawfully appointed, the powers hereinbefore in this
Article Eleven conferred upon the Company with respect to the withdrawal or
application of Trust Moneys may be exercised by such receiver or trustee, in
which case a certificate signed by such receiver or trustee shall be deemed
the
equivalent of any Officers’ Certificate required by this Article Eleven. If the
Trustee shall be in possession of any of the Collateral hereunder or under
any
of the Collateral Documents, such powers may be exercised by the Trustee, in
its
discretion.
SECTION
11.07. Investment
of Trust Moneys.
All
or
any part of any Trust Moneys held by the Trustee shall from time to time be
invested or reinvested by the Trustee in any Cash Equivalents pursuant to the
written direction of
the
Company, which shall specify the Cash Equivalents in which such Trust Moneys
shall be invested and the maturity date of such investment. Unless an Event
of
Default occurs and is continuing, any interest on such Cash Equivalents (in
excess of any accrued interest paid at the
time
of purchase) that may be received by the Trustee
shall be forthwith paid to the Company. Such Cash Equivalents shall be held
by
the Trustee as a part of the Collateral, subject to the same provisions hereof
as the cash used by it to purchase such Cash Equivalents.
The
Trustee shall not be liable or responsible for any loss resulting from such
investments or sales except only for its own grossly negligent action, its
own
grossly negligent failure to act or its own willful misconduct in complying
with
this Section 11.07.
ARTICLE
TWELVE
MISCELLANEOUS
SECTION
12.01. TIA
Controls.
If
any
provision of this Indenture limits, qualifies, or conflicts with another
provision which is required to be included in this Indenture by the TIA, the
required provision shall control.
Any
notices or other communications required or permitted hereunder shall be in
writing, and shall be sufficiently given if made by hand delivery, by telex,
by
telecopier or registered or certified mail, postage prepaid, return receipt
requested, or overnight courier addressed as follows:
if
to the
Company:
WCI
Steel, Inc.
1040
Pine
Avenue, S.E.
Warren,
OH 44482
Attention:
Chief Financial Officer
Telephone:
330-841-8301
Fax:
330-841-8387
with
a
copy to:
McDermott
Will & Emery LLP
28
State
Street
Boston,
MA 02109-1775
Attention:
Dennis J. White, Esq.
Telephone:
617-535-4011
Fax:
617-535-3800
if
to the
Trustee or the Collateral Agent:
Wilmington
Trust Company
Rodney
Square North
1100
Market Street
Wilmington,
DE 19890
Attention:
Corporate Trust Administrator
Telephone:
(302) 636-6436
Fax:
(302) 636-4145
Each
of
the Company, the Trustee and the Collateral Agent by written notice to each
other such Person may designate additional or different addresses for notices
to
such Person. Any notice or communication to the Company, the Trustee or the
Collateral Agent shall be deemed to have been given or made as of the date
so
delivered, if Personally delivered; when answered back, if telexed; when receipt
is acknowledged, if faxed; and five (5) calendar days after mailing, if sent
by
registered or certified mail, postage prepaid (except that a notice of change
of
address shall not be deemed to have been given until actually received by the
addressee).
Any
notice or communication mailed to a Holder, including any notice delivered
in
connection with TIA § 310(b), TIA § 313(c), TIA § 314(a) and TIA § 315(b), shall
be mailed to him by first class mail or other equivalent means at his address
as
it appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure
to mail a notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders. If a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
SECTION
12.03. Communications
by Holders with Other Holders.
Holders
may communicate pursuant to TIA §. 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar and any other Person shall have the protection of TIA §
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 satisfactory to the Trustee,
stating that, in the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION
12.05. Statements
Required in Certificate or Opinion.
Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a
statement that the Person making such certificate or opinion has read such
covenant or condition;
(b) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(c) a
statement that, in the opinion of such Person, he has made such examination
or
investigation as is necessary to enable him to express an informed opinion
as to
whether or not such covenant or condition has been complied with;
and
(d) a
statement as to whether or not, in the opinion of each such Person, such
condition or covenant has been complied with.
SECTION
12.06. Rules
by
Trustee, Paying Agent, Registrar.
The
Trustee may make reasonable rules in accordance with the Trustee’s customary
practices for action by or at a meeting of Holders. The Paying Agent or
Registrar may make reasonable rules for its functions.
SECTION
12.07. Legal
Holidays.
A
“Legal
Holiday” used with respect to a particular place of payment is a Saturday, a
Sunday or a day on which banking institutions in New York, New York or at such
place of payment are not required to be open. If a payment date is a Legal
Holiday at such place, payment may be made at such place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION
12.08. Governing
Law.
THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Each of the parties hereto agrees to submit to the jurisdiction of the courts
of
the State of New York in any action or proceeding arising out of or relating
to
this Indenture.
SECTION
12.09. No Adverse
Interpretation of Other Agreements.
This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or any of its Subsidiaries. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION
12.10. No Recourse
Against Others.
A
director, officer, employee, stockholder or Affiliate, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or this Indenture or for any claim based on, in respect of or by reason of
such
obligations or their creation. Each Holder by accepting a Note waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Notes.
SECTION
12.11. 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
successor.
SECTION
12.12. Duplicate
Originals.
All
parties may sign any number of copies of this Indenture. Each signed copy shall
be an original, but all of them together shall represent the same
agreement.
SECTION
12.13. Severability.
In
case
any provision in this Indenture or in the Notes shall be invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or
impaired thereby.
SIGNATURES
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the date first written above.
WCI
STEEL, INC.
as
Issuer
By:
/s/
Cynthia
Bezik
Name:
Cynthia
Bezik
Title:
Vice President -- Finance
WILMINGTON
TRUST COMPANY,
as
Trustee and as Collateral Agent
By:
/s/
Steven
Cimalore
Name:
Steven Cimalore
Title:
Vice President
85
EXHIBIT
A
[Face
of
Note]
WCI
Steel, Inc.
8%
Senior
Secured Note
due
2016
No. $
WCI
STEEL, INC., a Delaware corporation (the “Company,” which term includes any
successor entity), for value received promises to pay to ______________ or
registered assigns, the principal sum of $_________, on May 1, 2016.
Interest
Payment Dates: November 1 and May 1.
Record
Dates: September 15 and April 15.
To
the
extent set forth in the Collateral Documents, payment hereof is secured, on
an
equal and ratable basis with all other Securities, by a valid, perfected
security interest in the Collateral (as defined in the Indenture) with the
priority contemplated in Section 10.01(a) of the Indenture, the terms of which
security interest are more fully set forth in the Collateral Documents.
Reference
is made to the further provisions of this Note contained herein, which
will for all purposes have the same effect as if set forth at this
place.
IN
WITNESS WHEREOF, the Company has caused this Note to be signed manually or
by
facsimile by its duly authorized officer.
Dated:
May 1, 2006
WCI
STEEL,
INC.
By:__________________________________
Name:
Title:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is
one of the Notes described in the within-mentioned Indenture.
WILMINGTON
TRUST
COMPANY,
as
Trustee
By_____________________________________
Authorized
Signatory
[Back
of
Note]
WCI
Steel, Inc.
8%
Senior
Secured Note
due
2016
1.
Interest.
WCI
Steel, Inc., a Delaware corporation (the “Company”), promises to pay cash
interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semi-annually in arrears on November 1 and May
1
of each year (the “Interest Payment Date”), commencing November 1, 2006.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Notes shall mature on the Maturity Date.
The
Company shall pay interest on overdue principal and interest on overdue
installments of interest, to the extent lawful, at a rate equal to 12% per
annum.
2.
Method
of Payment.
The
Company shall pay interest on the Notes (except defaulted interest) to the
Persons who are the registered Holders at the close of business on the Record
Date immediately preceding the Interest Payment Date even if the Notes are
cancelled on registration of transfer or registration of exchange after such
Record Date. Holders must surrender Notes to a Paying Agent to collect principal
payments. The Company shall pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts (“U.S. Legal Tender”). However, the Company may pay principal and
interest by wire transfer of Federal funds, or interest by its check payable
in
such U.S. Legal Tender. The Company may deliver any such interest payment to
the
Paying Agent or to a Holder at the Holder’s registered address. If this Note is
a Global Note, all payments in respect of this Note will be made to the
Depositary or its nominee in immediately available funds in accordance with
customary procedures established from time to time by the
Depositary.
3.
Paying
Agent and Registrar.
Initially,
Wilmington Trust Company (the “Trustee”), will act as Paying Agent and
Registrar. The Company may change any Paying Agent or Registrar without notice
to the Holders.
4.
Indenture.
The
Company issued the Notes under an Indenture, dated as of May 1, 2006 (the
“Indenture”), by and between the Company and the Trustee. This Note is one of a
duly authorized issue of Notes of the Company designated as its 8% Senior
Secured Notes due 2016 (the “Notes”), limited (except as otherwise provided in
the Indenture) in aggregate principal amount to $100,000,000. Capitalized terms
herein are used as defined in the Indenture unless otherwise defined herein.
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 (15 U.S.
Code
§ 77aaa-77bbbb)
(the “TIA”), as in effect on the date of the Indenture until such time as the
Indenture is qualified under the TIA, and thereafter as in effect on the date
on
which the Indenture is qualified under the TIA. Notwithstanding anything to
the
contrary herein, the Notes are subject to all such terms, and Holders of Notes
are referred to the Indenture and said Act for a statement of them. The Notes
are general secured obligations of the Company limited in aggregate principal
amount to $100,000,000.
5.
Registration Rights
Certain
Holders in whose hands the Notes will not be freely tradable on the Issue Date
are parties to the Registration Rights Agreement, dated as of May 1, 2006,
by
and between such Holders and the Company (the “Registration Rights Agreement”).
Such Holders are entitled to the benefits of the Registration Rights Agreement.
Pursuant to the Registration Rights Agreement, the Company has agreed that
it
will, at its expense, (a) use its reasonable best efforts to (i) file a
registration statement (the “Resale Registration Statement”) with the SEC with
respect to resales of the Notes held by such Holders or include the Notes in
a
registration statement filed by the Company with respect to its securities
(together with the Resale Registration Statement, a “Company Registration
Statement”), (ii) cause such Company Registration Statement to be declared
effective by the SEC, and (iii) keep such Company Registration Statement
effective under the Securities Act until the earliest of (A) the distribution
of
the Notes and (B) 180 days from the effective date of the Company Registration
Statement, and (b) use its reasonable best efforts to (i) file a registration
statement (the “Exchange Offer Registration Statement”) with the SEC with
respect to the exchange of the Notes held by the Holders for a like principal
amount of notes registered under the Securities Act (the “Exchange Offer”)
within one calendar year after the Issue Date, (ii) cause such Exchange Offer
Registration Statement to be declared effective by the SEC within 120 days
following the filing of the Exchange Offer Registration Statement, (iii) keep
such Exchange Offer Registration Statement effective under the Securities Act
until the closing of the Exchange Offer and (iv) cause the Exchange Offer to
be
consummated not later than 240 days following the filing of the Exchange Offer
Registration Statement.
6.
Optional Redemption.
The
Notes
may be redeemed, in whole or in part, at the option of the Company, at any
time,
at a Redemption Price equal to 100% of the principal amount of Notes to be
redeemed, plus the Applicable Premium as of, and accrued and unpaid interest
to,
the applicable Redemption Date (subject to the right of Holders of record on
the
relevant Record Date to receive interest due on the relevant Interest Payment
Date) Any such redemption shall be made in accordance with the procedures set
forth in the Indenture.
7.
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 of Notes to be redeemed at such Holder’s
registered address. Notes in denominations larger than $1 may be redeemed in
part.
Except
as
set forth in the Indenture, from and after any Redemption Date, if monies for
the redemption of the Notes called for redemption shall have been deposited
with
the Paying Agent for redemption on such Redemption Date, then, unless the
Company defaults in the payment of such Redemption Price, the Notes called
for
redemption will cease to bear interest and the only right of the Holders of
such
Notes will be to receive payment of the Redemption Price.
8.
Change
of Control Offer.
Upon
the
occurrence of a Change of Control, upon the satisfaction of the conditions
set
forth in the Indenture, the Company shall be required to offer to purchase
all
of the then outstanding Notes pursuant to a Change of Control Offer at a
purchase price equal to 101% of the principal amount thereof plus accrued
interest, if any, to the date of purchase. Holders of Notes which are the
subject of such an offer to repurchase shall receive an offer to repurchase
and
may elect to have such Notes repurchased in accordance with the provisions
of
the Indenture pursuant to and in accordance with the terms of the
Indenture.
9.
Limitation on Disposition of Assets.
Under
certain circumstances, the Company is required to apply the net proceeds from
Asset Sales to repurchase Notes at a price equal to 100% of the aggregate
principal amount thereof, plus accrued interest to the date of
purchase.
10.
Collateral Documents.
In
order
to secure the due and punctual payment of the principal of and interest on
the
Notes and all other amounts payable by the Company under the Indenture and
the
Notes when and as the same will be due and payable, whether at maturity, by
acceleration or otherwise, according to the terms of the Notes and the
Indenture, the Company has granted security interests in and Liens on the
Collateral owned by it to the Trustee for the benefit of the Holders of Notes
pursuant to the Indenture and the Collateral Documents. The Notes will be
secured by Liens on and security interests in the Collateral with the priority
contemplated in Section 10.01(a) of the Indenture and are subject to certain
permitted encumbrances.
Each
Holder, by accepting a Note, agrees to all of the terms and provisions of the
Collateral Documents, as the same may be amended from time to time pursuant
to
the respective provisions thereof and the Indenture.
The
Trustee and each Holder acknowledge that a release of any of the Collateral
or
any Lien strictly in accordance with the terms and provisions of the Collateral
Documents and the terms and provisions of the Indenture will not be deemed
for
any purpose to be an impairment of the security under the
Indenture.
11.
Denominations; Transfer; Exchange.
The
Notes
are in registered form, without coupons, in denominations of $1 and integral
multiples of $1. A Holder shall register the transfer of or exchange Notes
in
accordance with the Indenture. The Registrar may require a Holder, among other
things, to furnish
appropriate
endorsements and transfer documents and to pay certain transfer taxes or similar
governmental charges payable in connection therewith as permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Notes
or portions thereof selected for redemption. No service charge shall be made
for
any registration of transfer or exchange or redemption of Notes, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
12.
Persons Deemed Owners.
The
registered Holder of a Note shall be treated as the owner of it for all
purposes.
With
respect to Global Notes, the Depositary may grant proxies and otherwise
authorize its direct or indirect Participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which
a Holder of a Note is entitled to give or take under this
Indenture.
13.
Unclaimed Money.
If
money
for the payment of principal or interest remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the Company at its
request. After that, all liability of the Trustee and such Paying Agent with
respect to such money shall cease.
14.
Discharge Prior to Redemption or Maturity.
The
Company’s obligations pursuant to the Indenture will be discharged, except for
obligations pursuant to certain sections thereof, subject to the terms of the
Indenture, upon the payment of all the Notes or upon the irrevocable deposit
with the Trustee of money or U.S. Government Obligations sufficient to pay
when
due principal of, and premium, if any, and interest on the Notes to maturity
or
redemption, as the case may be.
15.
Amendment; Supplement; Waiver.
Subject
to certain exceptions, the Indenture or the Notes may be amended or supplemented
with the written consent of the Holders of at least a majority in aggregate
principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision may be waived with the consent
of the Holders of a majority in aggregate principal amount of the Notes then
outstanding. Without notice to or consent of any Holder, the parties thereto
may
amend or supplement the Indenture or the Notes to, among other things, cure
any
ambiguity, defect or inconsistency, provide for uncertificated Notes in addition
to or in place of certificated Securities, comply with Article Five of the
Indenture, register the Notes under the Registration Rights Agreement or comply
with any requirements of the SEC in connection with the qualification of the
Indenture under the TIA, or make any other change that does not adversely affect
the rights of any Holder of a Note.
16.
Restrictive Covenants.
The
Indenture imposes certain limitations on the ability of the Company and its
Subsidiaries to, among other things, incur additional Indebtedness or Liens,
make payments in
respect
of its Capital Stock and merge or consolidate with any other Person and sell,
lease, transfer or otherwise dispose of substantially all of certain of its
properties or assets. The limitations are subject to a number of important
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
17.
Successors.
When
a
successor assumes all the obligations of its predecessor under the Notes and
the
Indenture, the predecessor will be released from those obligations.
18.
Defaults and Remedies.
If
an
Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of Notes then outstanding may declare
all the Notes to be due and payable in the manner, at the time and with the
effect provided in the Indenture. Holders of Notes may not enforce the Indenture
or the Notes except as provided in the Indenture. The Trustee is not obligated
to enforce the Indenture or the Notes unless it has received indemnity
satisfactory to it. The Indenture permits, subject to certain limitations
therein provided, Holders of a majority in aggregate principal amount of the
Notes then outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Notes notice of any continuing
Default or Event of Default (except a Default in payment of principal or
interest) if it determines that withholding notice is in their
interest.
19.
Trustee Dealings with Company.
The
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Notes and may otherwise deal with the Company, its
Subsidiaries or their respective Affiliates as if it were not the
Trustee.
20.
No
Recourse Against Others.
No
stockholder, director, officer, employee or incorporator, as such, of the
Company shall have any liability for any obligation 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 of a Note by accepting a Note
waives and releases all such liability. The waiver and release are part of
the
consideration for the issuance of the Securities.
21.
Authentication.
This
Note
shall not be valid until the Trustee or authenticating agent manually signs
the
certificate of authentication on this Note.
22.
Governing Law.
The
Laws
of the State of New York shall govern this Note and the Indenture.
23.
Abbreviations and Defined Terms.
Customary
abbreviations may be used in the name of a Holder of a Note 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).
24.
CUSIP
Numbers.
Pursuant
to a recommendation promulgated by the Committee on Uniform Note Identification
Procedures, the Company will cause CUSIP numbers to be printed on the Notes
immediately prior to the qualification of the Indenture under the TIA as a
convenience to the Holders of the Securities. No representation is made as
to
the accuracy of such numbers as printed on the Notes and reliance may be placed
only on the other identification numbers printed hereon.
25.
Indenture.
Each
Holder, by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as the same may be amended from time to
time.
The
Company will furnish to any Holder of a Note upon written request and without
charge a copy of the Indenture. Requests may be made to: WCI Steel, Inc.,
1040
Pine
Avenue, SE, Warren, Ohio 44483-6528, Attention: Chief Financial
Officer.
[FORM
OF
ASSIGNMENT]
I
or we
assign this Note to
(Print
or
type name, address and zip code of assignee)
Please
insert Social Security or other
identifying
number of assignee
_______________________________________
and
irrevocably appoint _______________________ agent to transfer this Note on
the
books of the Company. The agent may substitute another to act for him.
Dated:____________________
Signed:____________________________
______________________________________________________________
(Sign
exactly
as your name appears on the front of this Note )
Signature
Guarantee:__________________________________________
[OPTION
OF HOLDER TO ELECT PURCHASE]
If
you
want to elect to have this Note purchased by the Company pursuant to Section
4.15 or Section 4.16 of the Indenture, check the appropriate box:
Section
4.15 [ ]
Section
4.16 [ ]
If
you
want to elect to have only part of this Note purchased by the Company pursuant
to Section 4.15 or Section 4.16 of the Indenture, state the amount:
$
Date:
__________ Signature:____________________________
(Sign
exactly as your name
appears
on the front of
this
Note
)
Signature
Guarantee:______________________________________
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