1
Exhibit 4.1 EXECUTION COPY
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INDENTURE
DATED AS OF AUGUST 12, 1999
AMONG
WORLDWIDE FLIGHT SERVICES, INC.,
ISSUER,
WORLDWIDE FLIGHT FINANCE COMPANY
WORLDWIDE FLIGHT SECURITY SERVICE CORPORATION
MIAMI INTERNATIONAL AIRPORT CARGO FACILITIES & SERVICES, INC.
MIAMI AIRCRAFT SUPPORT, INC.
INTERNATIONAL ENTERPRISES GROUP, INC.,
AS GUARANTORS
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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UP TO $300,000,000
12 1/4% SENIOR NOTES DUE 2007, SERIES A
12 1/4% SENIOR NOTES DUE 2007, SERIES B
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CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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Section 310(a)................................................................................ 7.03; 7.10; 13.01
(b)................................................................................ 7.03; 7.10; 13.01;
Section 13.02
(c)................................................................................ 7.03; 13.01
Section 311(a)................................................................................ 7.11; 13.01
(b)................................................................................ 7.11; 13.01
(c)................................................................................ 13.01
Section 312(a)................................................................................ 13.01
(b)................................................................................ 13.01; 13.03
(c)................................................................................ 13.01; 13.03
Section 313(a)................................................................................ 7.06; 13.01
(b)(1)............................................................................. 13.01
(b)(2)............................................................................. 7.06; 7.07; 13.01
(c)................................................................................ 7.06; 13.01; 13.02
(d)................................................................................ 7.06; 13.01
Section 314(a)................................................................................ 13.01; 13.02
(b)................................................................................ 13.01
(c)................................................................................ 13.01
(d)................................................................................ 13.01
(e)................................................................................ 13.01
(f)................................................................................ 13.01
Section 315(a)................................................................................ 13.01
(b)................................................................................ 13.01; 13.02
(c)................................................................................ 13.01
(d)................................................................................ 13.01
(e)................................................................................ 13.01
Section 316(a)(1)(A).......................................................................... 6.05; 13.01
(a)(1)(B).......................................................................... 13.01
(a)(2)............................................................................. 13.01
(b)................................................................................ 13.01
(c)................................................................................ 13.01
Section 317 .................................................................................. 13.01
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NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
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TABLE OF CONTENTS
PAGE
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE................................................... 1
SECTION 1.01 Definitions......................................................................... 1
SECTION 1.02 Incorporation by Reference of Trust Indenture Act................................... 22
SECTION 1.03 Rules of Construction............................................................... 22
ARTICLE TWO THE SECURITIES............................................................................... 22
SECTION 2.01 Form and Dating..................................................................... 22
SECTION 2.02 Execution and Authentication........................................................ 23
SECTION 2.03 Registrar and Paying Agent.......................................................... 24
SECTION 2.04 Paying Agent to Hold Assets in Trust................................................ 24
SECTION 2.05 Holder Lists........................................................................ 25
SECTION 2.06 Transfer and Exchange............................................................... 25
SECTION 2.07 Replacement Securities.............................................................. 25
SECTION 2.08 Outstanding Securities.............................................................. 26
SECTION 2.09 Treasury Securities................................................................. 26
SECTION 2.10 Temporary Securities................................................................ 26
SECTION 2.11 Cancellation........................................................................ 26
SECTION 2.12 Defaulted Interest.................................................................. 27
SECTION 2.13 CUSIP Number........................................................................ 27
SECTION 2.14 Deposit of Moneys................................................................... 27
SECTION 2.15 Book-Entry Provisions for Global Securities......................................... 27
SECTION 2.16 Registration of Transfers and Exchanges............................................. 28
SECTION 2.17 Issuance of Additional Securities................................................... 31
ARTICLE THREE REDEMPTION................................................................................. 32
SECTION 3.01 Notices to Trustee.................................................................. 32
SECTION 3.02 Selection of Securities to Be Redeemed.............................................. 32
SECTION 3.03 Notice of Redemption................................................................ 32
SECTION 3.04 Effect of Notice of Redemption...................................................... 33
SECTION 3.05 Deposit of Redemption Price......................................................... 33
SECTION 3.06 Securities Redeemed in Part......................................................... 33
SECTION 3.07 Optional Redemption................................................................. 34
ARTICLE FOUR COVENANTS................................................................................... 34
SECTION 4.01 Payment of Securities............................................................... 34
SECTION 4.02 Maintenance of Office or Agency..................................................... 34
SECTION 4.03 Limitations on Transactions with Affiliates......................................... 35
SECTION 4.04 Limitation on Incurrence of Additional Indebtedness and Issuance of
Preferred Stock..................................................................... 36
SECTION 4.05 Limitation on Asset Sales........................................................... 37
SECTION 4.06 Limitation on Restricted Payments................................................... 40
SECTION 4.07 Compliance with Laws................................................................ 43
SECTION 4.08 Payment of Taxes and Other Claims................................................... 43
SECTION 4.09 Notice of Defaults.................................................................. 43
SECTION 4.10 Maintenance of Properties and Insurance............................................. 43
SECTION 4.11 Compliance Certificate.............................................................. 44
SECTION 4.12 Reports to Holders.................................................................. 44
SECTION 4.13 Waiver of Stay, Extension or Usury Laws............................................. 45
SECTION 4.14 Change of Control................................................................... 45
SECTION 4.15 Prohibition on Incurrence of Certain Types of Indebtedness.......................... 46
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SECTION 4.16 Limitation on Dividend and Other Payment Restrictions Affecting
Subsidiaries........................................................................ 46
SECTION 4.17 Limitation on Liens................................................................. 48
SECTION 4.18 Conduct of Business................................................................. 48
SECTION 4.19 Corporate Existence................................................................. 48
SECTION 4.20 Limitation on Sale and Leaseback Transactions....................................... 48
SECTION 4.21 [Intentionally Omitted]............................................................. 49
SECTION 4.22 Payments for Consent................................................................ 49
SECTION 4.23 Future Subsidiary Guarantors........................................................ 49
ARTICLE FIVE MERGERS, CONSOLIDATIONS AND ASSET SALES; SUCCESSORS......................................... 49
SECTION 5.01 Merger, Consolidation and Sale of Assets............................................ 49
SECTION 5.02 Successor Substituted............................................................... 51
ARTICLE SIX DEFAULT AND REMEDIES......................................................................... 51
SECTION 6.01 Events of Default................................................................... 51
SECTION 6.02 Acceleration........................................................................ 52
SECTION 6.03 Other Remedies...................................................................... 53
SECTION 6.04 Waiver of Past Default.............................................................. 53
SECTION 6.05 Control by Majority................................................................. 53
SECTION 6.06 Limitation on Suits................................................................. 53
SECTION 6.07 Rights of Holders to Receive Payment................................................ 54
SECTION 6.08 Collection Suit by Trustee.......................................................... 54
SECTION 6.09 Trustee May File Proofs of Claim.................................................... 54
SECTION 6.10 Priorities.......................................................................... 54
SECTION 6.11 Undertaking for Costs............................................................... 55
ARTICLE SEVEN TRUSTEE.................................................................................... 55
SECTION 7.01 Duties of Trustee................................................................... 55
SECTION 7.02 Certain Rights of Trustee........................................................... 56
SECTION 7.03 Individual Rights of Trustee........................................................ 57
SECTION 7.04 Trustee's Disclaimer................................................................ 57
SECTION 7.05 Notice of Defaults.................................................................. 57
SECTION 7.06 Reports by Trustee to the Holders................................................... 57
SECTION 7.07 Compensation and Indemnity.......................................................... 57
SECTION 7.08 Replacement of Trustee.............................................................. 58
SECTION 7.09 Successor Trustee by Merger, Etc.................................................... 59
SECTION 7.10 Eligibility; Disqualification....................................................... 59
SECTION 7.11 Preferential Collection of Claims Against Company................................... 59
ARTICLE EIGHT [THIS ARTICLE HAS BEEN INTENTIONALLY OMITTED].............................................. 60
ARTICLE NINE DISCHARGE OF INDENTURE; DEFEASANCE.......................................................... 60
SECTION 9.01 Termination of the Company's Obligations............................................ 60
SECTION 9.02 Legal Defeasance and Covenant Defeasance............................................ 61
SECTION 9.03 Conditions to Legal Defeasance or Covenant Defeasance............................... 62
SECTION 9.04 Application of Trust Money.......................................................... 63
SECTION 9.05 Repayment to Company................................................................ 63
SECTION 9.06 Reinstatement....................................................................... 64
ARTICLE TEN AMENDMENTS, SUPPLEMENTS AND WAIVERS.......................................................... 64
SECTION 10.01 In General.......................................................................... 64
SECTION 10.02 Without Consent of Holders.......................................................... 64
SECTION 10.03 With Majority Consent of Holders.................................................... 65
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SECTION 10.04 Compliance with Trust Indenture Act................................................. 66
SECTION 10.05 Revocation and Effect of Consents................................................... 66
SECTION 10.06 Notation on or Exchange of Securities............................................... 66
SECTION 10.07 Trustee to Sign Amendments, etc..................................................... 66
ARTICLE ELEVEN GUARANTEE................................................................................. 67
SECTION 11.01 Unconditional Guarantee............................................................. 67
SECTION 11.02 Severability........................................................................ 67
SECTION 11.03 Limitation of Guarantor's Liability................................................. 67
SECTION 11.04 Execution of Guarantee.............................................................. 68
SECTION 11.05 [Intentionally omitted]............................................................. 68
SECTION 11.06 Release of Guarantor from Subsidiary Guarantee...................................... 68
ARTICLE TWELVE [THIS ARTICLE HAS BEEN INTENTIONALLY OMITTED]............................................. 68
ARTICLE THIRTEEN MISCELLANEOUS........................................................................... 68
SECTION 13.01 Trust Indenture Act Controls........................................................ 68
SECTION 13.02 Notices............................................................................. 69
SECTION 13.03 Communications by Holders with Other Holders........................................ 70
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.................................. 70
SECTION 13.05 Statements Required in Certificate or Opinion....................................... 70
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar........................................... 70
SECTION 13.07 Governing Law....................................................................... 70
SECTION 13.08 No Recourse Against Others.......................................................... 71
SECTION 13.09 Successors.......................................................................... 71
SECTION 13.10 Counterpart Originals............................................................... 71
SECTION 13.11 Severability........................................................................ 71
SECTION 13.12 No Adverse Interpretation of Other Agreements....................................... 71
SECTION 13.13 Legal Holidays...................................................................... 71
SECTION 13.14 No Personal Liability of Directors, Officers, Employees and Stockholders............ 71
SECTION 13.15 Table of Contents, Headings, etc.................................................... 71
SIGNATURES .......................................................................................... S-1
EXHIBIT A Form of Series A Security................................................................. A-1
EXHIBIT B Form of Series B Security................................................................. B-1
EXHIBIT C Form of Legend for Global Securities...................................................... C-1
EXHIBIT D Form of Transfer Certificate.............................................................. D-1
EXHIBIT E Form of Transfer Certificate for Institutional Accredited Investors....................... E-1
EXHIBIT F Form of Supplemental Indenture............................................................ F-1
EXHIBIT G Form of Officers' Certificate............................................................. G-1
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE dated as of August 12, 1999, among WORLDWIDE FLIGHT
SERVICES, INC., a Delaware corporation (the "Company" or "Worldwide"), as
issuer, the GUARANTORS named herein and THE BANK OF NEW YORK, a New York
banking corporation, as trustee (the "Trustee").
The Securities are being sold in connection with the
acquisition by the Company of Miami Aircraft Support, Inc., a Delaware
corporation ("MAS"), pursuant to that certain Stock Purchase Agreement (the
"Stock Purchase Agreement"), dated as of May 28, 1999, by and among MAS
Worldwide Holding Corporation ("MAS Holding"), a direct wholly owned subsidiary
of the Company, Xxxxxxx Xxxxx and Xxxxxxx Xxxxxx, the sole shareholders of MAS.
The Stock Purchase Agreement provides for the acquisition (the "Acquisition")
of MAS by MAS Holding.
The Company has executed that certain Purchase Agreement,
dated as of August 5, 1999, by and among the Company, the guarantors listed
therein and the Initial Purchasers (as hereinafter defined) (the "Purchase
Agreement"). The Company has also executed that certain A/B Exchange
Registration Rights Agreement, dated as of the date hereof, by and among the
Company, the guarantors listed therein and the Initial Purchasers (the
"Registration Rights Agreement").
Each party hereto agrees as follows for the benefit of each
other party and for the equal and ratable benefit of the holders of the
Securities (the "Holders"):
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Acceleration Notice" see Section 6.02.
"Acquired Debt" means Indebtedness of a Person or any of its
Subsidiaries existing at the time such Person becomes a Restricted Subsidiary
of the Company or at the time it merges or consolidates with the Company or any
of its Restricted Subsidiaries or is assumed by the Company or any of its
Restricted Subsidiaries in connection with the acquisition of assets from such
Person, including, without limitation, Indebtedness incurred by such Person in
connection with, or in anticipation or contemplation of, such Person becoming a
Restricted Subsidiary of the Company or such acquisition, merger or
consolidation.
"Additional Securities" means, subject to the Company's
compliance with Article 4, 12 1/4% Senior Notes due 2007 issued from time to
time after the Issue Date up to a maximum aggregate amount of $170,000,000
(other than pursuant to Sections 2.06, 2.07, 3.06 and 4.05 of this Indenture
and other than Exchange Securities issued pursuant to the Exchange Offer).
"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 purposes of this definition,
"control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of
10% or more of the Voting Stock of a Person shall be deemed to be control. For
purposes of this definition, the terms "controlling," "controlled by" and
"under common control with" shall have correlative meanings.
"Affiliate Transaction" see Section 4.03.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means:
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(1) the sale, lease (other than operating leases entered into in
the ordinary course of business), conveyance or other
disposition of any assets, other than sales of Cash
Equivalents or inventory in the ordinary course of business;
provided that the sale, conveyance or other disposition of
all or substantially all of the assets of the Company and its
Restricted Subsidiaries taken as a whole will be governed by
Section 4.14 and/or Section 5.01 and not by the provisions of
Section 4.05; and
(2) the issuance by any of the Company's Restricted Subsidiaries
of the Equity Interests of such Restricted Subsidiary or the
sale by the Company or any Restricted Subsidiary of Equity
Interests in any Restricted Subsidiaries (other than
directors' qualifying shares).
Notwithstanding the preceding, the following items shall not be deemed to be
Asset Sales:
(a) any single transaction or series of related
transactions that: (i) involves assets having a fair
market value of less than $1.0 million; or (ii)
results in net proceeds to the Company and its
Restricted Subsidiaries of less than $1.0 million;
(b) a transfer, sale, lease, conveyance or other
disposition of assets between or among the Company
and its Restricted Subsidiaries;
(c) an issuance or sale of Equity Interests by a
Restricted Subsidiary to the Company or to another
Restricted Subsidiary;
(d) a Restricted Payment that is permitted by Section
4.06;
(e) a Permitted Lien;
(f) a sale or other disposition or abandonment of
damaged, worn-out or obsolete property in the
ordinary course of business;
(g) any sale, transfer or conveyance of Equity Interests
of a Restricted Subsidiary; provided that
immediately after giving effect to such sale,
transfer or conveyance, if such Restricted
Subsidiary would (i) no longer be a Restricted
Subsidiary, the Investment of the Company (or any
Restricted Subsidiary) in such Person (after giving
effect to such sale, transfer or conveyance) would
have been permitted to be made pursuant to Section
4.06 as if made on the date of such sale, transfer
or conveyance or (ii) continue to be a Restricted
Subsidiary, the aggregate noncash consideration
received by the Company or any of its Restricted
Subsidiaries in such sale, transfer or conveyance
does not have a fair market value, taken together
with all other noncash consideration (other than
such consideration converted into cash or Cash
Equivalents) received pursuant to this clause (ii),
in excess of $10.0 million; provided further that as
part of any such sale, transfer or conveyance
pursuant to clause (i) or (ii) above (1) the Company
or any of its Restricted Subsidiaries, as the case
may be, receives consideration at the time of such
sale, transfer or conveyance (without giving effect
to subsequent changes in value) at least equal to
the fair market value of the Equity Interests sold,
transferred or conveyed and (2) with regard to any
such sale, transfer or conveyance involving
aggregate consideration in excess of $2.5 million,
the fair market value of such consideration is
determined by the Company's Board of Directors and
evidenced by a resolution of the Board of Directors
set forth in an Officer's Certificate delivered to
the Trustee;
(h) sales of accounts receivable in the ordinary course
of business for cash for financing purposes;
(i) an Asset Swap effected in compliance with Section
4.05; and
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(j) the issuance of options, warrants or other similar
rights to purchase Equity Interests of a Restricted
Subsidiary to any then-serving director or member of
management of such Restricted Subsidiary in the
ordinary course of business.
"Asset Sale Offer" has the meaning provided in Section
4.05(A).
"Asset Sale Offer Amount" has the meaning provided in Section
4.05(A).
"Asset Sale Offer Payment Date" has the meaning provided in
Section 4.05(B).
"Asset Sale Offer Trigger Date" means the 361st day after an
Asset Sale.
"Asset Swap" means a substantially concurrent purchase and
sale or exchange of Related Business Assets between the Company or any of its
Restricted Subsidiaries and another Person; provided that any cash received
must be applied in accordance with the terms contained in Section 4.05.
"Attributable Debt" in respect of a sale and leaseback
transaction means, at the time of determination, the present value of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the option of the lessor, be
extended. Such present value shall be calculated using a discount rate equal to
the rate of interest implicit in such transaction, determined in accordance
with GAAP.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code or any
similar Federal, state or foreign law for the relief of debtors.
"Beneficial Owner" has the meaning assigned to such term in
Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular "person" (as such term is used in
Section 13(d)(3) of the Exchange Act), such "person" shall be deemed to have
beneficial ownership of all securities that such "person" has the right to
acquire, whether such right is currently exercisable or is exercisable only
upon the occurrence of a subsequent condition.
"Board of Directors" means, as to any Person, the board of
directors of such Person or any duly authorized committee thereof.
"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.
"Business Day" means a day other than a Saturday, a Sunday or
a day on which banking institutions in New York, New York are not required to
be open.
"Calculation Date" has the meaning ascribed such term in the
definition of "Fixed Charge Coverage Ratio" in this Section 1.01.
"Capital Lease Obligation" means, at the time any
determination thereof is to be made, the amount of the liability in respect of
a capital lease that would at that time be required to be capitalized on a
balance sheet in accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other
equivalents (however designated) in the equity of such
association or entity;
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(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or
limited); and
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Equivalents" means (i) securities issued by, or
unconditionally guaranteed or insured 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 one year from the date of
acquisition thereof ("Government Obligations"); (ii) marketable direct
obligations issued by any state of the United States of America or any
political subdivision thereof maturing within one year 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 Corporation ("S&P") or
Xxxxx'x Investors Service, Inc. ("Moody's"); (iii) commercial paper and
variable or fixed rate notes maturing no more than six months from the
acquisition thereof and, at the time of acquisition, having a rating of at
least A-1 from S&P or at least P-1 from Moody's; (iv) certificates of deposit
or bankers' acceptances maturing within one year from the date of acquisition
thereof issued by any 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 $250.0 million; (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; (vi) federally tax exempt securities rated "A"
or better by S&P or "A2" or better by Moody's; (vii) investments in money
market funds with assets of $100.0 million or greater which invest
substantially all their assets in securities of the types described in clauses
(i) through (vi) above; and (viii) in the case of Foreign Subsidiaries,
substantially similar Cash Equivalents as those described in clauses (i), (iii)
and (iv) above that are available in the local currency.
"Change of Control" means the occurrence of any one or more
of the following:
(1) the sale, transfer, conveyance or other disposition (other
than a Lien or by way of merger or consolidation), in one or
a series of related transactions, of all or substantially all
of the assets of the Company and its Subsidiaries taken as a
whole to any "person" (as such term is used in Section
13(d)(3) of the Exchange Act) other than a Permitted Holder
or a Related Party of a Permitted Holder;
(2) the adoption by holders of the Capital Stock of the Company
of a plan for the liquidation or dissolution of the Company;
(3) prior to the first Public Equity Offering, the consummation
of any transaction (including, without limitation, any merger
or consolidation) the result of which is that the Permitted
Holders and their Related Parties are the Beneficial Owners,
directly or indirectly, of less than 51% of the total voting
power of the Voting Stock of the Company;
(4) after the first Public Equity Offering, the consummation of
any transaction (including, without limitation, any merger or
consolidation) the result of which is that any "person" (as
defined above), other than the Permitted Holders and their
Related Parties, becomes the Beneficial Owner, directly or
indirectly, of more than 30% of the total voting power of the
Voting Stock of the Company; or
(5) the first day on which a majority of the members of the Board
of Directors of the Company are not Continuing Directors.
"Change of Control Offer" has the meaning provided in Section
4.14(a).
"Change of Control Payment Date" has the meaning provided in
Section 4.14(b).
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"Company" has the meaning ascribed to such term in the
introductory paragraphs to this Indenture.
"Consolidated Cash Flow" means, with respect to any Person
for any period, the Consolidated Net Income of such Person for such period
plus:
(1) provision for taxes based on income or profits of such Person
and its Restricted Subsidiaries for such period, to the
extent that such provision for taxes was deducted in
computing such Consolidated Net Income; plus
(2) consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized (including, without
limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and commitment and other fees
and charges incurred in respect of letters of credit or
bankers' acceptance financings, and net payments, if any,
pursuant to Hedging Obligations), to the extent that any such
expense was deducted in computing such Consolidated Net
Income; plus
(3) depreciation, amortization (including amortization of
goodwill and other intangibles but excluding amortization of
prepaid cash expenses that were paid in a prior period) and
other non-cash expenses (excluding any such non-cash expense
to the extent that it represents an accrual of or reserve for
cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) of such
Person and its Restricted Subsidiaries for such period to the
extent that such depreciation, amortization and other
non-cash expenses were deducted in computing such
Consolidated Net Income; minus
(4) non-cash items increasing such Consolidated Net Income for
such period, other than items that were accrued in the
ordinary course of business, in each case, on a consolidated
basis and determined in accordance with GAAP.
Notwithstanding the preceding sentence, clauses (1) and (3)
relating to amounts of a Restricted Subsidiary of a Person will be added to
Consolidated Net Income to compute Consolidated Cash Flow of such Person only
to the extent (and in the same proportion) that Net Income of such Restricted
Subsidiary was or would have been included in calculating the Consolidated Net
Income of such Person.
"Consolidated Net Income" means, with respect to any
specified Person for any period, the aggregate of the Net Income of such Person
and its Restricted Subsidiaries for such period, on a consolidated basis,
determined in accordance with GAAP; provided that:
(1) the Net Income (but not loss) of any Person that is not a
Restricted Subsidiary shall be included only to the extent of
the amount of dividends or distributions paid in cash to the
specified Person or a Wholly Owned Subsidiary thereof;
(2) the Net Income of any Restricted Subsidiary shall be excluded
to the extent that the declaration or payment of dividends or
similar distributions by such Restricted Subsidiary of such
Net Income is not at the date of determination permitted
without any prior governmental approval (that has not been
obtained) or, directly or indirectly, by operation of the
terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation
applicable to such Restricted Subsidiary, except to the
extent of dividends or distributions paid in accordance
therewith;
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(3) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of
such acquisition shall be excluded (it being understood,
however, that the acquisition of such Person may still be
considered for purposes of calculating the Fixed Charge
Coverage Ratio in accordance with the terms of the definition
thereof); and
(4) the cumulative effect of a change in accounting principles
shall be excluded.
"Consolidated Net Worth" means, with respect to any Person as
of any date the consolidated stockholders' equity of such Person and its
consolidated Subsidiaries as of such date, less (without duplication) amounts
attributable to Disqualified Stock of such Person.
"Consolidated Revenue" means, with respect to any specified
Person for any period, the aggregate revenue of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP.
"Continuing Directors" means, as of any date of
determination, any member of the Board of Directors of the Company who:
(1) was a member of such Board of Directors on the Issue Date
(together with individuals whose nomination for election to
the Board of Directors is or was recommended by Xxxxxx
Xxxxxx, Inc.); or
(2) was nominated for election or elected to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such
nomination or election.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, except that, with
respect to presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Trustee
at which, at any particular time, its corporate agency business shall be
conducted.
"Covenant Defeasance" has the meaning provided in Section
9.02(c).
"Credit Facilities" means, with respect to the Company or any
Restricted Subsidiary, one or more debt facilities or commercial paper
facilities, including, without limitation, the Senior Secured Credit Facility,
in each case with banks or other lenders providing for revolving credit loans,
term loans, receivables financing (including through the sale of receivables to
such lenders or to special purpose entities formed to borrow from such lenders
against such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced or refinanced in whole or in
part from time to time under existing or new Credit Facilities.
"Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or with the passage of
time or the giving of notice or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issued in
the form of one or more Global Securities, DTC or another Person designated as
Depositary by the Company, or a successor of the foregoing, which must be a
clearing agency registered under the Exchange Act.
"Disqualified Stock" means any Capital Stock that, by its
terms (or by the terms of any security into which it is convertible, or for
which it is exchangeable), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
is redeemable at the option of the
12
-7-
holder thereof, in whole or in part, on or prior to the date that is 91 days
after the date on which the Notes mature. Notwithstanding the preceding
sentence, any Capital Stock that would constitute Disqualified Stock solely
because the holders thereof have the right to require the Company to repurchase
such Capital Stock upon the occurrence of a change of control or an asset sale
shall not constitute Disqualified Stock if the terms of such Capital Stock
provide that the Company may not repurchase or redeem any such Capital Stock
pursuant to such provisions prior to the repurchase of all Notes as may be
required pursuant to the provisions contained in Sections 4.05 and 4.14 below.
"Domestic Subsidiary" means a Subsidiary that is organized
under the laws of the United States, any state thereof or the District of
Columbia.
"DTC" means The Depository Trust Company, its nominees and
their respective successors and assigns.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section
4.05(A).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute or statutes thereto.
"Exchange Offer" has the meaning provided in the Registration
Rights Agreement.
"Exchange Securities" means the 12 1/4% Senior Notes due
2007, Series B of the Company and warrants to purchase 74,750 shares of
Holdings, to be issued in exchange for the Initial Securities pursuant to the
Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and
its Restricted Subsidiaries in existence on the Issue Date.
"Final Maturity Date" means August 15, 2007.
"Fixed Charges" means, with respect to any Person for any
period, the sum, without duplication, of:
(1) the consolidated interest expense of such Person and its
Restricted Subsidiaries for such period, whether paid or
accrued and whether or not capitalized, including, without
limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capital Lease
Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers'
acceptance financings, and net payments, if any, pursuant to
Hedging Obligations; plus
(2) any interest expense on Indebtedness of another Person that
is Guaranteed by such Person or one of its Restricted
Subsidiaries or secured by a Lien on assets of such Person or
one of its Restricted Subsidiaries, to the extent such
interest is actually paid by such Person or one of its
Restricted Subsidiaries or such Lien is foreclosed upon; plus
(3) the product of (a) all cash dividend payments on any series
of preferred stock of such Person or any of its Restricted
Subsidiaries, other than dividend payments to the Company or
a Restricted Subsidiary of the Company, times (b) a fraction,
the numerator of which is one and the denominator of which is
one minus the then current combined federal, state and local
statutory tax
13
-8-
rate of such Person, expressed as a decimal, in each case, on
a consolidated basis and in accordance with GAAP.
"Fixed Charge Coverage Ratio" means, with respect to any
specified Person for any period, the ratio of the Consolidated Cash Flow of
such Person and its Restricted Subsidiaries for such period to the Fixed
Charges of such Person for such period. In the event that the specified Person
or any of its Restricted Subsidiaries incurs, assumes, repays or redeems any
Indebtedness (other than revolving credit borrowings) or issues or redeems
preferred stock or Disqualified Stock subsequent to the commencement of the
period for which the Fixed Charge Coverage Ratio is being calculated but prior
to the date on which the event for which the calculation of the Fixed Charge
Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage
Ratio shall be calculated giving pro forma effect to such incurrence,
assumption, repayment or redemption of Indebtedness (and the application of the
proceeds thereof), or such issuance or redemption of preferred stock or
Disqualified Stock, as if the same had occurred at the beginning of the
applicable four-quarter reference period.
In addition, for purposes of calculating the Fixed Charge
Coverage Ratio:
(1) acquisitions that have been made by the specified Person or
any of its Restricted Subsidiaries, including through mergers
or consolidations and including any related financing
transactions, during the four-quarter reference period or
subsequent to such reference period and on or prior to the
Calculation Date shall be deemed to have occurred on the
first day of the four-quarter reference period and
Consolidated Cash Flow for such reference period shall be
calculated without giving effect to clause (3) of the proviso
set forth in the definition of Consolidated Net Income;
(2) the Consolidated Cash Flow attributable to discontinued
operations, as determined in accordance with GAAP, and
operations or businesses disposed of prior to the Calculation
Date, shall be excluded; and
(3) the Fixed Charges attributable to discontinued operations, as
determined in accordance with GAAP, and operations or
businesses disposed of prior to the Calculation Date, shall
be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges will not be obligations of
the specified Person or any of its Restricted Subsidiaries
following the Calculation Date.
For the purpose of this definition, whenever pro forma effect
is to be given to an acquisition of assets, the amount of income or earnings
relating thereto and the amount of consolidated interest expense associated
with any Indebtedness incurred in connection therewith, or any other
calculation under this definition, the pro forma calculations will be
determined in good faith by a responsible financial or accounting officer of
the Company (including pro forma expense and cost reductions calculated on a
basis consistent with Regulation S-X under the Securities Act). If any
Indebtedness bears a floating rate of interest and is being given pro forma
effect, the interest expense on such Indebtedness will be calculated as if the
average rate for the period had been the applicable rate for the entire period
(taking into account any interest rate agreement applicable to such
Indebtedness).
"Foreign Borrowing Base" means, as of any date, an amount
equal to:
(1) 85% of the face amount of all accounts receivable (net of bad
debt reserves) owned by the Company's Foreign Subsidiaries as
of the end of the most recent fiscal quarter preceding such
date, calculated on a consolidated basis and in accordance
with GAAP; plus
(2) 50% of the orderly liquidation value of all property, plant
and equipment owned by the Company's Foreign Subsidiaries as
of the end of the most recent fiscal quarter preceding such
date; provided that such liquidation value shall be
determined by an appraisal of such property, plant and
equipment conducted by an independent appraisal firm of
national standing.
"Foreign Subsidiary" means any Subsidiary that is not a
Domestic Subsidiary.
14
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"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 have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Securities" means one or more Reg. S Global
Securities and 144A Global Securities.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States
is pledged and which have a remaining weighted average life to maturity of not
less than one year from the date of investment.
"guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by way of a
pledge of assets or through letters of credit or reimbursement agreements in
respect thereof, of all or any part of any Indebtedness.
"Guarantee" means the guarantee of the Obligations of the
Company with respect to the Securities by each Guarantor pursuant to the terms
of this Indenture, a form of which is attached hereto as part of Exhibit A and
Exhibit B.
"Guarantors" means each of:
(1) the Company's Domestic Subsidiaries other than Non-Guarantor
Subsidiaries; and
(2) any other subsidiary that executes a Subsidiary Guarantee;
and their respective successors and assigns.
"Hedging Obligations" means, with respect to any Person, the
obligations of such Person under:
(1) foreign currency exchange agreements, interest rate swap
agreements, interest rate cap agreements and interest rate
collar agreements; and
(2) other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency
exchange rates.
"Holder" means the registered holder of any Security.
"MAS Holding" means WFS Holdings, Inc., a Delaware
corporation.
"incur" has the meaning provided in Section 4.04.
"Indebtedness" means, with respect to any specified Person,
any indebtedness of such Person, without duplication:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect
thereof);
(3) in respect of banker's acceptances;
15
-10-
(4) representing Capital Lease Obligations;
(5) representing the deferred and unpaid purchase price of any
property, except any such balance that constitutes an accrued
expense or trade payable; or
(6) representing any Hedging Obligations,
if and to the extent any of the preceding items (other than reimbursement
obligations with regard to letters of credit and Hedging Obligations) would
appear as a liability upon a balance sheet of the specified Person prepared in
accordance with GAAP. In addition, the term "Indebtedness" includes all
Indebtedness referred to in clauses (1) through (6) above of other Persons
secured by a Lien on any asset of such Person (whether or not such Indebtedness
is assumed by such Person), the amount of such Indebtedness being deemed to be
the lesser of the fair market value of such property or asset and the amount of
the obligation so secured, and, to the extent not otherwise included, the
Guarantee by such Person of any Indebtedness of any other Person to the extent
of such Guarantee of such Indebtedness provided by such Person.
"Indenture" means this Indenture, as amended or supplemented
from time to time.
"Initial Purchasers" means, collectively, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation and Chase Securities, Inc., each an "Initial
Purchaser."
"Initial Securities" means the 12 1/4% Senior Notes due 2007,
Series A, of the Company and warrants to purchase 74,750 shares of common stock
of Holdings.
"Institutional Accredited Investor" means an institution that
is an "accredited investor" as that term is defined in Rule 501(a)(1), (2), (3)
or (7) under the Securities Act.
"Interest Payment Date" means each semiannual interest
payment date on February 15 and August 15 of each year, commencing February 15,
2000.
"Interest Record Date" for the interest payable on any
Interest Payment Date (except a date for payment of defaulted interest) means
the February 1 or August 1 (whether or not a Business Day), as the case may be,
immediately preceding such Interest Payment Date.
"Investments" means, with respect to any Person, all
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including guarantees of Indebtedness or other
obligations), advances or capital contributions (excluding commission, travel
and similar advances to officers and employees made in the ordinary course of
business), purchases or other acquisitions for consideration of Indebtedness,
Equity Interests or other securities of such other Persons, together with all
items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP but excluding extensions of trade credit in
the ordinary course of business. If the Company or any Restricted Subsidiary of
the Company sells or otherwise disposes of any Equity Interests of any direct
or indirect Restricted Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a Restricted
Subsidiary of the Company, the Company shall be deemed to have made an
Investment on the date of any such sale or disposition equal to the fair market
value of the Equity Interests of such Restricted Subsidiary not sold or
disposed of in an amount determined as provided in the penultimate paragraph of
Section 4.06.
"Issue Date" means August 12, 1999, the date of first
issuance of the Securities.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind on such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any agreement to give a security interest in and any filing
of any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction.
16
-11-
"Liquidated Damages" has the meaning provided in the
Registration Rights Agreement.
"Management Agreement" means the management agreement dated
March 31, 1999, by and between Xxxxxx Xxxxxx, Inc. and the Company, as amended
as of the Issue Date.
"Net Income" means, with respect to any Person, the net
income (loss) of such Person and its Restricted Subsidiaries, determined in
accordance with GAAP and before any reduction in respect of preferred stock
dividends, excluding, however (without duplication):
(1) any gain (or loss), together with any related provision for
taxes on such gain (or loss), realized in connection with:
(a) any Asset Sale; or (b) the disposition of any securities
by such Person or any of its Restricted Subsidiaries or the
extinguishment of any Indebtedness of such Person or any of
its Restricted Subsidiaries; and
(2) any extraordinary gain (or loss), together with any related
provision for taxes on such extraordinary gain (or loss).
"Net Proceeds" means the aggregate cash or Cash Equivalents
proceeds received by the Company or any of its Restricted Subsidiaries in
respect of any Asset Sale (including, without limitation, any cash or Cash
Equivalents (other than interest) received upon the sale or other disposition
of any non-cash consideration received in any Asset Sale), net of fees,
commissions, expenses and other direct costs relating to such Asset Sale,
including, without limitation, legal, accounting and investment banking fees,
and sales or brokerage commissions, and any relocation expenses and severance
costs incurred as a result thereof, taxes paid or payable as a result thereof,
in each case after taking into account any available tax credits or deductions
and any tax sharing arrangements and amounts required to be applied to the
repayment of Indebtedness, other than Indebtedness in respect of a Credit
Facility or any other Indebtedness secured by a Lien, as a result of such Asset
Sale, all distributions and other payments required to be made to minority
interest holders in Subsidiaries as a result of such Asset Sale, any reserve
for adjustment in respect of the sale price of such assets established in
accordance with GAAP and any reserves in accordance with GAAP against any
liabilities associated with such Asset Sale, including, without limitation,
pension and other post-employment benefit liabilities, liabilities related to
environmental matters and liabilities under any indemnification obligations
associated with such Asset Sale.
"Non-Guarantor Subsidiary" has the meaning provided in
Section 4.23.
"Non-Recourse Debt" means Indebtedness: (1) as to which
neither the Company nor any of its Restricted Subsidiaries (a) provides credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness), (b) is directly or indirectly liable as a
guarantor or otherwise, or (c) constitutes the lender or (2) pursuant to which
the lender has no recourse to any of the assets of the Company or any of its
Restricted Subsidiaries.
"Obligations" means any principal, interest, penalties, fees,
costs, expenses, indemnifications, reimbursements, damages and other
liabilities or amounts payable under the documentation governing any
Indebtedness.
"Offering" means the offer and sale of the Units, each
consisting of $1,000 principal amount of Notes and one warrant to purchase
0.575 of a share of common stock of Holdings, pursuant to the Offering
Memorandum.
"Offering Memorandum" means the offering memorandum dated
August 5, 1999, relating to the Offering.
"Officer" of any Person means the Chairman of the Board, the
President, any Executive Vice President, Senior Vice President or Vice
President (whether or not such title is preceded or followed by one or more
17
-12-
words or phrases), the Treasurer or any Assistant Treasurer or the Secretary or
any Assistant Secretary of such Person.
"Officers' Certificate" of any Person means a certificate
signed on behalf of such Person or the general partner, in the case of a
limited partnership, or member, in the case of a limited liability company, of
such Person by an Officer of such Person, that meets the requirements set forth
in Sections 13.04 and 13.05 of this Indenture.
"144A Global Security" means a permanent global security in
registered form representing the aggregate principal amount of Securities sold
in reliance on Rule 144A.
"Opinion of Counsel" means a written opinion from legal
counsel who is reasonably acceptable to the Company. The counsel may be an
employee of or counsel to the Company.
"Participant" has the meaning set forth in Section 2.15(a).
"Paying Agent" has the meaning provided in Section 2.03.
"Payment Default" has the meaning provided in Section
6.01(v)(a).
"Permitted Business" means the coordination, provision and
supervision of ground services to the aviation industry including, without
limitation, cargo services, ramp services, passenger services and technical and
industry services, and any business which is the same as or related, ancillary
or complementary thereto.
"Permitted Holder" means (a) Xxxxxx Xxxxxx Partners III,
L.P., a Delaware limited partnership ("CHP III"), any Person controlling,
controlled by, or under common control with, CHP III and any managed account
controlled by, or under common control with CHP III, (b) Xxxxxx Xxxxxx, Inc., a
Delaware corporation, and (c) employees, management and directors of any of the
foregoing, and any trust or individual retirement account for the benefit of
any such employees, management or directors, or members of their immediate
families and any Person controlled by any such employee, manager or director.
"Permitted Indebtedness" means, so long as no Default shall
have occurred and be continuing or would occur or be continuing immediately
after giving effect thereto, the incurrence of any of the following:
(1) the incurrence by the Company and any Restricted Subsidiary
of Indebtedness under one or more Credit Facilities; provided
that the aggregate principal amount of all Indebtedness of
the Company outstanding under all Credit Facilities after
giving effect to such incurrence does not exceed an amount
equal to the sum of (A) (1) $75.0 million less (2) (without
duplication) the aggregate amount applied by the Company or
any of its Subsidiaries since the Issue Date to repay
Indebtedness under a Credit Facility as a result of asset
dispositions which are required by this Indenture to be
accompanied by a corresponding permanent commitment
reduction, plus (B) additional Indebtedness incurred under
one or more Credit Facilities in an aggregate amount not
exceeding in the aggregate the amount of Indebtedness that is
permitted to be incurred, but has not been incurred, under
clauses (4) and (10) of this definition;
(2) the incurrence by the Company and its Subsidiaries of
Existing Indebtedness;
(3) the incurrence by the Company and (through the making of the
Subsidiary Guarantees) of the Guarantors of Indebtedness
represented by the Notes in an aggregate principal amount of
$130.0 million at any time outstanding;
(4) (a) Acquired Debt of the Company and its Restricted
Subsidiaries and (b) the incurrence by the Company or any of
its Restricted Subsidiaries of Indebtedness represented by
Capital Lease Obligations, mortgage financings or purchase
money obligations, in each case, incurred for the
18
-13-
purpose of financing all or any part of the purchase price or
cost of construction or improvement of property, plant or
equipment used in the business of the Company or such
Restricted Subsidiary; provided that the aggregate principal
amount at any time outstanding of all Indebtedness
outstanding under clauses (a) and (b) after giving effect to
such incurrence does not exceed $10.0 million (reduced by the
aggregate amount of additional Indebtedness incurred under
one or more Credit Facilities then in effect that represents
such additional Indebtedness under the immediately preceding
clause (1)(B)) (it being understood that any Indebtedness
incurred under this clause (4) shall, at the option of the
Company, cease to be deemed incurred or outstanding for
purposes of this clause (4) but shall be deemed to be
incurred under the first paragraph of Section 4.04 from and
after the first date on which the Company or such Restricted
Subsidiary could have incurred such Indebtedness under such
paragraph without reliance on this clause (4));
(5) the incurrence by the Company or any of its Restricted
Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to
refund, refinance or replace, Indebtedness (other than
intercompany Indebtedness) that was permitted by this
Indenture to be incurred under the first paragraph of Section
4.04 or clauses (2), (3) or (10) of this definition;
(6) the incurrence by the Company or any of its Restricted
Subsidiaries of intercompany Indebtedness between or among
the Company and any of its Restricted Subsidiaries; provided
that:
(a) if the Company or any Guarantor is the obligor on
such Indebtedness, such Indebtedness must be
expressly subordinated upon the occurrence and
during the continuation of an Event of Default, to
the prior payment in full in cash or Cash
Equivalents of all Obligations with respect to the
Notes, in the case of the Company, or the Subsidiary
Guarantee of such Guarantor, in the case of a
Guarantor; and
(b) (i) any subsequent issuance or transfer of Equity
Interests that results in any such Indebtedness
being held by a Person other than the Company or a
Restricted Subsidiary thereof and (ii) any sale or
other transfer of any such Indebtedness to a Person
that is other than the Company or a Restricted
Subsidiary thereof; shall be deemed, in each case,
to constitute an incurrence of such Indebtedness by
the Company or any such Restricted Subsidiary, as
the case may be, that was not permitted by this
clause (6) (provided that for purposes of this
clause (6), a pledge of Equity Interests under the
Credit Facilities shall not be considered a sale,
transfer or issuance of such Equity Interests);
(7) shares of preferred stock (or other Capital Stock having
preferential rights similar to preferred stock) of a
Restricted Subsidiary of the Company issued to the Company or
another Restricted Subsidiary of the Company; provided that
any subsequent event which results in any such Restricted
Subsidiary ceasing to be a Restricted Subsidiary of the
Company shall be deemed, in each case, to be an Investment by
the Company or any such Restricted Subsidiary in the issuer
of such preferred stock (or other Capital Stock having
preferential rights similar to preferred stock) (provided
that for purposes of this clause (7), a pledge of Equity
Interests under the Credit Facilities shall not be considered
a sale, transfer or issuance of such Equity Interests);
(8) the incurrence by the Company or any of its Restricted
Subsidiaries of Hedging Obligations that are incurred in the
ordinary course of business for the purpose of fixing or
hedging interest rate risk or foreign currency valuation
risk, but excluding Hedging Obligations entered into for
speculative purposes;
(9) (a) the guarantee by the Company or any of the Guarantors of
Indebtedness of the Company or any Restricted Subsidiary that
was permitted to be incurred by another provision of this
definition and (b) the guarantee by a Restricted Subsidiary
of the Company that is not a Guarantor of Indebtedness of any
other Restricted Subsidiary of the Company that is not a
Guarantor;
19
-14-
(10) the incurrence by the Company or any of its Restricted
Subsidiaries of additional Indebtedness in an aggregate
principal amount (or accreted value, as applicable) at any
time outstanding, including, without duplication, all
Permitted Refinancing Indebtedness incurred to refund,
refinance or replace any Indebtedness incurred pursuant to
this clause (10), not to exceed $10.0 million (reduced by the
aggregate amount of additional Indebtedness incurred under
one or more Credit Facilities then in effect that represents
such additional Indebtedness under the immediately preceding
clause (1)(B) (it being understood that any Indebtedness
incurred under this clause (10) shall, at the option of the
Company, cease to be deemed incurred or outstanding for
purposes of this clause (10) but shall be deemed to be
incurred for purposes of the first paragraph of Section 4.04
from and after the first date on which the Company or such
Restricted Subsidiary could have incurred such Indebtedness
under such paragraph without reliance on this clause (10));
(11) Indebtedness of the Company's Foreign Subsidiaries in an
aggregate principal amount at any time outstanding not to
exceed the Foreign Borrowing Base at the time of such
incurrence;
(12) the accrual of interest, accretion or amortization of
original issue discount, the payment of interest on any
Indebtedness in the form of additional Indebtedness with the
same terms, and the payment of dividends on Disqualified
Stock or preferred stock (or other Capital Stock having
preferential rights similar to preferred stock) in the form
of additional shares of the same class of Disqualified Stock
or preferred stock (or other Capital Stock having
preferential rights similar to preferred stock); provided, in
each such case, that the amount thereof is included in Fixed
Charges of the Company as accrued;
(13) Indebtedness in respect of standby letters of credit and
performance, surety and appeal bonds and completion
guarantees provided by the Company or any Restricted
Subsidiary in the ordinary course of business or pursuant to
self-insurance obligations and not in connection with the
borrowing of money or the obtaining of advances of credit;
(14) Indebtedness arising from agreements of the Company or a
Restricted Subsidiary providing for indemnification,
adjustment of purchase price or similar obligations, in each
case, incurred or assumed in connection with the disposition
of any business, assets or a Subsidiary, other than
guarantees of Indebtedness incurred by any Person acquiring
all or any portion of such business, assets or a Subsidiary
for the purpose of financing such acquisition; provided that
the maximum assumable liability in respect of the principal
amount of all such Indebtedness shall at no time exceed the
gross proceeds including noncash proceeds (the fair market
value of such noncash proceeds being measured at the time
received and without giving effect to any subsequent changes
in value) actually received by the Company and its Restricted
Subsidiaries in connection with such disposition; and
(15) Indebtedness arising from the honoring by a bank or other
financial institution of a check, draft or similar instrument
inadvertently drawn against insufficient funds in the
ordinary course of business; provided that such Indebtedness
is extinguished within five Business Days of incurrence.
"Permitted Investments" means:
(1) (a) any Investment in the Company or in a Guarantor or (b)
any Investment by a Restricted Subsidiary of the Company that
is not a Guarantor in another Restricted Subsidiary of the
Company that is not a Guarantor;
(2) any Investment in cash or Cash Equivalents;
(3) any Investment by the Company or any Restricted Subsidiary of
the Company in a Person, if as a result of such Investment:
20
-15-
(a) such Person becomes a Guarantor or, to the extent
such Investment is made by a Restricted Subsidiary
of the Company that is not a Guarantor, such Person
becomes a Restricted Subsidiary of the Company that
is not a Guarantor;
(b) such Person is merged, consolidated or amalgamated
with or into, or transfers or conveys substantially
all of its assets to, or is liquidated into, the
Company or a Guarantor, or to the extent such
Investment is made by a Restricted Subsidiary of the
Company that is not a Guarantor, such Person is
merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets
to, or is liquidated into, a Restricted Subsidiary
of the Company that is not a Guarantor;
(4) any Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to
and in compliance with Section 4.05;
(5) any acquisition of assets solely in exchange for the issuance
of Equity Interests (other than Disqualified Stock) of the
Company;
(6) Hedging Obligations;
(7) other Investments in any Unrestricted Subsidiary or in any
other Person engaged in a Permitted Business having an
aggregate fair market value (measured on the date each such
Investment was made and without giving effect to subsequent
changes in value), when taken together with all other
Investments made pursuant to this clause (7) since the Issue
Date, not to exceed $3.0 million at any time outstanding
(reduced, without duplication, by the amount of Investments
made pursuant to clause (10)(b) of this definition);
(8) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar
agreement upon the bankruptcy or insolvency of such trade
creditors or customers;
(9) Investments by the Company or any Guarantor in any Foreign
Subsidiary of the Company; provided that each Investment is
by means of an intercompany loan made by the Company or a
Guarantor to such Foreign Subsidiary; provided further that
the Indebtedness of such Foreign Subsidiary evidenced by such
intercompany loan shall not be contractually subordinated to
the prior payment of any other obligations for the payment of
money of such Foreign Subsidiary; and
(10) other Investments by the Company or any Guarantor in a
Foreign Subsidiary having an aggregate fair market value
(measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to
this clause (10) that are at the time outstanding, not to
exceed (a) 15% of Total Tangible Assets at the time of such
Investment plus (b) the amount of Investments that are
permitted to be made but have not been made under clause (7)
of this definition.
"Permitted Liens" means:
(1) Liens on any assets and property of the Company and its
Subsidiaries securing Indebtedness, guarantees of
Indebtedness and other Obligations under one or more Credit
Facilities permitted by clause (1) of the definition of
"Permitted Indebtedness;"
(2) Liens in favor of (a) the Company or the Guarantors or (b)
any Restricted Subsidiary that is not a Guarantor granted by,
and with respect to property or assets of, another Restricted
Subsidiary that is not a Guarantor;
21
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(3) Liens on property of a Person existing at the time such
Person is merged with or into or consolidated with the
Company or any Restricted Subsidiary of the Company; provided
that such Liens were not incurred in connection with or in
contemplation of, such merger or consolidation and do not
extend to any assets other than those of the Person merged
into or consolidated with the Company or the Restricted
Subsidiary;
(4) Liens on property existing at the time of acquisition thereof
by the Company or any Restricted Subsidiary of the Company,
provided that such Liens were not incurred in connection with
or in contemplation of such acquisition;
(5) Liens to secure the performance of statutory obligations
(including, without limitation, Liens of landlords, carriers,
warehousemen, mechanics, suppliers, materialmen and other
similar Liens imposed by law), surety or appeal bonds,
performance bonds or other obligations of a like nature
incurred in the ordinary course of business (or to secure
reimbursement obligations in respect of letters of credit
issued in connection with any of the foregoing obligations);
(6) Liens to secure Indebtedness (including Acquired Debt and
Capital Lease Obligations) permitted by clause (4) of the
definition of "Permitted Indebtedness" covering only the
assets acquired with such Indebtedness or such assets related
to the Acquired Debt;
(7) Liens existing on the Issue Date;
(8) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being
contested in good faith by appropriate proceedings promptly
instituted and diligently pursued, provided that any reserve
or other appropriate provision as shall be required in
conformity with GAAP shall have been made therefor;
(9) Liens on assets of Foreign Subsidiaries to secure
Indebtedness permitted by clause (11) of the definition of
"Permitted Indebtedness;"
(10) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with
respect to obligations that do not exceed the principal
amount of $10.0 million at any one time outstanding;
(11) Liens securing the Notes or the Subsidiary Guarantees, if any;
(12) Liens securing Permitted Refinancing Indebtedness, provided
that such Liens (a) are no less favorable to the Holders and
are not more favorable to the lienholders with respect to
such Liens than the Liens in respect of the Indebtedness
being refinanced, and (b) do not extend to or cover any
property or assets of the Company or any of its Restricted
Subsidiaries not securing the Indebtedness so refinanced;
(13) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, employment
insurance or other types of social security, including Liens
securing letters of credit issued in the ordinary course of
business or to secure the performance of tenders, statutory
obligations, surety and appeal bonds, bids, leases,
government contracts, performance and return-of-money bonds
and other similar obligations including those arising from
regulatory, contractual or warranty requirements of the
Company and its Subsidiaries, including rights of offset and
set-off (in each case exclusive of obligations for the
payment of borrowed money);
(14) Liens arising by reason of any judgment, decree or order of
any court not giving rise to an Event of Default, so long as
such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review
of such judgment, order or decree shall not
22
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have been finally terminated or the period with which such
proceedings may be initiated shall not have expired;
(15) Survey exceptions, easements, rights of way, zoning
restrictions and other restrictions on the use of property;
(16) Liens to secure Indebtedness permitted by clauses (8), (9)
and (10) of the definition of "Permitted Indebtedness;" and
(17) Any extension, renewal or replacement, in whole or in part,
of any Lien described in the foregoing clauses (1) through
(16); provided that any such extension, renewal or
replacement is no more restrictive in any material respect
than the Lien so extended, renewed or replaced and does not
extend to any additional property or assets.
"Permitted Refinancing Indebtedness" means any Indebtedness
or Disqualified Stock of the Company or any of its Restricted Subsidiaries
issued in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease or refund other Indebtedness or Disqualified
Stock of the Company or any of its Restricted Subsidiaries; provided that:
(1) the principal amount (or accreted value, if applicable) or
mandatory redemption amount of such Permitted Refinancing
Indebtedness does not exceed the principal amount of (or
accreted value, if applicable) or mandatory redemption
amount, plus accrued interest or dividends on, the
Indebtedness or Disqualified Stock so extended, refinanced,
renewed, replaced, defeased or refunded (plus the amount of
contractual prepayment charges and fees and expenses and
other amounts incurred in connection therewith);
(2) such Permitted Refinancing Indebtedness has a final maturity
or final redemption date no earlier than the final maturity
or final redemption date of, and has a Weighted Average Life
to Maturity equal to or greater than the Weighted Average
Life to Maturity of, the Indebtedness or Disqualified Stock
being extended, refinanced, renewed, replaced, defeased or
refunded;
(3) if the Indebtedness or Disqualified Stock being extended,
refinanced, renewed, replaced, defeased or refunded is
subordinated in right of payment to the Notes, such Permitted
Refinancing Indebtedness is subordinated in right of payment
to, the Notes on terms at least as favorable to the Holders
of Notes as those contained in the documentation governing
the Indebtedness or Disqualified Stock being extended,
refinanced, renewed, replaced, defeased or refunded; and
(4) such Indebtedness is incurred or Disqualified Stock is issued
either by the Company or by the Restricted Subsidiary who is
the obligor on the Indebtedness or Disqualified Stock being
extended, refinanced, renewed, replaced, defeased or
refunded.
"Person" means any individual, corporation, partnership,
joint venture, association, joint stock company, limited liability company,
trust, unincorporated association, government or any agency political
subdivision thereof or any other entity.
"Physical Securities" means one or more certificated
Securities in registered form.
"principal" of a debt security means the principal of the
security, plus, when appropriate, the premium, if any, on the security.
"Private Placement Legend" means the legend initially set
forth on the Initial Securities in the form set forth on Exhibit A hereto.
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"Public Equity Offering" means any underwritten public
offering of common stock (other than Disqualified Stock) pursuant to an
effective registration statement under the Securities Act, of any Equity
Interest of the Company or Holdings in which the gross proceeds to the Company
are at least $20.0 million.
"Purchase Agreement" has the meaning ascribed to such term in
the introductory paragraphs to this Indenture.
"Qualified Institutional Buyer" or "QIB" means a "qualified
institutional buyer" as that term is defined in Rule 144A.
"Redemption Date" when used with respect to any Security to
be redeemed, means the date fixed for such redemption pursuant to this
Indenture.
"redemption price" when used with respect to any Security to
be redeemed, means the price fixed for such redemption pursuant to this
Indenture as set forth in the form of Security annexed hereto as Exhibit A.
"Reg. S Global Security" means a global security in registered
form representing the aggregate principal amount of Securities sold pursuant to
Regulation S under the Securities Act.
"Registrar" has the meaning provided in Section 2.03.
"Registration" means a registered exchange offer for the
Securities by the Company or other registration of the Securities under the
Securities Act pursuant to and in accordance with the terms of the Registration
Rights Agreement.
"Registration Date" has the meaning provided in Section 4.12.
"Registration Rights Agreement" has the meaning ascribed to
such term in the introductory paragraphs to this Indenture.
"Related Business Assets" means any assets used or useful in a
Permitted Business.
"Related Party" with respect to any Permitted Holder means:
(1) a spouse or immediate family member (in the case of an
individual) of such Permitted Holder; or
(2) any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons
beneficially holding an 80% or more controlling interest of
which consist of such Permitted Holder and/or such other
Persons referred to in the immediately preceding clause (1).
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Investment" means an Investment other than a
Permitted Investment.
"Restricted Payment" has the meaning provided in Section 4.06.
"Restricted Security" has the meaning assigned to such term
in Rule 144(a)(3) under the Securities Act; provided that the Trustee shall be
entitled to request and conclusively rely on an Opinion of Counsel with respect
to whether or not any Security constitutes a Restricted Security.
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"Restricted Subsidiary" of a Person means any Subsidiary of
the relevant Person that is not an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"S&P" means Standard and Poor's Corporation.
"SEC" or "Commission" means the Securities and Exchange
Commission.
"Securities" means, collectively, the Initial Securities, the
Transfer Restricted Securities, the Unrestricted Securities and any Additional
Securities, in each instance, that are treated as a single class of securities,
as amended or supplemented from time to time in accordance with the terms of
this Indenture.
"Securities Act" means the Securities Act of 1933, as
amended, or any successor statute or statutes thereto.
"Senior Secured Credit Facility" means that certain Credit
Agreement, dated as of August 12, 1999, by and among Holdings, the Company, the
lenders named therein, The Chase Manhattan Bank, as administrative agent, and
DLJ Capital Funding, Inc., as syndication agent, providing for revolving credit
loans, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case
as amended, modified, supplemented, extended, renewed, restated, refunded,
replaced or refinanced from time to time, including any amendment,
modification, supplement, extension, renewal, restatement, refunding,
replacement or refinancing that increases the amount borrowable thereunder,
provided such Indebtedness could be incurred under this Indenture, or alters
the maturity thereof.
"Separation Date" means the earliest to occur of (i) 180 days
after the closing of the Offering, (ii) the date on which a registration
statement with respect to a registered exchange offer for the Notes is declared
effective under the Securities Act, (iii) the date on which a shelf
registration statement with respect to the Notes is declared effective under
the Securities Act, (iv) such date as the Initial Purchasers in their sole
discretion shall determine and (v) the occurrence of a Change of Control or an
Event of Default.
"Shelf Registration Statement" has the meaning provided in the
Registration Rights Agreement.
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Exchange Act, as such Regulation is in effect on
the date hereof.
"Stated Maturity" means, with respect to any installment of
principal on any series of Indebtedness, the date on which such payment of
principal was scheduled to be paid in the original documentation governing such
Indebtedness, and shall not include any contingent obligations to repay, redeem
or repurchase any such principal prior to the date originally scheduled for the
payment thereof.
"Subordinated Indebtedness" means any Indebtedness of the
Company (whether outstanding on the Issue Date or thereafter incurred) which is
subordinate or junior in right of payment to the Notes pursuant to a written
agreement.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of
which more than 50% of the total voting power of shares of
Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by such Person or one or
more of the other Subsidiaries of that Person (or a
combination thereof); and
25
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(2) any other Person of which at least a majority of the voting
interest (without regard to the occurrence of any
contingency) is at the time directly or indirectly owned by
such Person.
"Subsidiary Guarantee" means (a) that certain Subsidiary
Guarantee executed by the Guarantors in accordance with the delivery of the
Securities and (b) any supplemental indenture executed by Restricted
Subsidiaries of the Company pursuant to which such Subsidiaries became
Guarantors of the Company's Obligations under the Securities.
"TIA" means the Trust Indenture Act of 1939, as amended, as
in effect on the date of this Indenture (except as provided in Section 10.03)
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.
"Total Tangible Assets" means the total consolidated tangible
assets of the Company and its Restricted Subsidiaries determined in accordance
with GAAP and as shown on the most recent balance sheet of the Company.
"Transfer Restricted Securities" means the Transfer
Restricted Securities as defined in the Registration Rights Agreement and any
similar securities issued in compliance with Section 2.02 in accordance with
any other registration rights agreement.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor replaces it in accordance with
the provisions of this Indenture and thereafter means such successor.
"United States Government Obligations" means direct
non-callable obligations of the United States for the payment of which the full
faith and credit of the United States is pledged.
"United States 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.
"Units" means 130,000 units consisting of $130,000,000
aggregate principal amount of Notes and Warrants to purchase an aggregate of
74,750 shares of common stock of Holdings.
"Unrestricted Securities" means one or more Securities that
do not and are not required to bear the Private Placement Legend in the form
set forth in Exhibit A hereto, including, without limitation, the Exchange
Securities and any Securities registered under the Securities Act pursuant to
and in accordance with the Registration Rights Agreement.
"Unrestricted Subsidiary" means any Subsidiary of the Company
that is designated by the Board of Directors as an Unrestricted Subsidiary
pursuant to a Board Resolution, but only to the extent that such Subsidiary:
(1) has no Indebtedness other than Non-Recourse Debt;
(2) is not party to any agreement, contract, arrangement or
understanding with the Company or any Restricted Subsidiary
of the Company unless the terms of any such agreement,
contract, arrangement or understanding are no less favorable
to the Company or such Restricted Subsidiary than those that
might be obtained at the time from Persons who are not
Affiliates of the Company;
(3) is a Person with respect to which neither the Company nor any
of its Restricted Subsidiaries has any direct or indirect
obligation to (a) subscribe for additional Equity Interests
or (b) maintain or preserve such Person's financial condition
or to cause such Person to achieve any specified levels of
operating results; and
26
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(4) has not guaranteed or otherwise directly or indirectly
provided credit support for any Indebtedness of the Company
or any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Company as an
Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the
Trustee a certified copy of the Board Resolution giving effect to such
designation and an Officer's Certificate certifying that such designation
complied with the preceding conditions and was permitted by Section 4.06. If,
at any time, any Unrestricted Subsidiary fails to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an
Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of
the Company as of such date. If such Indebtedness is not permitted to be
incurred as of such date pursuant to Section 4.04, the Company shall be in
default of such covenant. The Board of Directors of the Company may at any time
designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided
that such designation shall be deemed to be an incurrence of Indebtedness by a
Restricted Subsidiary of the Company of any outstanding Indebtedness of such
Unrestricted Subsidiary and such designation shall only be permitted if (1)
such Indebtedness is permitted under Section 4.04, calculated on a pro forma
basis as if such designation had occurred at the beginning of the four-quarter
reference period; and (2) no Default or Event of Default would be in existence
immediately following such designation.
The Board of Directors of the Company may designate any
Subsidiary to be an Unrestricted Subsidiary if that designation would not cause
a Default to be continuing immediately after such designation. If a Subsidiary
is designated as an Unrestricted Subsidiary, all outstanding Investments owned
by the Company and its Restricted Subsidiaries in the Subsidiary so designated
will be deemed to be an Investment made as of the time of such designation and
will either reduce the amount available for Restricted Payments under the first
paragraph of Section 4.06 or reduce the amount available for future Investments
under one or more clauses of the definition of "Permitted Investments." All
such outstanding Investments will be valued at their fair market value at the
time of such designation. That designation will only be permitted if such
Restricted Payment would be permitted at that time and if such Restricted
Subsidiary otherwise meets the definition of an "Unrestricted Subsidiary." The
Board of Directors may redesignate any Unrestricted Subsidiary to be a
Restricted Subsidiary if the redesignation would not cause a Default to be
continuing immediately after such designation.
"Voting Stock" of any Person as of any date means the Capital
Stock of such Person that is at the time entitled to vote in the election of
the Board of Directors of such Person.
"Warrants" means warrants to purchase an aggregate of 74,750
shares of common stock of Holdings.
"Weighted Average 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 thereof, by
(b) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the
making of such payment; by
(2) the then outstanding principal amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person and/or by one or more Wholly Owned
Restricted Subsidiaries of such Person.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of
such Person, all of the outstanding capital stock or other ownership interests
of which (other than directors' qualifying shares) shall at the time be owned
by such Person and/or by one or more Wholly Owned Subsidiaries of such Person.
27
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SECTION 1.02 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities and the
Guarantees.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" with respect to the Securities means the Company, a
Guarantor or any other obligor on the Securities.
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:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted
accounting principles in effect from time to time, and any
other reference in this Indenture to "generally accepted
accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) references to sections of or rules under the Securities Act,
the Exchange Act, the TIA or any other applicable law shall
be deemed to include substitute, replacement or successor
sections or rules adopted by the SEC from time to time;
(7) references to any contract, instrument or agreement shall be
deemed to include any amendments, modifications or
supplements thereto; and
(8) "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.
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Form and Dating.
(1) General. The Initial Securities and the Trustee's certificate
of authentication thereof shall be substantially in the form
of Exhibit A hereto, which is hereby incorporated in and
expressly made a part of this Indenture. The Exchange
Securities and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit B
hereto, which is hereby incorporated in and expressly made a
part of this Indenture. The Securities may have notations,
legends or
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endorsements required by law, stock exchange rules or usage.
The Company shall approve the forms of the Securities and any
notation, legend or endorsement on them. The Securities shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Securities shall
constitute, and are hereby expressly made, a part of this
Indenture and the Company, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
However, to the extent any provision of the Securities or
Subsidiary Guarantee conflicts with the express provisions of
this Indenture, the provisions of this Indenture shall govern
and be controlling. Global Securities shall bear the legend
set forth in Exhibit C hereto. The aggregate principal amount
of the Global Securities may from time to time be increased
or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary, as hereinafter
provided.
(2) Global Securities. Each Global Security shall represent such
of the outstanding Exchange Securities as shall be specified
therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Exchange Securities
from time to time endorsed thereon and that the aggregate
principal amount of outstanding Exchange Securities
represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Security to reflect
the amount of any increase or decrease in the aggregate
principal amount of outstanding Exchange Securities
represented thereby shall be made by the Trustee or the
custodian, at the direction of the Trustee, in accordance
with written instructions given by the Holder thereof as
required by Section 2.06 hereof.
SECTION 2.02 Execution and Authentication.
One Officer shall sign the Securities of the Company by
manual or facsimile signature.
If such Officer whose signature is on a Security was an
Officer at the time of such execution but no longer holds that office at the
time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until an authorized signatory
of the Trustee manually signs the certificate of authentication on the
Security. Such signature shall be conclusive evidence that the Security has
been authenticated under this Indenture. A Security shall be dated the date of
its authentication.
The Trustee shall authenticate (i) Initial Securities issued
by the Company for original issue in an aggregate principal amount not to
exceed $300.0 million in one or more series; provided that the aggregate
principal amount of Initial Securities on the Issue Date shall not exceed
$130.0 million; and provided further that the Company complies with Section
4.04, (ii) upon cancellation of the Initial Securities issued by the Company,
Securities issued by the Company for original issue in an aggregate amount not
to exceed $300.0 million in one or more series; provided that the aggregate
principal amount of Exchange Securities on the date of exchange of Initial
Securities to Exchange Securities shall not exceed $130.0 million; and provided
further that the Company complies with Section 4.04, (iii) Transfer Restricted
Securities from time to time only in exchange for a like principal amount of
the same type of Initial Securities and (iv) Unrestricted Securities from time
to time (A) in exchange for a like principal amount of the same type of Initial
Securities or a like principal amount of the same type of Transfer Restricted
Securities or (B) as the Company may determine in accordance with this
Indenture, in each case upon a written order of the Company in the form of an
Officers' Certificate. Each such written order shall specify the amount of and
the type of Securities to be authenticated and the date on which the Securities
are to be authenticated, whether the Securities are to be Initial Securities,
Exchange Securities, Transfer Restricted Securities or Unrestricted Securities
and whether the Securities are to be issued as Physical Securities or Global
Securities and such other information as the Trustee may reasonably request.
The aggregate principal amount of Securities outstanding at any time may not
exceed $300.0 million, except as provided in Sections 2.07 and 2.08.
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In the event that the Company shall issue and the Trustee
shall authenticate any Securities issued under this Indenture subsequent to the
Issue Date pursuant to clauses (ii) and (iii) of the first sentence of the
immediately preceding paragraph, the Company shall use its reasonable best
efforts to obtain the same "CUSIP" number for such Securities as is printed on
the Securities outstanding at such time; provided that if any series of
Securities issued under this Indenture subsequent to the Issue Date is
determined, pursuant to an Opinion of Counsel of the Company in a form
reasonably satisfactory to the Trustee, to be a different class of security
than the Securities outstanding at such time for federal income tax purposes,
the Company may obtain a "CUSIP" number for such Securities that is different
than the "CUSIP" number printed on the Securities then outstanding.
Notwithstanding the foregoing, all Securities issued under
this Indenture shall vote and consent together on all matters (as to which any
of such Securities may vote or consent) as one class and no series of
Securities will have the right to vote or consent as a separate class on any
matter.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. Unless otherwise provided
in the appointment, an authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company and Affiliates of the Company.
The Securities shall be issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
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) Securities may be presented or
surrendered for registration of transfer or for exchange (the "Registrar"), (b)
Securities may be presented or surrendered for payment (the "Paying Agent") and
(c) notices and demands in respect of the Securities and this Indenture may be
served. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company, upon notice to the Trustee, may appoint one
or more co-Registrars and one or more additional Paying Agents. The term
"Paying Agent" includes any additional Paying Agent and the term "Registrar"
includes any co-Registrar. Except as provided herein, the Company or any
Guarantor may act as Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture, which shall incorporate the
provisions of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall promptly notify the
Trustee of the name and address of any such Agent. If the Company fails to
maintain a Registrar or Paying Agent, or fails to give the foregoing notice,
the Trustee shall act as such and shall be entitled to appropriate compensation
in accordance with Section 7.07.
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 Company initially appoints DTC to act as Depositary with
respect to the Global Securities. The Company may appoint a successor Registrar
and/or Paying Agent without prior notice to the Holders and the Company or any
of its Subsidiaries may act as Paying Agent or Registrar.
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 Securities, and shall notify
the Trustee of any Default by the Company 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 (if other than the
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Company), the Paying Agent shall have no further liability for such assets. If
the Company or any Guarantor or any of their respective Affiliates acts as
Paying Agent, it shall, on or before each due date of the principal of or
interest on the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its
action or failure so to act.
SECTION 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least five days before each Interest 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 Holders, which list may be conclusively relied upon by the
Trustee.
SECTION 2.06 Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when
Securities are presented to the Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the same
series, the Registrar shall register the transfer or make the exchange as
requested if its requirements for such transaction are met; provided that the
Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Securities (and
each of the Guarantors shall execute a Guarantee thereon) at the Registrar's
written request. No service charge shall be made 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 payable by the transferor of such Securities (other than any such
transfer taxes or other governmental charge payable upon exchanges or transfers
pursuant to Section 2.10, 3.06, 4.05, 4.14 or 10.05). The Registrar shall not
be required to register the transfer or exchange of any Security (i) during a
period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities and ending at the close of business on the
day of such mailing and (ii) selected for redemption in whole or in part
pursuant to Article Three hereof, except the unredeemed portion of any Security
being redeemed in part.
Prior to the registration of any transfer by a Holder as
provided herein, the Company, the Trustee and any Agent shall treat the Person
in whose name the Security is registered as the owner thereof for all purposes
whether or not the Security shall be overdue, and neither the Company, the
Trustee nor any Agent shall be affected by notice to the contrary. Any Holder
of a beneficial interest in a Global Security shall, by acceptance of such
beneficial interest in a Global Security, agree that transfers of beneficial
interests in such Global Security may be effected only through a book-entry
system maintained by the Depositary (or its agent), and that ownership of a
beneficial interest in a Global Security shall be required to be reflected in a
book entry.
SECTION 2.07 Replacement Securities.
If evidence of a mutilated Security is surrendered to the
Trustee or if the Holder of a Security claims that the Security has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements for
replacement of Securities are met. If required by the Company or the Trustee,
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 and any Agent from any loss which any of them may suffer if a Security
is replaced. The Company may charge such Holder for its reasonable expenses in
replacing a Security, including reasonable fees and expenses of counsel.
Every replacement Security is an additional obligation of the
Company and the Guarantors.
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SECTION 2.08 Outstanding Securities.
Securities outstanding at any time are all the Securities
that have been authenticated by the Trustee except those canceled by it, those
delivered to it for cancellation and those described in this Section 2.08 as
not outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07 (other
than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser. A mutilated Security ceases
to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date, Asset Sale Offer Payment Date or the
Final Maturity Date the Paying Agent holds money sufficient to pay all of the
principal and interest due on the Securities payable on that date, and is not
prohibited from paying such money to the Holders pursuant to the terms of this
Indenture, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue.
SECTION 2.09 Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company, a Guarantor, or any of their Affiliates 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 Securities that a Responsible Officer of the Trustee actually knows are so
owned shall be disregarded.
The Company shall promptly notify the Trustee, in writing,
when the Company, a Guarantor or any of their Affiliates repurchases or
otherwise acquires Securities and of the aggregate principal amount of such
Securities so repurchased or otherwise acquired.
SECTION 2.10 Temporary Securities.
Until definitive Securities are ready for delivery, the
Company may prepare and the Trustee shall authenticate temporary Securities
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
Securities to be authenticated and the date on which the temporary Securities
are to be authenticated.
Temporary Securities shall be substantially in the form of
definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate upon receipt of a written
order of the Company pursuant to Section 2.02 definitive Securities in exchange
for temporary Securities. Holders of temporary Securities shall be entitled to
the benefits of this Indenture.
SECTION 2.11 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for 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, dispose of and deliver evidence of such disposal of all Securities
surrendered for transfer, exchange, payment or cancellation. Subject to Section
2.07, the Company may not issue new Securities to replace Securities that it
has paid or delivered to the Trustee for cancellation. If the Company or any
Guarantor shall acquire any of the Securities, such acquisition shall not
operate as a redemption or satisfaction of the Indebtedness represented by such
Securities unless and until the same are surrendered to the Trustee for
cancellation pursuant to this Section 2.11.
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SECTION 2.12 Defaulted Interest.
After giving effect to any applicable grace period, the
Company shall pay interest on overdue principal from time to time on demand at
the applicable rate of interest then borne by the Securities. The Company
shall, to the extent lawful, pay interest on overdue installments of interest
(without regard to any applicable grace periods) at the rate of interest then
borne by the Securities.
If the Company defaults in a payment of interest on the
Securities, it shall 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
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.
Notwithstanding the foregoing, any interest which is paid
prior to the expiration of the 30-day period set forth in Section 6.01(i) shall
be paid to Holders as of the Interest Record Date for the Interest Payment Date
for which interest has not been paid.
SECTION 2.13 CUSIP Number.
The Company in issuing the Securities will use a "CUSIP"
number and the Trustee shall use the CUSIP number 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 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 shall promptly notify the Trustee of any changes in CUSIP numbers.
SECTION 2.14 Deposit of Moneys.
Prior to 10:00 a.m., New York time, on each Interest Payment
Date, Redemption Date, Asset Sale Offer Payment Date and the Final Maturity
Date, the Company shall deposit with the Paying Agent in immediately available
funds money sufficient to make cash payments, if any, due on such Interest
Payment Date, Redemption Date, Asset Sale Offer Payment Date or Final Maturity
Date, as the case may be, in a timely manner which permits the Paying Agent to
remit payment to the Holders on such Interest Payment Date, Redemption Date,
Asset Sale Offer Payment Date or Final Maturity Date, as the case may be.
SECTION 2.15 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be
registered in the name of the Depositary or the nominee of such Depositary,
(ii) be delivered to the Trustee as custodian for such Depositary and (iii)
bear legends as set forth in Exhibit C.
Members of, or participants in, the Depositary
("Participants") shall have no rights under this Indenture with respect to any
Global Security held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and Participants, the operation of
customary practices governing the exercise of the rights of a beneficial holder
of any Security.
(b) Transfers of Global Securities shall be limited to
transfers in whole, but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in the Global Securities
may be transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depositary
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and the provisions of Section 2.16; provided that Physical Securities shall be
transferred to all beneficial owners in exchange for their beneficial interests
in Global Securities if (i) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for any Global Security and a
successor Depositary is not appointed by the Company within 90 days of such
notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a request from the Depositary to issue Physical
Securities.
(c) In connection with the transfer of Global Securities
as an entirety to beneficial owners pursuant to paragraph (b) of this Section
2.15, the Global Securities shall be deemed to be surrendered to the Trustee
for cancellation, and the Company shall execute, and the Trustee shall upon
written instructions from the Company authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interest in the Global Securities, an equal aggregate principal amount of
Physical Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted
Security delivered in exchange for an interest in a Global Security pursuant to
paragraph (b) of this Section 2.15 shall, except as otherwise provided by
Section 2.16, bear the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies
and otherwise authorize any Person, including Participants and Persons that may
hold interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16 Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When
Physical Securities are presented to the Registrar with a request:
(i) to register the transfer of the Physical Securities;
or
(ii) to exchange such Physical Securities for an equal
principal amount of Physical Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set forth in this Section 2.16 for
such transactions are met; provided that the Physical Securities presented or
surrendered for Registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to the
Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(II) in the case of Physical Securities the offer
and sale of which have not been registered under the
Securities Act, such Physical Securities shall be
accompanied, in the sole discretion of the Company, by the
following additional information and documents, as
applicable:
(A) if such Physical Security is being delivered to the
Registrar by a Holder for Registration in the name
of such Holder, without transfer, a certification
from such Holder to that effect (substantially in
the form of Exhibit D hereto); or
(B) if such Physical Security is being transferred to a
QIB in accordance with Rule 144A, a certification to
that effect (substantially in the form of Exhibit D
hereto); or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the
form of Exhibit D hereto) and a transferee letter of
representation substantially in the form of Exhibit
E hereto and, at
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the option of the Company, an Opinion of Counsel
reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the
Securities Act; or
(D) if such Physical Security is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and,
at the option of the Company, an Opinion of Counsel
reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the
Securities Act; or
(E) if such Physical Security is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and, at the option of the Company, an
Opinion of Counsel reasonably acceptable to the
Company to the effect that such transfer is in
compliance with the Securities Act.
(b) Restrictions on Transfer of a Physical Security for
a Beneficial Interest in a Global Security. A Physical Security, the offer and
sale of which has not been registered under the Securities Act, may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Registrar
of a Physical Security, duly endorsed or accompanied by appropriate instruments
of transfer, in form satisfactory to the Registrar, together with:
(A) certification, substantially in the form of Exhibit
D hereto, that such Physical Security is being
transferred (I) to a QIB or (II) to an Institutional
Accredited Investor or (III) in a transaction
otherwise exempt from registration under the
Securities Act and, with respect to (II) or (III),
at the option of the Company, an Opinion of Counsel
reasonably acceptable to the Company to the effect
that such transfer is in compliance with the
Securities Act; and
(B) written instructions directing the Registrar to
make, or to direct the Depositary to make, an
endorsement on the applicable Global Security to
reflect an increase in the aggregate amount of the
Securities represented by the Global Security,
then the Registrar shall cancel such Physical Security and cause, or direct the
Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the principal
amount of Securities represented by the applicable Global Security to be
increased accordingly. If no Global Security is then outstanding, the Company
shall, unless either of the events in the proviso to Section 2.15(b) have
occurred and are continuing, issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate
such a Global Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The
transfer and exchange of Global Securities or beneficial interests therein
shall be effected through the Depositary in accordance with this Indenture
(including the restrictions on transfer set forth herein) and the procedures of
the Depositary therefor. Upon receipt by the Registrar of written instructions,
or such other instruction as is customary for the Depositary, from the
Depositary or its nominee, requesting the Registration of transfer of an
interest in a Global Security to another type of Global Security, together with
the applicable Global Securities (or, if the applicable type of Global Security
required to represent the interest as requested to be transferred is not then
outstanding, only the Global Security representing the interest being
transferred), the Registrar shall cancel such Global Securities (or Global
Security) and the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.02, authenticate new
Global Securities of the types so canceled (or the type so canceled and
applicable type required to represent the interest as requested to be
transferred) reflecting the applicable increase and decrease of the principal
amount of Securities represented by such types of Global Securities, giving
effect to such transfer. If the applicable type of Global Security required to
represent the interest as requested to be transferred is not outstanding at the
time of such request, the Company shall issue and the Trustee shall, upon
written instructions
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from the Company in accordance with Section 2.02, authenticate a new Global
Security of such type in principal amount equal to the principal amount of the
interest requested to be transferred.
(d) Transfer of a Beneficial Interest in a Global
Security for a Physical Security.
(i) Any Person having a beneficial interest in
a Global Security may upon request exchange such beneficial interest for a
Physical Security; provided that prior to the Registration, a transferee that is
a QIB or Institutional Accredited Investor may not exchange a beneficial
interest in a Global Security for a Physical Security. Upon receipt by the
Registrar of written instructions, or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee on behalf of
any Person (subject to the previous sentence) having a beneficial interest in a
Global Security and upon receipt by the Trustee of a written order or such other
form of instructions as is customary for the Depositary or the Person designated
by the Depositary as having such a beneficial interest containing registration
instructions and, in the case of any such transfer or exchange of a beneficial
interest in Securities the offer and sale of which have not been registered
under the Securities Act, the following additional information and documents:
(A) if such beneficial interest is being transferred in
reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and,
at the option of the Company, an Opinion of Counsel
reasonably satisfactory to the Company to the effect
that such transfer is in compliance with the
Securities Act; or
(B) if such beneficial interest is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
D hereto) and, at the option of the Company, an
Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in
compliance with the Securities Act,
then the Registrar will cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the aggregate
principal amount of the applicable Global Security to be reduced and, following
such reduction, the Company will execute and, upon receipt of an authentication
order in the form of an Officers' Certificate in accordance with Section 2.02,
the Trustee will authenticate and deliver to the transferee a Physical Security
in the appropriate principal amount.
(ii) Securities issued in exchange for a
beneficial interest in a Global Security pursuant to this Section 2.16(d) shall
be registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Registrar in writing. The Registrar shall deliver
such Physical Securities to the Persons in whose names such Physical Securities
are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture, a Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
(f) Private Placement Legend. Upon the transfer,
exchange or replacement of Securities not bearing the Private Placement Legend,
the Registrar shall deliver Securities that do not bear the Private Placement
Legend. Upon the transfer, exchange or replacement of Securities bearing the
Private Placement Legend, the Registrar shall deliver only Securities that bear
the Private Placement Legend unless, and the Trustee is hereby authorized to
deliver Securities without the Private Placement Legend if, (i) there is
delivered to the Trustee an Opinion of Counsel reasonably satisfactory to the
Company and the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the
provisions of the
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Securities Act; (ii) such Security has been sold pursuant to an effective
registration statement under the Securities Act (including pursuant to a
Registration) to a person who is not an Affiliate of the Issuer; or (iii) the
date of such transfer, exchange or replacement is two years after the later of
(x) the Issue Date and (y) the last date that the Company or any affiliate (as
defined in Rule 144 under the Securities Act) of the Company was the owner of
such Securities (or any predecessor thereto).
(g) General. By its acceptance of any Security bearing
the Private Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
the Private Placement Legend and agrees that it will transfer such Security
only as provided in this Indenture.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of
any interest in any Security (including any transfers between or among
Participants or beneficial owners of interest in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
The Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.15 or this Section
2.16. The Company shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon
the giving of reasonable prior written notice to the Registrar.
SECTION 2.17 Issuance of Additional Securities.
The Company shall be entitled, subject to its compliance with
the covenants contained in Section 4.04, to issue Additional Securities under
this Indenture which shall have identical terms as the Initial Securities
issued on the Issue Date, other than with respect to the date of issuance,
issue price and amount of interest payable on the first payment date applicable
thereto (and, if such Additional Securities shall be issued in the form of
Physical Securities or Global Securities, other than with respect to transfer
restrictions). The Initial Securities issued on the Issue Date, any Additional
Securities and all Exchange Securities issued in exchange therefor shall be
treated as a single class for all purposes under this Indenture.
With respect to any Additional Securities, the Company shall
set forth in a resolution of the Board of Directors of the Company and an
Officers' Certificate, a copy of each of which shall be delivered to the
Trustee, the following information:
(1) the aggregate principal amount of such Additional Securities
to be authenticated and delivered pursuant to this Indenture;
(2) the issue price, the issue date, the CUSIP and/or ISIN number
of such Additional Securities and the amount of interest
payable on the first payment date applicable thereto;
provided that no Additional Securities may be issued at a
price that would cause such Additional Securities to have
"original issue discount" within the meaning of Section 1273
of the Internal Revenue Code of 1986, as amended; and
(3) whether such Additional Securities shall be Physical
Securities or Global Securities and issued in the form of
Initial Securities or shall be issued in the form of Exchange
Securities.
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ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee.
If the Company wants to redeem Securities pursuant to
paragraph 7 or 8 of the Securities at the applicable redemption price set forth
thereon, it shall notify the Trustee in writing of the Redemption Date and the
principal amount of Securities to be redeemed, together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein.
SECTION 3.02 Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed at any
time, the Trustee will select Securities for redemption as follows:
(1) if the Securities are listed, in compliance with the
requirements of the principal national securities exchange on
which the Securities are listed; or
(2) if the Securities are not so listed, on a pro rata basis, by
lot or by such method as the Trustee shall deem appropriate.
No Securities of $1,000 or less shall be redeemed in part.
Notices of redemption shall be mailed by first class mail at least 30 but not
more than 60 days before the redemption date to each Holder to be redeemed at
its registered address. Notices of redemption may not be conditional.
If any Security is to be redeemed in part only, the notice of
redemption that relates to that Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion of the original Security will be issued in the
name of the Holder thereof upon cancellation of the original Security.
Securities called for redemption become due on the date fixed for redemption.
On and after the redemption date, interest ceases to accrue on Securities or
portions of them called for redemption.
SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a
Redemption Date, the Company shall mail a notice of redemption by first-class
mail to each Holder whose Securities are to be redeemed at such Holder's
registered address.
Each notice of redemption shall identify the Securities to be
redeemed (including the CUSIP number thereon) and shall state:
(1) the paragraph of the Securities pursuant to which the
Securities are being redeemed;
(2) the Redemption Date;
(3) the redemption price;
(4) the name and address of the Paying Agent to which the
Securities are to be surrendered for redemption;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
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(6) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases
to accrue on and after the Redemption Date and the only
remaining right of the Holders is to receive payment of the
redemption price upon surrender to the Paying Agent; and
(7) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that,
after the Redemption Date, upon surrender of such Security, a
new Security or Securities in principal amount equal to the
unredeemed portion thereof will be issued.
At the Company's written request, the Trustee shall give the
notice of redemption on behalf of the Company, in the Company's name and at the
Company's expense; provided that the Company shall give notice of redemption to
the Trustee at least 10 days before the date the notice of redemption is
requested by the Company to be mailed to the Holders (unless a shorter notice
period shall be agreed to by the Trustee in writing).
SECTION 3.04 Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the redemption
price. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon, if any, to the Redemption
Date, but interest installments whose maturity is on or prior to such
Redemption Date shall be payable to the Holders of record at the close of
business on the relevant Interest Record Date. The Trustee or Paying Agent
shall promptly return to the Company any money deposited with the Trustee or
the Paying Agent by the Issuers in excess of the amount necessary to pay the
redemption price of, and accrued and unpaid interest on, all Securities to be
redeemed.
SECTION 3.05 Deposit of Redemption Price.
Prior to 10:00 a.m., New York time, on the Redemption Date,
the Company shall deposit with the Paying Agent (or if the Company is Paying
Agent, shall, on or before the Redemption Date, segregate and hold in trust)
money sufficient to pay the redemption price of and accrued interest, if any,
on all Securities to be redeemed on that date other than Securities or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Securities or the portions of Securities called for redemption. If a
Security is redeemed on or after an Interest Record Date but on or prior to the
related Interest Payment Date, then any accrued and unpaid interest shall be
paid to the person in whose name such Security was registered at the close of
business on such record date. Upon surrender of a Security for redemption in
accordance with the notice given pursuant to Section 3.03 hereof, such Security
shall be purchased by the Company at the redemption price, together with
accrued and unpaid interest to the redemption date.
If any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid on the Redemption Date due to
the failure of the Company to deposit with the Paying Agent money sufficient to
pay the redemption price thereof, the principal and accrued and unpaid
interest, if any, thereon shall, until paid or duly provided for, bear interest
as provided in Sections 2.12 and 4.01 with respect to any payment default.
SECTION 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall issue and the Trustee shall authenticate for the Holder a new
Security equal in principal amount to the unredeemed portion of the Security
surrendered.
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SECTION 3.07 Optional Redemption.
(a) At any time prior to August 15, 2002, the Company
may on any one or more occasions redeem up to 35% of the aggregate principal
amount of Securities originally issued under this Indenture at a redemption
price of 112.250% of the principal amount thereof, plus accrued and unpaid
interest to the redemption date, with the net cash proceeds of one or more
Public Equity Offerings; provided that
(1) at least 65% of the aggregate principal amount of
Securities issued on the Issue Date remains outstanding immediately
after the occurrence of each such redemption (excluding Securities
held by the Company and its Subsidiaries); and
(2) each such redemption must occur within 90 days of the
date of the closing of such Public Equity Offering.
(b) Except as set forth in paragraph (a) of this Section
3.07, the Securities will not be redeemable at the Company's option prior to
August 15, 2003. After August 15, 2003, the Company may redeem the Securities,
in whole or from time to time in part, upon not less than 30 nor more than 60
days' notice, at the redemption prices (expressed as percentages of principal
amount) set forth below plus accrued and unpaid interest thereon, if any, to
the applicable redemption date, if redeemed during the twelve-month period
beginning on August 15 of the years indicated below:
YEAR PERCENTAGE
2003................................................. 106.125%
2004................................................. 104.594%
2005................................................. 103.063%
2006................................................. 101.531%
2007 and thereafter.................................. 100.000%
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the principal of and interest on (and
to the extent applicable, any Liquidated Damages with respect to) the
Securities in the manner provided in the Securities and the Registration Rights
Agreement. An installment of principal or interest shall be considered paid on
the date due if the Trustee or Paying Agent (other than the Company, a
Guarantor or any of their respective Affiliates) holds on that date money
designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders pursuant to the terms of this
Indenture.
The Company shall pay cash interest on overdue principal and
on overdue installments of interest at the same rate per annum borne by the
applicable Securities, to the extent lawful, as provided in Section 2.12.
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 prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in
Section 13.02. The Company hereby initially designates the Trustee at its
address set forth in Section 13.02 as its office or agency in the Borough of
Manhattan, The City of New York, for such purposes.
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SECTION 4.03 Limitations on Transactions with Affiliates.
(A) The Company will not, and will not permit any of its
Restricted Subsidiaries to sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or make or amend any transaction, contract, agreement, understanding,
loan, advance or guarantee with, or for the benefit of, any Affiliate (each, an
"Affiliate Transaction"), unless:
(1) such Affiliate Transaction is on terms that are no less
favorable to the Company or such Restricted Subsidiary than
those that would have been obtained in a comparable
transaction by the Company or such Restricted Subsidiary with
an unrelated Person; and
(2) the Company delivers to the Trustee:
(a) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving
aggregate consideration in excess of $2.5 million, a
resolution of the Board of Directors set forth in an
Officer's Certificate certifying that such Affiliate
Transaction or series of related Affiliate
Transactions complies with this covenant and that
such Affiliate Transaction or series of related
Affiliate Transactions has been approved by a
majority of the disinterested members of the Board
of Directors; and
(b) with respect to any Affiliate Transaction or series
of related Affiliate Transactions involving
aggregate consideration in excess of $10.0 million,
an opinion as to the fairness to the Company or such
Restricted Subsidiary, as the case may be, of such
Affiliate Transaction or series of related Affiliate
Transactions from a financial point of view issued
by an accounting, appraisal or investment banking
firm of national standing.
(B) The following items shall not be deemed to be
Affiliate Transactions and, therefore, will not be subject to the provisions of
the prior paragraph:
(1) any employment, consulting, stock option, stock repurchase,
employee benefit, indemnification, compensation (including
the payment of reasonable and customary fees to Directors of
the Company or any of its Restricted Subsidiaries who are not
employees of any such Person), business expense reimbursement
or other employee-related agreements, arrangements or plans
entered into by the Company or any of its Restricted
Subsidiaries in the ordinary course of business;
(2) transactions between or among the Company and its Restricted
Subsidiaries;
(3) any agreement, including, without limitation, the Management
Agreement (provided that all obligations of the Company under
the Management Agreement are subordinated to the prior
payment in full in cash or Cash Equivalents of all
Obligations with respect to the Notes upon the occurrence and
during the continuation of an Event of Default), as in effect
as of the Issue Date or any amendment thereto or any
transaction contemplated thereby (including pursuant to any
amendment thereto) or any replacement agreement thereto so
long as any such amendment or replacement agreement is not
materially more disadvantageous to the Holders taken as a
whole than the original agreements as in effect on the Issue
Date;
(4) the entering into, and any payment pursuant to, any
tax-sharing agreement existing at the time of such payment
between the Company and any other Person with which it files
a consolidated tax return or with which the Company is part
of a consolidated group for tax purposes, provided that any
such payment relates solely to taxes and, in each case, is
not in excess of the tax liability that would have been
payable by the Person making such payment on a stand-alone
basis;
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(5) payment by the Company or any of its Restricted Subsidiaries
to Xxxxxx Xxxxxx, Inc. of fees for advisory services in
connection with financings, acquisitions or divestitures or
other investment banking activities upon terms no less
favorable than the Company or any of its Restricted
Subsidiaries could obtain from a nationally recognized
investment banking firm for a comparable transaction, in each
case, which fees pursuant to this clause (5) are approved by
a majority of the Board of Directors in good faith; and
(6) Restricted Payments that are permitted by Section 4.06(B).
SECTION 4.04 Limitation on Incurrence of Additional Indebtedness and
Issuance of Preferred Stock.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, issue,
assume, guarantee or otherwise become directly or indirectly liable,
contingently or otherwise, with respect to (collectively, "incur") any
Indebtedness (including Acquired Debt) and the Company will not issue any
Disqualified Stock and will not permit any of its Restricted Subsidiaries to
issue any shares of preferred stock; provided that the Company and any
Guarantor may incur Indebtedness (including Acquired Debt) or issue
Disqualified Stock or preferred stock (or other Capital Stock having
preferential rights similar to preferred stock) if the Fixed Charge Coverage
Ratio for the Company's most recently ended four full fiscal quarters for which
internal financial statements are available immediately preceding the date on
which such additional Indebtedness is incurred or such Disqualified Stock or
preferred stock (or other Capital Stock having preferential rights similar to
preferred stock) is issued would have been at least 2.0 to 1, determined on a
pro forma basis (including a pro forma application of the net proceeds
therefrom), as if such additional Indebtedness had been incurred, or such
Disqualified Stock or preferred stock (or other Capital Stock having
preferential rights similar to preferred stock) had been issued, as the case
may be, at the beginning of such four-quarter period.
Notwithstanding the foregoing, the provisions set forth in
the immediately preceding paragraph will not prohibit the Company or any
Restricted Subsidiary to incur Permitted Indebtedness.
For purposes of determining compliance with this Section
4.04, in the event that an item of proposed Indebtedness meets the criteria of
more than one of the categories of Permitted Indebtedness, or is entitled to be
incurred pursuant to the first paragraph of this Section 4.04, the Company
will, in its sole discretion, be permitted to classify such item of
Indebtedness on the date of its incurrence in any manner that complies with
this Section 4.04. Indebtedness under Credit Facilities outstanding on the
Issue Date shall be deemed to have been incurred on such date in reliance on
the exception provided by clause (1) of the definition of "Permitted
Indebtedness" in Section 1.01. Subject to the other terms of this Indenture,
any Indebtedness incurred in accordance with this covenant may be incurred
under the Credit Facilities.
For purposes of this Section 4.04, "Acquired Debt" shall be
deemed to have been incurred by the Company or one of its Restricted
Subsidiaries, as the case may be, at the time an acquired Person becomes a
Restricted Subsidiary (or is merged into the Company or any of its Restricted
Subsidiaries) or at the time of the acquisition of assets, as the case may be;
and, to avoid duplication, guarantees, Liens, letters of credit or other
obligations supporting Indebtedness otherwise included in the determination of
any particular amount of Indebtedness under this Section 4.04 shall not be
included.
For purposes of determining compliance with any U.S.
dollar-denominated restriction on the incurrence of Indebtedness, the U.S.
dollar-equivalent principal amount of Indebtedness denominated in a foreign
currency shall be calculated based on the relevant currency exchange rate in
effect on the date such Indebtedness was incurred, in the case of term
Indebtedness, or first committed, in the case of revolving credit Indebtedness;
provided that if such Indebtedness is incurred to refinance other Indebtedness
denominated in a foreign currency, and such refinancing would cause the
applicable U.S. dollar-denominated restriction to be exceeded if calculated at
the relevant currency exchange rate in effect on the date of such refinancing,
such U.S. dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such refinancing Indebtedness does
not exceed the principal amount of such Indebtedness being refinanced. The
principal amount of any Indebtedness incurred to refinance other Indebtedness,
if incurred in a different currency from the Indebtedness
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being refinanced, shall be calculated based on the currency exchange rate
between the currency in which such Permitted Refinancing Indebtedness is
denominated and the currency applicable to the Indebtedness being refinanced
that is in effect on the date of such refinancing.
SECTION 4.05 Limitation on Asset Sales.
(A) The Company will not, and will not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale unless:
(1) the Company (or such Restricted Subsidiary) receives
consideration at the time of such Asset Sale (without giving
effect to subsequent changes in value) at least equal to the
fair market value of the assets or Equity Interests issued or
sold or otherwise disposed of;
(2) with respect to any such Asset Sale involving aggregate
consideration in excess of $2.5 million, such fair market
value is determined by the Company's Board of Directors and
evidenced by a resolution of the Board of Directors set forth
in an Officer's Certificate delivered to the Trustee; and
(3) at least 75% of the consideration therefor received by the
Company or such Restricted Subsidiary is in the form of cash
or Cash Equivalents. For purposes of this provision, each of
the following shall be deemed to be cash:
(a) any Indebtedness or other liabilities, of the
Company or any Restricted Subsidiary (other than
liabilities that are by their terms subordinated to
the Notes or any Subsidiary Guarantee) that are
assumed by the transferee of any such assets
pursuant to an agreement that releases the Company
or such Restricted Subsidiary from further
liability; and
(b) any currencies, securities, notes or other
obligations received by the Company or any such
Restricted Subsidiary from such transferee (or any
Person on behalf of such transferee in respect of
such Asset Sale) and that are converted by the
Company or such Restricted Subsidiary into cash or
Cash Equivalents within 60 days after the closing of
such Asset Sale (to the extent of the cash or Cash
Equivalents received in that conversion).
Within 360 days after the receipt of any Net Proceeds from an
Asset Sale, the Company or any Restricted Subsidiary may, at its option, apply
such Net Proceeds, or enter into a legally binding agreement:
(1) to prepay or repay permanently Indebtedness of the Company or
Restricted Subsidiaries under the Senior Secured Credit
Facility or any other Indebtedness secured by a Lien and, if
the Indebtedness repaid is revolving credit Indebtedness, to
correspondingly reduce commitments with respect thereto to
the extent the aggregate of all such revolving commitments
exceeds $40.0 million;
(2) to acquire all or substantially all of the assets of, or a
majority of the Voting Stock of, another Permitted Business
or to make a Permitted Investment pursuant to clause (7) of
the definition of "Permitted Investments" in Section 1.01;
(3) to make a capital expenditure;
(4) to acquire other properties or other assets (other than
Indebtedness, cash or Cash Equivalents or Capital Stock) that
are used or useful in a Permitted Business; or
(5) to make any combination of (1) through (4) above.
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Pending the final application of any such Net Proceeds, the
Company or such Restricted Subsidiary may temporarily reduce outstanding
Indebtedness or otherwise invest such Net Proceeds in any manner that is not
prohibited by this Indenture.
Any Net Proceeds from Asset Sales that are not applied or
invested as provided in the preceding paragraph will constitute excess proceeds
("Excess Proceeds"). When the aggregate amount of Excess Proceeds exceeds $10.0
million, the Company shall make an offer to all Holders of Notes (an "Asset
Sale Offer") and the Company may also make a similar offer to all holders of
other Indebtedness that is pari passu with the Notes containing provisions
similar to those set forth in this Indenture with respect to offers to purchase
or redeem with the proceeds of sales of assets to purchase the maximum
principal amount of Notes and such other pari passu Indebtedness that may be
purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer
will be equal to 100% of principal amount plus accrued and unpaid interest, if
any, to the date of purchase, and will be payable in cash. If any Excess
Proceeds remain after consummation of an Asset Sale Offer, the Company may use
such Excess Proceeds for any purpose not otherwise prohibited by this
Indenture. If the aggregate principal amount of Notes and such other pari passu
Indebtedness tendered in such Asset Sale Offer exceeds the amount of Excess
Proceeds, the Trustee shall select the Notes and such other pari passu
Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset
Sale Offer, the amount of Excess Proceeds shall be reset at zero.
Each Asset Sale Offer will be mailed to the record Holders as
shown on the register of Holders within 25 days following the Asset Sale Offer
Trigger Date, with a copy to the Trustee, and shall comply with the procedures
set forth in this Indenture. Upon receiving notice of the Asset Sale Offer,
Holders may elect to tender their Securities in whole or in part in integral
multiples of $1,000 in exchange for cash. To the extent Holders properly tender
Securities in an amount exceeding the maximum principal amount of Notes and
such other pari passu Indebtedness that may be purchased out of the Excess
Proceeds, Securities of tendering Holders will be purchased on a pro rata basis
(based on amounts tendered). An Asset Sale Offer shall remain open for a period
of 20 Business Days or such longer period as may be required by law.
(B) Each notice of an Asset Sale Offer pursuant to this
Section 4.05 shall be mailed or caused to be mailed, by first class mail, by
the Company not more than 25 days after the Asset Sale Offer Trigger Date to
all Holders at their last registered addresses as of a date within 15 days of
the mailing of such notice, with a copy to the Trustee. The notice shall
contain all instructions and materials necessary to enable such Holders to
tender Securities pursuant to the Asset Sale Offer and shall state the
following terms:
(1) that the Asset Sale Offer is being made pursuant to this
Section 4.05 and that all Securities and all other
Indebtedness that is pari passu with the Securities
containing provisions similar to those set forth in the
Indenture with respect to offers to purchase or to redeem
with the proceeds of the sale of assets tendered will be
accepted for payment; provided that if the aggregate
principal amount of Securities tendered in an Asset Sale
Offer and the aggregate payment amount of such other pari
passu Indebtedness exceeds the aggregate amount of the Asset
Sale Offer, the Company shall select the Securities and such
other pari passu Indebtedness to be purchased on a pro rata
basis based on the amounts tendered (with such adjustments as
may be deemed appropriate by the Company so that only
Securities in denominations of $1,000 or multiples thereof
shall be purchased);
(2) the purchase price (including the amount of accrued interest)
and the purchase date (which shall be at least 20 and not
more than 30 Business Days from the date of mailing of notice
of such Asset Sale Offer, or such longer period as required
by law) (the "Asset Sale Offer Payment Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment therefor,
any Security accepted for payment pursuant to the Asset Sale
Offer shall cease to accrue interest after the Asset Sale
Offer Payment Date;
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(5) that Holders electing to have a Security purchased pursuant
to an Asset Sale Offer will be required to surrender the
Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the
Paying Agent at the address specified in the notice prior to
the close of business on the third Business Day prior to the
Asset Sale Offer Payment Date;
(6) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than five Business Days
prior to the Asset Sale Offer Payment Date, a telegram,
telex, facsimile transmission or letter setting forth the
name of the Holder, the principal amount of the Securities
the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Security
purchased; and
(7) that Holders whose Securities are purchased only in part will
be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered; provided
that each Security purchased and each new Security issued
shall be in an original principal amount of $1,000 or
integral multiples thereof.
On or before 10:00 a.m., New York time, on the Asset Sale
Offer Payment Date, the Company shall (i) accept for payment Securities or
portions thereof validly tendered pursuant to the Asset Sale Offer which are to
be purchased in accordance with item (B)(1) above, (ii) deposit with the Paying
Agent United States Legal Tender sufficient to pay the purchase price plus
accrued interest, if any, of all Securities to be purchased and (iii) deliver
to the Trustee Securities so accepted together with an Officers' Certificate
stating the Securities or portions thereof being purchased by the Company. The
Paying Agent shall promptly mail to the Holders so accepted payment in an
amount equal to the purchase price plus accrued interest, if any. For purposes
of this Section 4.05, the Trustee shall act as the Paying Agent.
Any amounts remaining after the purchase of Securities
pursuant to an Asset Sale Offer shall be returned by the Trustee to the
Company.
The Company shall comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to an Asset Sale Offer. To the extent that
the provisions of any securities laws or regulations conflict with this Section
4.05, the Company shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this
Section 4.05 by virtue thereof.
(C) The Company will not, and will not permit any
Restricted Subsidiary to, engage in any Asset Swaps, unless:
(1) at the time of entering into such Asset Swap and immediately
after giving effect to such Asset Swap, no Default or Event
of Default shall have occurred and be continuing;
(2) in the event such Asset Swap involves the transfer by the
Company or any Restricted Subsidiary of the Company of assets
having an aggregate fair market value, as determined by the
Board of Directors in good faith, in excess of $2.5 million,
the terms of such Asset Swap have been approved by a majority
of the members of the Board of Directors whose resolution
with respect thereto shall be delivered to the Trustee; and
(3) in the event such Asset Swap involves the transfer by the
Company or any Restricted Subsidiary of the Company of assets
having an aggregate fair market value, as determined by a
majority of the members of the Board of Directors in good
faith, in excess of $10.0 million, the Company has received
an opinion issued by an accounting, appraisal or investment
banking firm of nationally recognized standing that such
Asset Swap is fair to the Company or such Restricted
Subsidiary, as the case may be, from a financial point of
view.
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SECTION 4.06 Limitation on Restricted Payments.
(A) (i) The Company will not, and will not permit any of
its Restricted Subsidiaries to, directly or indirectly:
(1) declare or pay any dividend or make any other
payment or distribution on account of the Company's or any of its Restricted
Subsidiaries' Equity Interests other than declarations or payments of
dividends, distributions or such other payments payable (a) in Equity Interests
(other than Disqualified Stock) of the Company or (b) to the Company or a
Restricted Subsidiary of the Company;
(2) purchase, redeem or otherwise acquire or retire for
value any Equity Interests of the Company or any direct or indirect parent of
the Company or any Restricted Subsidiary of the Company (other than any such
Equity Interests owned by the Company or any Restricted Subsidiary of the
Company or in exchange for other Equity Interests (other than Disqualified
Stock) of the Company);
(3) make any voluntary or optional principal payment, or
purchase, redeem, defease or otherwise acquire or retire for value, any
Indebtedness that (a) is subordinate in right of payment to the Subsidiary
Guarantees, with respect to the Guarantors or (b) otherwise constitutes
Subordinated Indebtedness, except a payment of principal at the Stated Maturity
thereof or pursuant to any required sinking fund payments; or
(4) make any Restricted Investment (all such payments
and other actions set forth in clauses (1) through (4) above being collectively
referred to as "Restricted Payments");
(ii) unless, at the time of and immediately after giving effect to such
Restricted Payment:
(1) no Default or Event of Default shall have occurred
and be continuing; and
(2) the Company would, at the time of such Restricted
Payment and after giving pro forma effect thereto as if such Restricted Payment
had been made at the beginning of the applicable four-quarter period, have been
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in Section 4.04; and
(3) such Restricted Payment, together with the aggregate
amount of all other Restricted Payments made by the Company and its Restricted
Subsidiaries after the Issue Date (excluding Restricted Payments permitted by
clauses (2), (3), (4) and (9) of Section 4.06(B)), is less than the sum,
without duplication, of
(a) 50% of the Consolidated Net Income of the
Company for the period (taken as one
accounting period) from the beginning of
the first fiscal quarter commencing after
the Issue Date to the end of the Company's
most recently ended fiscal quarter for
which internal financial statements are
available at the time of such Restricted
Payment (or, if such Consolidated Net
Income for such period is a deficit, less
100% of such deficit); plus
(b) 100% of the aggregate net cash proceeds
received by the Company from any Person
(other than a Subsidiary of the Company)
since the Issue Date (i) as a contribution
to its common equity capital, (ii) from the
issuance or sale of Equity Interests of the
Company (other than Disqualified Stock)
and/or (iii) from the issuance or sale of
convertible or exchangeable Disqualified
Stock or convertible or exchangeable debt
securities of the Company that have been
converted into or exchanged for such Equity
Interests (other than Equity Interests (or
Disqualified Stock or debt securities) sold
to a Subsidiary of the Company), together
with the aggregate cash received by the
Company or any of its Subsidiaries at the
time of such conversion or exchange (in any
case, other than net cash proceeds received
from an issuance or sale of such Capital
Stock
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to an employee of the Company or any of its
Restricted Subsidiaries to the extent such
sale is financed by loans from or guaranteed
by the Company or any Restricted Subsidiary
unless such loans have been repaid (or such
guarantee has been released or discharged)
on or prior to the date of determination);
plus
(c) to the extent that any Restricted Investment
that was made after the Issue Date is sold
or otherwise liquidated or repaid, the
lesser of (i) the cash (including Cash
Equivalents) return of capital with respect
to such Restricted Investment, including any
cash or Cash Equivalents received as a
result of the sale of any property received
upon the sale or other liquidation or
repayment of such Restricted Investment
within 60 days after the receipt of such
property (less the cost of disposition, if
any) and (ii) the initial amount of such
Restricted Investment; plus
(d) upon the redesignation of an Unrestricted
Subsidiary as a Restricted Subsidiary, the
fair market value (as determined by the
Board of Directors in good faith) of such
Unrestricted Subsidiary as of the date it is
redesignated; provided that for purposes of
this clause (d), the fair market value of
any redesignated Unrestricted Subsidiary
shall be reduced by the amount that any such
redesignation replenishes or increases the
amount of Restricted Investments permitted
to be made pursuant to clause (7) of the
definition of "Permitted Investments" in
Section 1.01.
(B) Notwithstanding the foregoing, the provisions set
forth in the immediately preceding paragraph will not prohibit:
(1) the payment of any dividend or distribution within
60 days after the date of declaration thereof, if at said date of declaration
such payment would have complied with the provisions of this Indenture;
(2) the redemption, repurchase, retirement, defeasance
or other acquisition of any Indebtedness or of any Equity Interests of the
Company or of any Restricted Subsidiary in exchange for, or out of the net cash
proceeds of the substantially concurrent sale (other than to a Subsidiary of
the Company) of, Equity Interests of the Company (other than Disqualified
Stock); provided that the amount of any such net cash proceeds that are
utilized for any such redemption, repurchase, retirement, defeasance or other
acquisition shall be excluded from Section 4.06(A) (ii) (3) (b);
(3) the payment of principal or the defeasance,
redemption, retirement, repurchase or other acquisition of Indebtedness with
the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(4) the payment of any dividend, distribution or other
payment by a Restricted Subsidiary of the Company to the holders of its common
Equity Interests or the repurchase by a Restricted Subsidiary of the Company of
its common Equity Interests, in each case, on a pro rata basis, provided that
no Default or Event of Default shall have occurred and be continuing (i) in the
case of any dividend, distribution or other payment, at the time of, and
immediately after giving effect to, the declaration of such dividend,
distribution or other payment or (ii) in the case of any repurchase, at the
time of, and immediately after giving effect to, such repurchase;
(5) the repurchase, redemption or other acquisition or
retirement for value of (i) any Equity Interests of the Company or any
Restricted Subsidiary of the Company held by any member (present or former) of
the Company's or any of its Subsidiaries' management (or their estates or
beneficiaries thereunder) pursuant to any management equity subscription
agreement or stock option agreement or other compensation or severance
arrangement in effect as of the Issue Date or entered into or created
thereafter without violating this Indenture or (ii) any Equity Interests of the
Company or any of its Restricted Subsidiaries to the extent necessary, in the
good faith judgment of the Board of Directors of the Company, to prevent the
loss or secure the renewal or reinstatement of any license, permit or
authorization held by the Company or any of its Restricted Subsidiaries under
any applicable
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law or governmental regulation or the policies of any applicable governmental
authority or other regulatory body; provided, that the amount of any such
repurchase, redemption, acquisition or retirement for value pursuant to this
clause (ii) shall not exceed the fair market value of the Equity Interests being
repurchased, redeemed, acquired or otherwise retired; provided, further that the
aggregate price paid for all such repurchased, redeemed, acquired or retired
Equity Interests pursuant to immediately preceding clauses (i) and (ii) shall
not exceed $2.0 million in any calendar year (with up to $1.0 million of any
unused amount in any calendar year being carried over to the succeeding calendar
year subject to a maximum of $3.0 million in any calendar year, after giving
effect to any unused amounts carried over to a succeeding calendar year);
(6) the payment or distribution to dissenting
equityholders (other than Affiliates of the Company or any of its Subsidiaries)
pursuant to applicable law, pursuant to or in connection with a consolidation,
merger or transfer of all, or substantially all, of the assets or property of
the Company that is not prohibited by this Indenture;
(7) the declaration or payment of dividends on the
common stock of the Company following any Public Equity Offering of such common
stock, or of the common stock of Holdings, of up to, in each case, 6% per annum
of the net cash proceeds received by the Company, or contributed by Holdings to
the equity capital of the Company, in all such Public Equity Offerings;
provided that, at the time of the declaration of any such dividends and
immediately after giving effect to such declaration, no Default or Event of
Default shall have occurred and be continuing;
(8) the repurchase of any Subordinated Indebtedness
pursuant to an offer to purchase in the event of a change of control in
accordance with provisions similar to Section 4.14; provided that (i) at the
time any such Subordinated Indebtedness is accepted for payment pursuant to the
offer to purchase and immediately after giving effect to such repurchase, no
Default or Event of Default shall have occurred and be continuing and (ii)
prior to or simultaneously with the making of the offer to purchase such
Subordinated Indebtedness, the Company has made the Change of Control Offer as
provided in Section 4.14 with respect to the Notes and has repurchased all
Notes validly tendered for payment in connection with such Change of Control
Offer;
(9) loans and advances to employees, officers and
directors of the Company and its Restricted Subsidiaries the proceeds of which
are used to purchase Equity Interests of the Company or its Restricted
Subsidiaries and other loans and advances to employees and officers in the
ordinary course of business for bona fide business purposes, provided that the
aggregate principal amount of all such loans and advances made pursuant to this
clause (9) does not exceed $2.0 million at any one time outstanding; and
(10) the declaration or payment of any dividends or
distributions or the making of loans or other payments to Holdings to enable
Holdings to pay reasonable and customary fees to directors of Holdings.
The amount of all Restricted Payments (other than cash) shall
be the fair market value on the date of the Restricted Payment of the asset(s)
or securities proposed to be transferred or issued by the Company or its
Restricted Subsidiaries, as the case may be, pursuant to the Restricted
Payment. The fair market value of any non-cash assets or securities that are
required to be valued by this Section 4.06 in excess of $2.5 million shall be
determined by a majority of the members of the Board of Directors whose
resolution with respect thereto shall be delivered to the Trustee. The Board of
Directors' determination must be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if the
fair market value exceeds $10.0 million. Not later than 10 days after the date
of making any Restricted Payment (but not including any Restricted Payment
described in the preceding paragraph) of more than $2.5 million, the Company
shall deliver to the Trustee an Officer's Certificate stating that such
Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.06 were computed, together with a copy,
of any fairness opinion or appraisal required by this Indenture.
In making the computations required by this Section 4.06, (i)
the Company may use audited financial statements for the portions of the
relevant period for which audited financial statements are available on the
date of determination and unaudited financial statements and other current
financial data based on the books and
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records of the Company for the remaining portion of such period and (ii) the
Company will be permitted to rely in good faith on the financial statements and
other financial data derived from its books and records that are available on
the date of determination. If the Company makes a Restricted Payment that, at
the time of the making of such Restricted Payment, would in the good faith
determination of the Company be permitted under the requirements of this
Indenture, such Restricted Payment will be deemed to have been made in
compliance with this Indenture notwithstanding any subsequent adjustments made
in good faith to the Company's financial statements which adjustments affect any
of the financial data used to make the calculations with respect to such
Restricted Payment.
SECTION 4.07 Compliance with Laws.
The Company shall comply, and shall cause each of its
Restricted 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 for such noncompliances as are
not in the aggregate reasonably likely to have a material adverse effect on the
financial condition or results of operations of the Company and its Restricted
Subsidiaries, taken as a whole.
SECTION 4.08 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, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Restricted Subsidiary or upon the income, profits or property of the Company or
any Restricted Subsidiary and (2) all lawful claims for labor, materials and
supplies which, in each case, if unpaid, are reasonably likely to become a
material liability, or material Lien upon the property, of the Company or any
Restricted Subsidiary; provided that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good
faith by appropriate proceedings and for which appropriate provision has been
made.
SECTION 4.09 Notice of Defaults.
Upon becoming aware of any Default or Event of Default, the
Company shall and in any event within 15 calendar days deliver an Officers'
Certificate to the Trustee specifying the Default or Event of Default and what
action the Company is proposing to take with respect thereto.
SECTION 4.10 Maintenance of Properties and Insurance.
(a) Subject to Article Five, the Company shall cause all
material properties owned by or leased to it or any Restricted Subsidiary and
necessary in the conduct of its business or the business of any Restricted
Subsidiary to be maintained and kept in normal condition, repair and working
order (other than ordinary wear and tear); provided that nothing in this
Section 4.10 shall prevent the Company or any Restricted Subsidiary from
discontinuing the use, operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposal is, in the
judgment of the Board of Directors of the Company or the Restricted Subsidiary
concerned, or of an Officer (or other agent employed by the Company or of any
Restricted Subsidiary) of the Company or such Restricted Subsidiary having
managerial responsibility for any such property, desirable in the conduct of
the business of the Company or any Restricted Subsidiary.
(b) The Company shall maintain, and shall cause the
Restricted Subsidiaries to maintain, insurance with responsible carriers
against such risks and in such amounts, and with such deductibles, retentions,
self-insured amounts and co-insurance provisions as, in the judgment of the
Company, may be necessary.
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SECTION 4.11 Compliance Certificate.
The Company shall deliver to the Trustee within 90 days after
the close of each fiscal year a certificate signed by the principal executive
officer, principal financial officer or principal accounting officer of the
Company stating that a review of the activities of the Company has been made
under the supervision of the signing officers with a view to determining
whether a Default or Event of Default has occurred and whether or not the
signers have actual knowledge of any Default or Event of Default by the Company
that occurred during such fiscal year and is continuing. If they do know of
such a Default or Event of Default, the certificate shall describe all such
Defaults or Events of Default, their status and the action the Company is
taking or proposes to take with respect thereto. The first certificate to be
delivered by the Company pursuant to this Section 4.11 shall be for the fiscal
year ending December 31, 1999.
SECTION 4.12 Reports to Holders.
So long as any Securities are outstanding, at all times from
and after the earlier of (i) the date of the commencement of an Exchange Offer
or the effectiveness of the Shelf Registration Statement (the "Registration
Date") and (ii) the date 180 days after the Issue Date, in either case, whether
or not the Company is then required to file reports with the Commission, the
Company will file with the Commission (to the extent accepted by the
Commission):
(1) all quarterly and annual financial information that would
be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Company were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" and, with respect to the annual information
only, a report on the annual financial statements by the Company's
certified independent accountants; and
(2) all current reports that would be required to be filed
with the SEC on Form 8-K if the Company were required to file such
reports.
If the Company has designated any of its Subsidiaries as
Unrestricted Subsidiaries, or if any of the Company's Subsidiaries are not
Guarantors, then the quarterly and annual financial information required by the
preceding paragraph shall include a reasonably detailed presentation, either on
the face of the financial statements or in the footnotes thereto, of the
financial condition and results of operations of the Company and its Restricted
Subsidiaries that are Guarantors separate from the financial condition and
results of operations of the Subsidiaries that are not Guarantors and from the
Unrestricted Subsidiaries of the Company.
In addition, whether or not required by the SEC, the Company
will file a copy of all of the information and reports referred to in clauses
(1) and (2) of this Section 4.12 with the SEC for public availability within
the time periods specified in the SEC rules and regulations (unless the SEC
will not accept such a filing) and make such information available to
securities analysts and prospective investors upon request. For all reporting
periods commencing after August 12, 1999, the Issuer shall include in each Form
10-Q and Form 10-K a presentation, which need not be audited, of sales,
operating income, interest expense, depreciation and amortization, and capital
expenditures for such operating period and the twelve months ended on the last
day of such reporting period, on a pro forma basis consistent with Article 11
of Regulation S-X of the Exchange Act.
The Company will also be required (a) to supply the Trustee
and each Holder of Securities, or supply to the Trustee for forwarding to each
such Holder, without cost to such Holder, copies of such reports and other
documents within 20 days after the date on which the Company files such reports
and documents with the Commission or the date on which the Company would be
required to file such reports and documents if the Company were so required and
(b) if filing such reports and documents with the Commission is not accepted by
the Commission or is prohibited under the Exchange Act, to supply at the
Company's cost copies of such reports and documents to any prospective Holder
of Securities promptly upon written request. In addition, at all times prior to
the earlier of the Registration Date and the date 180 days after the Issue
Date, the Company will, at its cost, deliver to each Holder of the Securities
quarterly and annual reports substantially equivalent to those that would be
required
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by the Exchange Act. Furthermore, at all times prior to the Registration Date,
the Company will supply at the Company's cost copies of such reports and
documents to any prospective Holder of Securities promptly upon written request
and as required by Rule 144A(d)(4) under the Securities Act.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
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 Officers' Certificates).
SECTION 4.13 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to the
extent that it may lawfully do so) that it shall 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, which would prohibit
or forgive the Company or such Guarantor from paying all or any portion of the
principal of and/or interest, if any, on the Securities 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 and each Guarantor hereby expressly waive all
benefit or advantage of any such law, and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.14 Change of Control.
(a) Upon the occurrence of a Change of Control, each
Holder will have the right to require that the Company purchase all or a
portion (equal to $1,000 or an integral multiple thereof) of such Holder's
Securities pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price in cash equal to 101% of the aggregate principal
amount thereof plus accrued and unpaid interest to the date of purchase.
(b) Within 30 days following the date upon which the
Change of Control occurred, the Company must send, by first class mail, a
notice to each Holder, with a copy to the Trustee, which notice shall govern
the terms of the Change of Control Offer. Such notice shall state:
(1) that the Change of Control Offer is being made pursuant
to this Section 4.14 and that all Securities tendered and not
withdrawn will be accepted for payment;
(2) the purchase price (including the amount of accrued
interest) and the purchase date, which must be no earlier than 30 days
nor later than 60 days from the date such notice is mailed, other than
as may be required by law (the "Change of Control Payment Date");
(3) that any Security not tendered will continue to accrue
interest;
(4) that, unless the Company defaults in making payment
therefor, any Security accepted for payment pursuant to the Change of
Control Offer shall cease to accrue interest after the Change of
Control Payment Date;
(5) that Holders electing to have a Security purchased
pursuant to a Change of Control Offer will be required to surrender
the Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying
Agent at the address specified in the notice prior to the close of
business on the third Business Day prior to the Change of Control
Payment Date;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than five 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 Securities the Holder
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delivered for purchase and a statement that such Holder is withdrawing
his election to have such Securities purchased;
(7) that Holders whose Securities are purchased only in part
will be issued new Securities in a principal amount equal to the
unpurchased portion of the Securities surrendered; provided that each
Security purchased and each new Security issued shall be in an
original principal amount of $1,000 or integral multiples thereof; and
(8) the circumstances and relevant facts regarding such Change
of Control.
On or before 10:00 a.m., New York time, on the Change of
Control Payment Date, the Company shall (i) accept for payment Securities or
portions thereof validly tendered pursuant to the Change of Control Offer, (ii)
deposit with the Paying Agent an amount equal to the Change of Control Payment
in respect of all Securities or portions thereof so tendered and (iii) deliver
or cause to be delivered to the Trustee Securities so accepted together with an
Officers' Certificate stating the aggregate principal amount of Securities or
portions thereof being purchased by the Company. The Paying Agent shall
promptly mail to the Holders tendering the Change of Control Payment for such
Securities, and the Trustee shall promptly authenticate and mail (or cause to
be transferred by book entry) to such Holders new Securities equal in principal
amount to any unpurchased portion of the Securities surrendered, if any;
provided that each such new Security will be in a principal amount of $1,000 or
an integral multiple thereof. Any Securities not so accepted shall be promptly
mailed by the Company to the Holder thereof. For purposes of this Section 4.14,
the Trustee shall act as the Paying Agent.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
to the extent such laws and regulations are applicable in connection with the
repurchase of Securities pursuant to a Change of Control Offer.
The provisions described above that require the Company to
make a Change of Control Offer following a Change of Control will be applicable
regardless of whether or not any other provisions of this Indenture are
applicable.
The Company will not be required to make a Change of Control
Offer upon a Change of Control if a third party makes the Change of Control
Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Section 4.14.
SECTION 4.15 Prohibition on Incurrence of Certain Types of Indebtedness.
The Company will not incur, create, issue, assume or
guarantee any Indebtedness that is contractually subordinate in right of
payment to any other Indebtedness of the Company other than Indebtedness
permitted by clause (1) of the definition of "Permitted Indebtedness" unless
such Indebtedness is also contractually subordinated in right of payment to the
Notes on substantially similar terms. No Guarantor will incur, create, issue,
assume or guarantee any Indebtedness that is contractually subordinate in right
of payment to any other Indebtedness of such Guarantor other than Indebtedness
permitted by clause (1) of the definition of "Permitted Indebtedness" unless
such Indebtedness is also contractually subordinated in right of payment to
such Guarantor's Subsidiary Guarantee on substantially similar terms.
SECTION 4.16 Limitation on Dividend and Other Payment Restrictions
Affecting Subsidiaries.
(A) The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create or permit to exist
or become effective any consensual encumbrance or restriction on the ability of
such Restricted Subsidiary to:
(1) pay dividends or make any other distributions on its Equity
Interests to the Company or any of the Company's Restricted
Subsidiaries, or pay any Indebtedness owed to the Company or
any of the Company's Restricted Subsidiaries;
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(2) make loans or advances to the Company or any of the Company's
Restricted Subsidiaries; or
(3) transfer any of its properties or assets to the Company or
any of the Company's Restricted Subsidiaries.
(B) However, the preceding restrictions will not apply
to encumbrances or restrictions existing under or by reason of:
(1) agreements, including, without limitation, those with respect
to Existing Indebtedness and the Credit Facilities in each
case, as in effect on the Issue Date and any amendments,
modifications, restatements, renewals, increases,
supplements, refundings, replacements or refinancings
thereof, provided that such amendments, modifications,
restatements, renewals, increases, supplements, refundings,
replacement or refinancings are no more restrictive, in any
material respect, taken as a whole, with respect to such
dividend and other payment restrictions than those contained
in such agreements as in effect on the Issue Date;
(2) this Indenture, the Subsidiary Guarantees and the Notes;
(3) applicable law;
(4) any instrument governing Acquired Debt or Capital Stock of a
Person acquired by the Company or any of its Restricted
Subsidiaries as in effect at the time of such acquisition
(except to the extent such Acquired Debt was incurred in
connection with or in contemplation of such acquisition),
which encumbrance or restriction is not applicable to any
Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so
acquired;
(5) customary non-assignment provisions restricting subletting,
assignment or transfer in licenses, leases or other
agreements entered into in the ordinary course of business;
(6) purchase money or capital lease obligations for property or
assets acquired in the ordinary course of business that
impose restrictions on the property or assets so acquired of
the nature described in Section 4.16(A)(3);
(7) any agreement for the sale or other disposition of all or
substantially all of the Equity Interests of, or property and
assets of, any Restricted Subsidiary that restricts
dividends, distributions, loans, advances or transfers by
such Restricted Subsidiary pending its sale or other
disposition;
(8) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive,
in any material respect, taken as a whole, than those
contained in the agreements governing the Indebtedness being
refinanced;
(9) Liens not prohibited by this Indenture that limit the right
of the Company or any of its Restricted Subsidiaries to
transfer property or assets subject to such Lien;
(10) provisions with respect to the disposition or distribution of
assets or property in joint venture agreements and other
similar agreements entered into in the ordinary course of
business;
(11) restrictions on cash or other deposits imposed by customers
under contracts entered into in the ordinary course of
business;
(12) provisions in agreements or instruments which prohibit the
payment of dividends or the making of other distributions
with respect to any Capital Stock of a Person other than on a
pro rata basis;
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(13) restrictions on the ability of any Restricted Subsidiary to
make dividends or other distributions resulting from the
operation of reasonable and customary covenants including,
without limitation, negative pledge covenants, contained in
documentation governing Indebtedness incurred by such
Restricted Subsidiary in compliance with this Indenture; and
(14) provisions contained in any licenses, permits or leases with
airports or airport regulatory authorities entered into in
the ordinary course of business that restrict the ability of
any Restricted Subsidiary of the Company to make loans or
advances or to transfer any of its properties or assets to
Persons other than the Company or any other Person which
owns, directly or indirectly, any Equity Interests in such
Restricted Subsidiary.
SECTION 4.17 Limitation on Liens.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, directly or indirectly, create, incur, assume or
suffer to exist any Lien of any kind securing any Indebtedness on any asset now
owned or hereafter acquired, unless the Notes or such Guarantee, as the case
may be, are directly secured equally and ratably with (or prior to, in the case
of Subordinated Indebtedness) the Indebtedness secured by such Lien; provided
that the foregoing restriction shall not apply to any Permitted Lien.
In the event that the Lien, the existence of which gives rise
to a Lien securing the Note or a Subsidiary Guarantee pursuant to the
provisions of this covenant, ceases to exist, the Lien securing the Notes or
such Subsidiary Guarantee required by this covenant shall automatically be
released and the Trustee shall execute appropriate documentation.
SECTION 4.18 Conduct of Business.
The Company will not, and will not permit any Restricted
Subsidiaries to, engage in any businesses which are not the same, similar or
reasonably related or complementary to the Permitted Businesses.
SECTION 4.19 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, partnership or
other existence of each of its Restricted Subsidiaries in accordance with the
respective organizational documents of each Restricted Subsidiary and the
rights (charter and statutory) of the Company and each of its Restricted
Subsidiaries; provided that the Company shall not be required to preserve any
such right or corporate existence of any Restricted Subsidiary if the Board of
Directors of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the Permitted Businesses of the Company and
its Restricted Subsidiaries, taken as a whole, and that the loss thereof is
not, and will not be, adverse in any material respect to the Holders.
SECTION 4.20 Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any of its
Restricted Subsidiaries to, enter into any sale and leaseback transaction;
provided that the Company or any Restricted Subsidiary of the Company may enter
into a sale and leaseback transaction if:
(1) the Company or that Restricted Subsidiary, as applicable,
could have incurred Indebtedness in an amount equal to the
Attributable Debt relating to such sale and leaseback
transaction under the Fixed Charge Coverage Ratio test in
Section 4.04;
(2) the gross proceeds consisting of cash and Cash Equivalents of
that sale and leaseback transaction are at least equal to the
fair market value (in the case of gross cash proceeds in
excess of $1.0 million as determined in good faith by the
Board of Directors and set forth in an Officers'
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Certificate delivered to the Trustee), of the property that is
the subject of such sale and leaseback transaction; and
(3) the transfer of assets in that sale and leaseback transaction
is permitted by, and the Company applies the proceeds of such
transaction in compliance with, Section 4.05.
The restrictions contained in this Section 4.20 shall not
restrict or limit in any way one or more sale and leaseback transactions that
(i) singly or in the aggregate relate to assets having in the aggregate (in the
case of related transactions) a fair market value not exceeding $1.0 million;
(ii) are solely between or among any of the Company and any Guarantors; or
(iii) are solely between or among any Restricted Subsidiary of the Company that
is not a Guarantor and other Restricted Subsidiaries that are not Guarantors.
SECTION 4.21 [Intentionally Omitted].
SECTION 4.22 Payments for Consent.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, pay or cause to be paid any
consideration to or for the benefit of any Holder of Securities for or as an
inducement to any consent, waiver or amendment of any of the terms or
provisions of this Indenture or the Securities unless such consideration is
offered to be paid and is paid to all Holders that consent, waive or agree to
amend in the time frame set forth in the solicitation documents relating to
such consent, waiver or agreement.
SECTION 4.23 Future Subsidiary Guarantors.
If the Company or any of its Restricted Subsidiaries acquires
or creates another Domestic Subsidiary after the Issue Date or if any Foreign
Subsidiary becomes a Domestic Subsidiary, then (a) that newly acquired or
created Restricted Subsidiary must become a Guarantor and execute a
Supplemental Indenture, substantially in the form of Exhibit F attached hereto,
and (b) the Company shall deliver (i) an Officer's Certificate substantially in
the form of Exhibit G attached hereto and (ii) an Opinion of Counsel to the
Trustee, each within 10 Business Days of the date on which such Subsidiary was
acquired or created; provided that this covenant shall not apply to any
Subsidiary that has been properly designated as an Unrestricted Subsidiary;
provided further the Company may, at its option, elect to have any such newly
acquired or created Restricted Subsidiary not become a Guarantor (a
"Non-Guarantor Subsidiary"); provided that, and for so long as, (1) none of the
total assets, stockholders' equity or Consolidated Cash Flow of such Restricted
Subsidiary exceeds $500,000 and (2) none of the total assets, stockholders'
equity or Consolidated Cash Flow of such Restricted Subsidiary together with
all other Non-Guarantor Subsidiaries, considered as a single Person, exceeds
$1.0 million in the aggregate.
ARTICLE FIVE
MERGERS, CONSOLIDATIONS AND ASSET SALES; SUCCESSORS
SECTION 5.01 Merger, Consolidation and Sale of Assets.
(A) The Company may not, directly or indirectly: (1)
consolidate or merge with or into another Person (whether or not the Company is
the surviving Person); or (2) sell, assign, transfer, convey or otherwise
dispose of all or substantially all of its properties or assets (determined on
a consolidated basis for the Company and its Restricted Subsidiaries), in one
or more related transactions, to another Person; unless:
(i) either: (a) the Company is the surviving Person; or (b) the
Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale,
assignment, transfer, conveyance or other disposition shall
have been made is a corporation organized or existing under
the laws of the United States, any state thereof or the
District of Columbia;
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(ii) the Person formed by or surviving any such consolidation or
merger (if other than the Company) or the Person to which
such sale, assignment, transfer, conveyance or other
disposition shall have been made assumes all the obligations
of the Company under the Notes, this Indenture and the
Registration Rights Agreement pursuant to a supplemental
indenture reasonably satisfactory to the Trustee;
(iii) immediately after giving effect to such transaction no Default
or Event of Default exists; and
(iv) except in the case of a merger of the Company with a Wholly
Owned Restricted Subsidiary, the Company or the Person formed
by or surviving any such consolidation or merger (if other
than the Company) or to which such sale, assignment,
transfer, conveyance or other disposition shall have been
made:
(a) will have, on a pro forma basis after giving effect
to the transaction, Consolidated Net Worth equal to
or greater than the Consolidated Net Worth of the
Company immediately preceding the transaction; and
(b) will, on the date of such transaction after giving
pro forma effect thereto, and to any related
financing transactions as if the same had occurred
at the beginning of the applicable four-quarter
period, be permitted to incur at least $1.00 of
additional Indebtedness pursuant to the Fixed Charge
Coverage Ratio test set forth in Section 4.04.
In addition, the Company may not, directly or indirectly,
lease all or substantially all of its properties or assets, in one or more
related transactions, to any other Person. This Section 5.01 will not apply to
a sale, assignment, transfer, conveyance or other disposition of assets between
or among the Company and any of its Wholly Owned Subsidiaries.
Notwithstanding the foregoing clauses (ii), (iii) and (iv),
(a) any Restricted Subsidiary may consolidate with, merge into or transfer all
or part of its property and assets to the Company or any other Restricted
Subsidiary and (b) the Company may merge with an Affiliate incorporated solely
for the purpose of reincorporating the Company in another jurisdiction.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more Restricted 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.
(B) Each Guarantor (other than any Guarantor whose
Guarantee is to be released in accordance with the terms of the Guarantee and
this Indenture in connection with any transaction complying with the provisions
of Section 4.05) will not, and the Company will not cause or permit any
Guarantor to, sell or otherwise dispose of all or substantially all of its
assets, or consolidate with or merge with or into any Person (whether or not
such Guarantor is the surviving Person, and whether or not such Person is
affiliated with such Guarantor) other than the Company or any other Guarantor
unless: (1) immediately after giving effect to that transaction, no Default or
Event of Default exists; and (2) either: (a) the Person acquiring the property
in any such sale or disposition or the Person formed by or surviving any such
consolidation or merger assumes all the Obligations of that Guarantor under its
Guarantee pursuant to a supplemental indenture reasonably satisfactory to the
Trustee; or (b) the Net Proceeds of such sale or other disposition are applied
in accordance with Section 4.05. Notwithstanding the immediately preceding
sentence, (a) any Guarantor may consolidate with, merge into or transfer all or
part of its property and assets to the Company or any other Guarantor and (b)
any Guarantor formed solely for the purpose of merging with and into any other
Person, may merge with or into such Person.
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SECTION 5.02 Successor Substituted.
Upon any consolidation, combination or merger or any transfer
of all or substantially all of the assets of the Company in accordance with the
foregoing, in which the Company is not the continuing corporation, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, lease or transfer is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture and the Securities with the same effect as if such
surviving entity had been named as such.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01 Events of Default.
Each of the following is an event of default (an "Event of
Default"):
(i) default for 30 days in the payment when due of
interest or liquidated damages (as required by the Registration Rights
Agreement) on the Securities;
(ii) default in payment when due of the principal of or
premium, if any, on the Securities;
(iii) (a) failure by the Company or any Guarantor to
comply with the provisions described under Article Five or (b) failure of the
Company to make or consummate a Change of Control Offer pursuant to Section
4.14 or (c) failure of the Company to make or consummate an Asset Sale Offer
pursuant to Section 4.05;
(iv) failure by the Company or any of its Restricted
Subsidiaries for 60 days after receipt of written notice by the Trustee to the
Company specifying the default to comply with any of the other agreements in
this Indenture or the Securities;
(v) default under the terms of any Indebtedness for
money borrowed by the Company or any of its Restricted Subsidiaries (or the
payment of which is guaranteed by the Company or any of its Restricted
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the Issue Date, if that default:
(a) is caused by a failure to pay principal of such
Indebtedness when due at final stated maturity after the
expiration of the grace period provided in such Indebtedness
on the date of such default (a "Payment Default"); or
(b) results in the acceleration of such Indebtedness
prior to its final maturity,
and, in each case, the principal amount of any such Indebtedness, together with
the principal amount of any other such Indebtedness under which there has been
a Payment Default or the maturity of which has been so accelerated, aggregates
$5.0 million or more;
(vi) failure by the Company or any Significant Subsidiary
or group of Restricted Subsidiaries that, taken together (as of the latest
audited consolidated financial statements for the Company and its Restricted
Subsidiaries), would constitute a Significant Subsidiary, to pay one or more
final judgments which exceed in the aggregate $5.0 million (net of any amounts
for which a reputable and creditworthy insurance company has assumed the
defense of or acknowledged liability for in writing), which judgments are not
paid, bonded, discharged or stayed for a period of 60 consecutive days;
(vii) except as permitted by the provisions contained
herein, any Subsidiary Guarantee shall be held in any judicial proceeding by a
court of competent jurisdiction to be unenforceable or invalid or shall cease
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for any reason to be in full force and effect or any Guarantor shall deny or
disaffirm in writing that it has any further liability under its Subsidiary
Guarantee;
(viii) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Significant
Subsidiary or group of Restricted Subsidiaries that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary, a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary or group of Restricted Subsidiaries that, taken together
(as of the latest audited consolidated financial statements for the Company and
its Restricted Subsidiaries), would constitute a Significant Subsidiary, under
the U.S. Federal Bankruptcy Code or any other applicable federal, state or
foreign law, or appointing a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Company or any Significant
Subsidiary or group of Restricted Subsidiaries that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary, or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; and
(ix) the institution by the Company or any Significant
Subsidiary or group of Restricted Subsidiaries that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary, of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to
the institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization or
relief under the U.S. Federal Bankruptcy Code or any other applicable federal,
state or foreign law, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Company or any Significant
Subsidiary or group of Restricted Subsidiaries that, taken together (as of the
latest audited consolidated financial statements for the Company and its
Restricted Subsidiaries), would constitute a Significant Subsidiary, or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due.
SECTION 6.02 Acceleration.
In the case of an Event of Default under Section 6.01(viii)
or (ix), all outstanding Securities will become due and payable immediately
without further action or notice. If any other Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Securities may declare all the Securities to be due and
payable by notice in writing to the Company and the Trustee specifying the
respective Event of Default and that it is a notice of acceleration (the
"Acceleration Notice") and the same shall become immediately due and payable.
In the event of an Acceleration Notice because an Event of
Default has occurred and is continuing as a result of the acceleration of any
Indebtedness described in clause (v) of Section 6.01, the Acceleration Notice
shall be automatically annulled and rescinded if the holders of any
Indebtedness described in such clause (v) have rescinded the declaration of
acceleration in respect of such Indebtedness within 30 days of the date of such
declaration and if (i) the annulment of the acceleration of the Securities
would not conflict with any judgment or decree binding on the Company or its
property and issued by a court of competent jurisdiction, and (ii) all existing
Events of Default, except nonpayment of principal or interest on the Securities
that became due solely because of the acceleration of the Securities, have been
cured or waived. The Trustee may withhold from the Holders notice of any
continuing Default or Event of Default (except a Default or Event of Default
relating to the payment of principal or interest) if it determines that
withholding notice is in their interest.
At any time after the date of the Acceleration Notice the
Holders of a majority in aggregate principal amount of the Securities then
outstanding may rescind and cancel such declaration and its consequences if (i)
the annulment of the acceleration of the Securities would not conflict with any
judgment or decree binding on the Company or its property and issued by a court
of competent jurisdiction, and (ii) all existing Events of Default,
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except nonpayment of principal or interest on the Securities that became due
solely because of the acceleration of the Securities, have been cured or waived.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect
the payment of principal of or interest on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy maturing 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 Default.
The Holders of a majority in aggregate principal amount of
the Securities then outstanding by written notice to the Trustee may on behalf
of the Holders of all of the Securities waive any Default or Event of Default
and its consequences under this Indenture except a continuing Default or Event
of Default in the payment of interest on, or the principal of, the Securities.
SECTION 6.05 Control by Majority.
The Holders may not enforce this Indenture or the Securities
except as provided herein and under the Trust Indenture Act. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or 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. In the event the
Trustee takes any action or follows any direction pursuant to this Indenture,
the Trustee shall be entitled to indemnification satisfactory to it in its sole
discretion against any loss or expense caused by taking such action or
following such direction. This Section 6.05 shall be in lieu of ss.
316(a)(1)(A) of the TIA, and such ss. 316(a)(1)(A) of the TIA is hereby
expressly excluded from this Indenture and the Securities, as permitted by the
TIA.
SECTION 6.06 Limitation on Suits.
A Holder may not pursue any remedy with respect to this
Indenture or the Securities unless:
(i) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(ii) the Holders of at least 25% in aggregate principal
amount of the then outstanding Securities make a written request to
the Trustee to pursue a remedy;
(iii) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability, claim, damage or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity with respect to such request; and
(v) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities do not give the Trustee
a direction which, in the opinion of the Trustee, is inconsistent with
the request.
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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.
Holders may not enforce this Indenture or the Securities except as provided in
this Indenture.
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 premium, if any or
interest on a Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default in payment of principal or interest
specified in Section 6.01(i) or (ii) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or any other obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with interest overdue
on 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 Securities 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,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company or any
other obligor upon the Securities, their respective creditors or their
respective property and shall be entitled and empowered to collect and receive
any moneys 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, 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 Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money or property pursuant to
this Article Six, it shall pay out the money or property in the following
order:
First: to the Trustee for amounts due under Section 7.07;
Second: to the Holders for amounts due and unpaid on the
Securities for principal and interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may
fix a record date and payment date for any payment to the Holders pursuant to
this Section 6.10.
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SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, 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 shall not apply to a suit by the
Trustee, a suit by a Holder or group of Holders of more than 10% in aggregate
principal amount of the then-outstanding Securities, or to any suit instituted
by any Holder for the enforcement of the payment of the principal or interest
on any Securities on or after the respective due dates expressed in the
Security.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its exercise, as a
prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture
and no others, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
(2) 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; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the certificates and opinions to determine whether or not they conform
to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein).
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability. The Trustee shall be under no obligation to exercise any of its
rights and powers under this Indenture at the request, order or direction of
any of the Holders unless such Holders shall have
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offered to the Trustee reasonable security or indemnity satisfactory to it
against any loss, liability or expense that might be incurred by the Trustee in
compliance with such request, order or direction.
(f) The Trustee shall not be liable for interest on any
money received by it except as set forth herein or as the Trustee may otherwise
agree in writing with the Company. Money held in trust by the Trustee need not
be segregated from other funds except to the extent required by law.
SECTION 7.02 Certain Rights of Trustee.
(a) The Trustee may conclusively rely upon any document,
certificate, opinion, report, notice, request, direction, order, note or other
evidence of indebtedness, whether in its original or facsimile form, 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 any such
document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel of its selection and the advice or opinion of
such counsel with respect to legal matters relating in any way to this
Indenture and the Securities shall be full and complete authorization and
protection from liability in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with the advice or opinion of
such counsel.
(c) The Trustee may act through its attorneys and agents
and shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith that it believes to be authorized or
within the rights or powers conferred upon it by this Indenture; provided that
the Trustee's conduct does not constitute willful misconduct, negligence or bad
faith.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(f) 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 hereof. 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(i), 6.01(ii) and 4.01 or (ii) any Default
or Event of Default of which a Responsible Officer of the Trustee shall have
received written notification at the Corporate Trust Office of the Trustee and
such notice references the Securities and this Indenture or obtained actual
knowledge.
(g) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(h) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, 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 to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
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(i) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal with the
Company or any Affiliate of the Company with the same rights it would have if
it were not Trustee. However, the Trustee must comply with Sections 7.10 and
7.11 of this Indenture. In addition, if the Trustee has any conflicting
interest within the meaning of Section 310 of the TIA it must eliminate such
conflict within 90 days, or resign. Any Agent may do the same with like rights
and duties.
SECTION 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities or any money paid to the Company or upon the Company's
direction under any provision of this Indenture, it shall not be responsible
for the use or application of any money received by any Paying Agent other than
the Trustee, and it shall not be responsible for any statement or recital
herein or any statement in the Securities or any other document in connection
with the sale of the Securities or pursuant to this Indenture other than its
certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and
if it is actually known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Holder of Securities a notice of the Default or Event of
Default within 90 days after it is known to a Responsible Officer, or written
notice of it is received by the Trustee. Except in the case of a Default or
Event of Default in payment of principal of, premium, if any, or interest on
any Security, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the
notice is in the interests of the Holders.
SECTION 7.06 Reports by Trustee to the Holders.
After each June 15, beginning with the June 15 following the
date hereof and for so long as the Securities remain outstanding, and in any
event prior to August 15 in each year, the Trustee shall mail to the Holders a
brief report dated as of such reporting date that complies with TIA Section
313(a) (but if no event described in TIA Section 313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The
Trustee also shall comply with TIA Section 313(b)(2). The Trustee shall also
transmit by mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the
Holders shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Securities are listed in accordance with TIA Section
313(d). The Company shall promptly notify the Trustee whenever the Securities
become listed on any stock exchange or delisted therefrom.
SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee such reasonable
compensation, as the Company and the Trustee shall from time to time agree in
writing, for its acceptance of this Indenture and its performance of services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. Except as otherwise provided
herein, in addition to compensating the Trustee for its services, the Company
shall reimburse the Trustee promptly upon request for all reasonable
out-of-pocket expenses incurred or made by it in accordance with any provision
of this Indenture (except any such expenses as may be attributable to the
Trustee's
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negligence or bad faith). Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any
predecessor Trustee against any and all losses, liabilities, claims, damages or
expenses incurred by it in connection with the acceptance or administration of
its duties under this Indenture, including the reasonable costs and expenses of
enforcing this Indenture against the Company (including this Section 7.07) and
defending itself against any claim (whether asserted by the Company or any
Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to its negligence or bad
faith. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. Failure by the Trustee to so notify the Company within a
reasonable time of a claim of which a Responsible Officer has received written
notice shall not relieve the Company of its obligations hereunder, except to
the extent such failure shall materially prejudice the Company. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel of its selection and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not
reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own negligence or bad faith. In
addition, the Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
The payment obligations of the Company under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
To secure the Company's payment obligations in this Section,
the Trustee shall have a Lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay principal
and interest on particular Securities. For purposes of this section, such Lien
shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 6.01(iv) hereof, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under the Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section
313(b)(2) to the extent applicable.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign in writing at any time and be
discharged from the trust hereby created by so notifying the Company. The
Holders constituting a majority in principal amount of the then outstanding
Securities may remove the Trustee by so notifying the Trustee and the Company
in writing. The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(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 Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in aggregate
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principal amount of the then outstanding Securities may, at the expense of the
Company, appoint a successor Trustee to replace the successor Trustee appointed
by the Company.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company, or the Holders owning at least 10% in aggregate principal amount of
the then outstanding Securities may, at the expense of the Company, petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder of a
Security who has been a Holder of a Security for at least six months, fails to
comply with Section 7.10, such Holder of a Security may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to the Holders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee (including its agents and counsel) hereunder have been
paid and subject to the Lien provided for in Section 7.07 hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
SECTION 7.09 Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business or assets
to, another corporation or banking association, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee,
and such successor Trustee may adopt the certificate of authentication of any
predecessor with respect to securities that have been authenticated by the
predecessor but not delivered, and such certificate shall have full force for
the purposes of this Indenture.
SECTION 7.10 Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements and
comply with Sections 310(a) and (b) of the TIA. Each successor Trustee shall be
a corporation organized and doing business under the laws of the United States
of America, any state thereof or the District of Columbia that is authorized
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by Federal or state authorities and that has a
combined capital and surplus of at least $50.0 million as set forth in its most
recent published annual report of condition, subject to supervision or
examination by Federal or state authority; provided that if Section 310(a) of
the TIA or the rules and regulations of the Commission under the TIA at any
time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the TIA,
this Section 7.10 shall be automatically deemed amended to permit a corporation
organized and doing business under the laws of any such jurisdiction to serve
as Trustee hereunder. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. Neither the Company nor any Person directly or
indirectly controlling, controlled by or under common control with the Company
may serve as Trustee. If at any time the Trustee with respect to any series of
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to and comply with TIA Section 311 to
the extent required thereby.
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ARTICLE EIGHT
[THIS ARTICLE HAS BEEN INTENTIONALLY OMITTED]
ARTICLE NINE
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 9.01 Termination of the Company's Obligations.
(A) The Company may terminate its, and its Guarantors',
obligations under the Securities and this Indenture, except those obligations
referred to in Section 9.01(B), if all Securities previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have been
replaced or paid or Securities for whose payment United States Legal Tender or
non-callable United States Government Obligations, or a combination thereof,
has theretofore been deposited with the Trustee or the Paying Agent in trust or
segregated and held in trust by the Company and thereafter repaid to the
Company, as provided in Section 9.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder, or if:
(a) either (i) 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 Securities under
arrangements satisfactory to the Trustee for the giving of such notice
or (ii) all Securities have otherwise become due and payable
hereunder;
(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, United States Legal
Tender or non-callable United States Government Obligations, or a
combination thereof, in such amount as is sufficient without
consideration of reinvestment of such interest, to pay and discharge
the principal and interest on the outstanding Securities to maturity
or redemption, as well as the Trustee's fees and expenses; provided
that the Trustee shall have been irrevocably instructed to apply such
United States Legal Tender to the payment of said principal and
interest with respect to the Securities; provided further that no
deposits made pursuant to this Section 9.01(b) shall cause the Trustee
to have a conflicting interest as defined in and for the purposes of
the TIA; provided further that, as confirmed by an Opinion of Counsel,
no such deposit shall result in the Company, the Trustee or the trust
becoming or being deemed to be an "investment company" under the
Investment Company Act of 1940;
(c) no Default or Event of Default with respect to this
Indenture or the Securities shall have occurred and be continuing on
the date of such deposit or shall occur as a result of such deposit
and such deposit will not result in a breach or violation of, or
constitute a default under, the Senior Secured Credit Facility or any
other material instrument to which the Company is a party or by which
it is bound (other than a Default or Event of Default resulting from
the incurrence of Indebtedness, all or a portion of which will be used
to defease the Securities concurrently with such incurrence);
(d) the Company shall have paid all other sums payable by it
hereunder; and
(e) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent providing for or relating to the termination of
the Company's obligations under the Securities and this Indenture have
been complied with. Such Opinion of Counsel shall also state that such
satisfaction and discharge does not result in a default under any
agreement or instrument then known to such counsel that binds or
affects the Company.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.05, 2.06, 2.07, 2.08, 4.01, 4.02, 7.07, 9.05 and 9.06
shall survive until the Securities are no longer outstanding pursuant to the
last
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paragraph of Section 2.08. After the Securities are no longer outstanding, the
Company's obligations in Sections 7.07, 9.05 and 9.06 shall survive such
satisfaction and discharge.
After such delivery or irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's obligations
under the Securities and this Indenture except for those surviving obligations
specified above.
(B) The Company may not discharge any of its obligations
with regard to outstanding Securities or discharge any of the obligations of
the Guarantors with regard to the Subsidiary Guarantees that relate to:
(a) the rights of Holders of outstanding Securities to
receive payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due from the trust
referred to below;
(b) the Company's obligations with respect to the Securities
concerning issuing temporary Securities, registration of Securities,
mutilated, destroyed, lost or stolen Securities and the maintenance of
an office or agency for payment and money for security payments held
in trust;
(c) the rights, powers, trusts, duties and immunities of the
Trustee, and the Company's obligations in connection therewith; and
(d) the Legal Defeasance obligations contained in this
Article Nine.
SECTION 9.02 Legal Defeasance and Covenant Defeasance.
(a) The Company may, at its option and at any time, elect to
have either paragraph (b) or (c) below be applied to all outstanding Securities
upon compliance with the conditions set forth in Section 9.03.
(b) Upon exercise under paragraph (a) hereof of the option
applicable to this paragraph (b), the Company and, if it so selects, each of the
Guarantors, shall, subject to the satisfaction of the conditions set forth in
Section 9.03, be deemed to have been discharged from its obligations with
respect to all outstanding Securities on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 9.04
hereof and the other Sections of this Indenture referred to in (i) and (ii)
below, and to have satisfied all its other obligations under such Securities and
this Indenture (and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging the same), except for the
following provisions, which shall survive until otherwise terminated or
discharged hereunder:
(i) the rights of Holders of outstanding Securities to
receive solely from the trust fund described in Section 9.04 hereof,
and as more fully set forth in such Section, payments in respect of
the principal of and interest on such Securities when such payments
are due;
(ii) the Company's obligations with respect to such
Securities under Article Two and Section 4.02 hereof;
(iii) the rights, powers, trusts, duties and immunities of
the Trustee hereunder and the Company's obligations in connection
therewith; and
(iv) this Article Nine.
Subject to compliance with this Article Nine, the Company may
exercise its option under this paragraph (b) notwithstanding the prior exercise
of its option under paragraph (c) hereof.
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(c) Upon the Company's exercise under paragraph (a)
hereof of the option applicable to this paragraph (c), the Company shall,
subject to the satisfaction of the conditions set forth in Section 9.03 hereof,
be released from its obligations under the covenants contained in Sections 4.03
through 4.06, inclusive, Sections 4.08 through 4.10, inclusive, Sections 4.12
through 4.20, inclusive, and Article Five hereof with respect to the
outstanding Securities on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Securities shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Securities shall not be deemed outstanding for accounting purposes). For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such 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 or Default under Section 6.01(iii)
hereof, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby. In addition, upon the Company's
exercise under paragraph (a) hereof of the option applicable to this paragraph
(c), subject to the satisfaction of the conditions set forth in Section 9.03
hereof, Sections 6.01(iv), 6.01(v) and 6.01(vi) shall not constitute Events of
Default.
SECTION 9.03 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
either Section 9.02(b) or 9.02(c) hereof to the outstanding Securities:
In order to exercise either Legal Defeasance or Covenant
Defeasance:
(a) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants selected by the Company, to pay the principal
of, premium, if any, and interest on the outstanding Securities on the stated
maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Securities are being defeased to maturity or
to a particular redemption date;
(b) in the case of Legal Defeasance, the Company shall
have delivered to the Trustee an opinion of counsel reasonably acceptable to
the Trustee confirming that (a) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling or (b) since the Issue
Date, there has been a change in the applicable federal income tax law, in
either case to the effect that, and based thereon such opinion of counsel shall
confirm that, the Holders of the outstanding Securities will not recognize
income, gain or loss for federal income tax purposes as a result of such Legal
Defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Company
shall have delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee confirming that the Holders of the outstanding Securities will
not recognize income, gain or loss for federal income tax purposes as a result
of such Covenant Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred
and be continuing either: (a) on the date of such deposit (other than a Default
or Event of Default arising in connection with the borrowing of funds to be
applied to such deposit); or (b) or insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period ending
on the 91st day after the date of deposit;
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(e) such Legal Defeasance or Covenant Defeasance will
not result in a breach or violation of, or constitute a default under the
Senior Secured Credit Facility or any other material agreement or instrument
(other than the Indenture) to which the Company or any of its Restricted
Subsidiaries is a party or by which the Company or any of its Restricted
Subsidiaries is bound;
(f) the Company must have delivered to the Trustee an
opinion of counsel to the effect that after the 91st day following the deposit,
the trust funds will not be subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting creditors' rights
generally;
(g) the Company must deliver to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders over the other creditors of the Company with
the intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and
(h) the Company must deliver to the Trustee an Officer's
Certificate and an opinion of counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have been
complied with.
Notwithstanding the foregoing, the Opinion of Counsel
required by clause (b) above with respect to a Legal Defeasance need not be
delivered if all Securities not theretofore delivered to the Trustee for
cancellation (x) have become due and payable, (y) will become due and payable
on the maturity date within one year or (z) are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the expense of, the
Company.
SECTION 9.04 Application of Trust Money.
The Trustee or Paying Agent shall hold in trust United States
Legal Tender or United States Government Obligations deposited with it pursuant
to this Indenture, and shall apply the deposited United States Legal Tender and
the money from United States Government Obligations in accordance with this
Indenture to the payment of principal of and interest on the Securities. Unless
otherwise agreed in writing between the Company and the Trustee, the Trustee
shall deposit any United States Legal Tender that it holds pursuant to this
Indenture for a period longer than one Business Day in an overnight money
market account at any bank organized under the laws of the United States of
America or any state thereof having combined capital and surplus of not less
than $250 million. All interest earned on such funds held in the account shall
be remitted to the account.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the United States Legal
Tender or United States Government Obligations deposited pursuant to Section
9.03 hereof or the principal and interest received in respect thereof other
than any such tax, fee or other charge which by law is for the account of the
Holders of the outstanding Securities.
Anything in this Article Nine to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon the Company's request any United States Legal Tender or United States
Government Obligations held by it as provided in Section 9.03 hereof 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 that would then be required to be deposited to
effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 9.05 Repayment to Company.
Subject to this Article Nine, the Trustee and the Paying
Agent shall promptly pay to the Company upon request any excess United States
Legal Tender or United States Government Obligations held by them at any time
and thereupon shall be relieved from all liability with respect to such money.
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal, premium, if any, or interest
that remains unclaimed for two years; provided that the Trustee or such Paying
Agent, before being required to make any payment, may at the expense of the
Company cause to be published once in a newspaper of
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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 such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person.
SECTION 9.06 Reinstatement.
If the Trustee or Paying Agent is unable to apply any United
States Legal Tender or United States Government Obligations in accordance with
this Article Nine by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Nine until such time as the
Trustee or Paying Agent is permitted to apply all such United States Legal
Tender or United States Government Obligations in accordance with this Article
Nine; provided that if the Company has made any payment of interest on or
principal of any Securities because of the reinstatement of their obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the United States Legal Tender or United States
Government Obligations held by the Trustee or Paying Agent.
ARTICLE TEN
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01 In General.
Except as provided in Sections 10.02, 10.03 and 10.04, this
Indenture or the Securities may be amended, supplemented or otherwise modified
with the consent of the Company and the Holders of at least a majority in
principal amount of the Securities then outstanding (including consents
obtained in connection with a purchase of, or tender offer or exchange offer
for, the Securities), and any existing Default or Event of Default or
compliance with any provision of the Indenture or the Securities may be waived
with the consent of the Holders of a majority in principal amount of the then
outstanding Securities (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for, the Securities.)
It shall not be necessary for the consent of the Holders
under this Section 10.03 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
SECTION 10.02 Without Consent of Holders.
The Company, each Guarantor and the Trustee may amend,
supplement, waive or otherwise modify provisions of this Indenture, the
Securities or the Guarantees without notice to or consent of any Holder:
(a) to cure any ambiguity, to correct or supplement any
provision in this Indenture that may be defective or inconsistent with any
other provisions in this Indenture, or to make any other provisions with
respect to matters or questions arising under this Indenture; provided that
such actions taken pursuant to this clause (a) do not, in the opinion of the
Trustee, adversely affect the interests of the Holders in any material respect;
(b) to evidence the succession of another Person to the
Company or any Guarantor and the assumption by any such successor of the
covenants of the Company or any Guarantor in this Indenture and in the
Securities in the case of a merger or consolidation or sale of all or
substantially all of the Company's assets;
(c) to add to the covenants of the Company or any
Guarantor for the benefit of the Holders, or to surrender any right or power
herein conferred upon the Company or any Guarantor or to make any change that
does not adversely affect the legal rights under the Indenture of any such
Holder;
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(d) to provide for uncertificated Securities in addition
to or in place of the certificated Securities;
(e) to evidence and provide for the acceptance of
appointment under this Indenture by a successor Trustee;
(f) to comply with any requirements of the Commission in
order to effect and maintain the qualification of this Indenture under the TIA;
(g) to release any Guarantor from its Guarantee
(including in connection with a sale of all of the Capital Stock or all or
substantially all of the assets of such Guarantor) pursuant to the requirements
of Section 11.06 or to add a Guarantor pursuant to the requirements of Section
4.23; or
(h) to provide for the issuance of Securities subsequent
to the Issue Date pursuant to Section 2.02.
In formulating its opinion on the matters in clause (a), the
Trustee will be entitled to be provided with and rely on such evidence as it
deems appropriate, including, without limitation, on an Opinion of Counsel.
SECTION 10.03 With Majority Consent of Holders.
Subject to Sections 6.07 and 10.01, the Company and each
Guarantor, when authorized by a resolution of their respective Boards of
Directors, and the Trustee may amend or supplement this Indenture or the
Securities then outstanding (including consents obtained in connection with a
tender offer or exchange offer for Securities), or waive any existing default
or compliance with any provision hereof or thereof, with the written consent of
the Holders of at least a majority in principal amount of the outstanding
Securities (including, without limitation, consents obtained in connection with
a purchase of, or tender offer or exchange offer for, Securities).
Notwithstanding the preceding paragraph, without the consent
of each Holder affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.04, may not:
(a) reduce the principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity
of any Security or alter the provisions with respect to the redemption of the
Securities (other than provisions relating to the repurchase of Securities at
the Holders' option under Sections 4.05 or 4.14);
(c) reduce the rate of or change the time for payment of
interest on any Security;
(d) waive a Default or Event of Default in the payment
of principal of or premium, if any, or interest on the Securities (except a
rescission of acceleration of the Securities by the Holders of at least a
majority in aggregate principal amount of the Securities and a waiver of the
payment default that resulted from such acceleration);
(e) make any Security payable in money other than that
stated in the Securities;
(f) make any change in the provisions of Section 6.04;
(g) waive a redemption payment with respect to any
Security (other than a payment required by one of the covenants described under
Section 4.05 or 4.14); or
(h) make any change in the preceding amendment and
waiver provisions.
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It shall not be necessary for the consent of the Holders
under this Section 10.03 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
10.03 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 amendment, supplement or
waiver.
SECTION 10.04 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.05 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of that Security or portion of that Security that evidences
the same debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security. Subject to the following paragraph, any
such Holder or subsequent Holder may revoke the consent as to such Holder's
Security or portion of such Security 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 Securities
have consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
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 consent to such
amendment, supplement or waiver or to revoke any consent previously given,
whether or not such persons continue to be Holders of such Securities 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 (a) through (h) of Section 10.03. In that case the amendment,
supplement or waiver shall bind each Holder of a Security who has consented to
it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 10.06 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determine, the Company in exchange for the Security
shall issue and the Trustee shall authenticate a new Security that reflects the
changed terms. Failure to make the appropriate notation or issue a new Security
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 10.07 Trustee to Sign Amendments, etc.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article Ten is
authorized or permitted by this Indenture and that such amendment, supplement
or waiver constitutes the legal, valid and binding obligation of the Company
and each Guarantor, enforceable in accordance with its terms (subject to
customary exceptions). 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 or otherwise.
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ARTICLE ELEVEN
GUARANTEE
SECTION 11.01 Unconditional Guarantee.
Each Guarantor, jointly and severally, hereby unconditionally
guarantees to each Holder of a Security authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns that: the principal
of and interest on the Securities will be promptly paid in full when due,
subject to any applicable grace period, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and interest on any overdue
interest on the Securities and all other obligations of the Company to the
Holders or the Trustee hereunder or under the Securities will be promptly paid
in full or performed, and in the case of any extension of time of payment, or
renewal of any securities, the same shall be paid in full when due or performed
in accordance with the terms of such extension or renewal, all in accordance
with the terms hereof and thereof; subject, however, to the limitations set
forth in Section 11.03. Each Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any waiver or consent by any Holder of the Securities with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of
such Guarantor. Each Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that the Guarantee
will not be discharged except by complete performance of the obligations
contained in the Securities and this Indenture. If any Holder or the Trustee is
required by any court or otherwise to return to the Company or any Guarantor or
any custodian, trustee, liquidator or other similar official acting in relation
to the Company or a Guarantor, any amount paid by the Company or a Guarantor to
the Trustee or such Holder, the Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
further agrees that, as between such Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Six for the purpose
of the Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any acceleration of such obligations as provided in
Article Six, such obligations (whether or not due and payable) shall become due
and payable by such Guarantor for the purpose of the Guarantee.
SECTION 11.02 Severability.
(a) In case any provision of this Article Eleven shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
(b) No stockholder, member, officer, director, employee
or incorporator, past, present or future, or any Guarantor, as such, shall have
any personal liability under this Note Guarantee by reason of his, her or its
status as such stockholder, member, officer, director, employee or
incorporator.
SECTION 11.03 Limitation of Guarantor's Liability.
Each Guarantor, and by its acceptance hereof each Holder and
the Trustee, hereby confirms that it is the intention of all such parties that
the Guarantee pursuant to this Article Eleven does not constitute a fraudulent
transfer or conveyance for purposes of Title 11 of the United States Code, as
amended, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar U.S. Federal or state or other applicable law. To effectuate
the foregoing intention, each Holder and each Guarantor hereby irrevocably
agrees that the obligations of a Guarantor under its Guarantee shall be limited
to the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such Guarantor, and after giving effect to any collections
from or payments made by or on behalf of such Guarantor in respect of the
obligations of such Guarantor pursuant to Section 11.04, result in the
obligations of such Guarantor not constituting such a fraudulent transfer or
conveyance.
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SECTION 11.04 Execution of Guarantee.
Each Guarantor hereby agrees to execute a guarantee to be
endorsed on and made a part of each Security ordered to be authenticated and
delivered by the Trustee. Each Guarantor hereby agrees that its guarantee set
forth in Section 11.01 shall remain in full force and effect notwithstanding
any failure to endorse on each Security a guarantee. Each such guarantee shall
be signed on behalf of each Guarantor by its Officer prior to the
authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of such guarantee on behalf of such Guarantor. Such
signature upon the guarantee may be a manual or facsimile signature of such
Officer and may be imprinted or otherwise reproduced on the guarantee, and in
case such Officer who shall have signed the guarantee shall cease to be such
Officer before the Security on which such guarantee is endorsed shall have been
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the Person who signed the guarantee had not ceased to be such officer of
such Guarantor.
SECTION 11.05 [Intentionally omitted].
SECTION 11.06 Release of Guarantor from Subsidiary Guarantee.
The Subsidiary Guarantee of a Guarantor will be automatically
and unconditionally released without any action on the part of the Trustee or
any Holder: (a) in connection with any sale or other disposition of all or
substantially all of the assets of that Guarantor (including by way of merger
or consolidation), if the Company applies the Net Proceeds of that sale or
other disposition, in accordance with Section 4.05; or (b) in connection with
any sale of all of the Capital Stock of a Guarantor, provided the Company
applies the Net Proceeds of that sale in accordance with Section 4.05; or (c)
if the Company designates any Restricted Subsidiary that is a Guarantor as an
Unrestricted Subsidiary.
In addition, concurrently with any Legal Defeasance or
Covenant Defeasance, the Guarantors shall be released from all of their
Obligations under their Subsidiaries' Guarantees.
ARTICLE TWELVE
[THIS ARTICLE HAS BEEN INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls.
This Indenture is subject to the provisions of the TIA that
are required to be a part of any indenture subject to the TIA. If any provision
of this Indenture modifies any TIA provision that may be so modified, such TIA
provision shall be deemed to apply to this Indenture as so modified; provided
that this Section shall not of itself require that this Indenture or the
Trustee be qualified under the TIA or constitute any admission or
acknowledgment by any party hereto that any such qualification is required
prior to the time this Indenture and the Trustee are required by the TIA to be
so qualified. If any provision of this Indenture excludes any TIA provision
that may be so excluded, such TIA provision shall be excluded from this
Indenture.
The provisions of TIA Sections 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
74
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SECTION 13.02 Notices.
Any notice or communication shall be sufficiently given if in
writing (which may be via facsimile) and delivered in person, by facsimile and
confirmed by overnight courier, or mailed by first-class mail addressed as
follows:
if to the Company and the Guarantors:
Worldwide Flight Services, Inc.
0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with copies to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee: Xxx Xxxxx
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Each party by notice to the others may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage
prepaid, to a Holder, including any notice delivered in connection with TIA
Section 310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b),
shall be mailed to such Holder at the address set forth on the list maintained
pursuant to Section 2.05 and shall be sufficiently given to him if so mailed
within the time prescribed. To the extent required by the TIA, any notice or
communication shall also be mailed to any Person described in TIA Section
313(c).
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.
Except for a notice to the Trustee, which is deemed given only when received,
if a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
75
-70-
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice.
SECTION 13.03 Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take or refrain from taking any action under this Indenture after the date
hereof, the Company shall furnish to the Trustee at the request of the Trustee:
(1) 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
(2) an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with, and such other opinions
as the Trustee may reasonably require.
SECTION 13.05 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:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such 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
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; provided
that with respect to matters of fact an Opinion of Counsel may rely on
an Officers' Certificate or certificates of public officials.
SECTION 13.06 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 13.07 Governing Law.
This Indenture and the Securities will be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
76
-71-
SECTION 13.08 No Recourse Against Others.
No director, officer, employee, stockholder or member of the
Company, as such, shall have any liability for any obligations of the Company
under the Securities 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 Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
SECTION 13.09 Successors.
All agreements of a party to this Indenture contained in this
Indenture shall bind such party's successors.
SECTION 13.10 Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 13.11 Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and a Holder shall have no claim therefor against any party
hereto.
SECTION 13.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement. Any such indenture, loan or debt agreement
may not be used to interpret this Indenture.
SECTION 13.13 Legal Holidays.
If a payment date is a not a Business Day at a place of
payment, payment may be made at that place on the next succeeding Business Day,
and no interest shall accrue for the intervening period.
SECTION 13.14 No Personal Liability of Directors, Officers, Employees
and Stockholders.
No director, officer, employee, incorporator or stockholder
of the Company or any Guarantor, as such, shall have any liability for any
obligations of the Company or the Guarantors under the Securities, the
Indenture, the Subsidiary Guarantees or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Securities. The waiver may not be
effective to waive liabilities under the federal securities laws.
SECTION 13.15 Table of Contents, Headings, etc.
The Table of Contents and Headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference
only, are not to be considered a part of this Indenture, and shall in no way
modify or restrict any of the terms or provisions hereof.
[Remainder of page intentionally left blank; signature pages follow]
77
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
COMPANY:
WORLDWIDE FLIGHT SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
GUARANTORS:
WORLDWIDE FLIGHT FINANCE COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
WORLDWIDE FLIGHT SECURITY SERVICE
CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
MIAMI INTERNATIONAL AIRPORT CARGO
FACILITIES & SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
MIAMI AIRCRAFT SUPPORT, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
INTERNATIONAL ENTERPRISES GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
S-1
78
TRUSTEE:
THE BANK OF NEW YORK
By: /s/ Van X. Xxxxx
---------------------------------------
Name: Van X. Xxxxx
Title: Assistant Vice President
S-2
79
EXHIBIT A
WORLDWIDE FLIGHT SERVICES, INC.
12 1/4% Senior Note due 2007, Series A
CUSIP Number: 981587 AA6
No. 1 $130,000,000
WORLDWIDE FLIGHT SERVICES, INC., a Delaware corporation (the
"COMPANY", which term includes any successor), for value received promises to
pay to Cede & Co. or registered assigns, the principal sum of One Hundred
Thirty Million Dollars ($130,000,000.00), on August 15, 2007.
Interest Payment Dates: February 15 and August 15, commencing
on February 15, 2000.
Interest Record Dates: February 1 and August 1.
Reference is made to the further provisions of this Security
contained herein and the Indenture (as defined), which will for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to
be signed manually or by facsimile by its duly authorized officers.
WORLDWIDE FLIGHT SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Executive Officer
Dated: August 12, 1999
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 12 1/4% Senior Notes due 2007, Series A,
described in the within-mentioned Indenture.
Dated: August 12, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By:
-----------------------------------------
Authorized Signatory
Exh. A-3
80
[REVERSE OF SECURITY]
WORLDWIDE FLIGHT SERVICES, INC.
12 1/4% Senior Note due 2007, Series A
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY,
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL
INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
(B) IT HAS ACQUIRED THIS SECURITY IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) TO
A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S OF THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS
SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF
SECURITIES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED
STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S
UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING
THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY. THIS SECURITY IS NOT
Exh. A-4
81
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS
SECURITY AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, AND TRANSFERS OF INTERESTS IN THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.16 OF THE INDENTURE.
Exh. A-5
82
1. Interest.
The Company promises to pay interest on the principal amount
of this Security at the rate per annum shown above. Cash interest on the
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from August 12, 1999. The Company will
pay interest semi-annually in arrears on each Interest Payment Date, commencing
February 15, 2000. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
In addition, after giving effect to any applicable grace
period, the Company shall pay interest on overdue principal and on overdue
installments of interest to the extent lawful from time to time on demand, in
each case at the rate borne by this Security.
The Securities are not entitled to the benefit of any
mandatory sinking fund.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Interest Record Date immediately preceding the Interest
Payment Date even if the Securities are canceled on registration of transfer or
registration of exchange after such Interest Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in United States Legal Tender (as
defined in the Indenture referred to below). However, the Company may pay
principal and interest by wire transfer of Federal funds (provided that the
Paying Agent shall have received wire instructions on or prior to the relevant
Interest Record Date), or interest by check payable in such United States Legal
Tender. The Company may deliver any such interest payment to the Paying Agent
or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders. The Company may, subject to certain
exceptions, act as Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated
as of August 12, 1999 (the "Indenture"), by and among the Company, the
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Company designated as its 12 1/4% Senior
Notes due 2007 issued under the Indenture. The aggregate principal amount of
Securities which may be issued under the Indenture is limited (except as
otherwise provided in the Indenture) to $300.0 million in one or more series;
provided that the aggregate principal amount of Initial Securities on the Issue
Date shall not exceed $130.0 million. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "TIA"), as in effect on the
date of the Indenture (except as otherwise indicated in 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 Securities are subject to
all such terms, and Holders are referred to the Indenture and the TIA for a
statement of them. In the event of any inconsistency between the terms of this
Security and the terms of the Indenture, to the extent permitted by law, the
terms of the Indenture shall control.
5. Guarantee.
The obligations of the Company hereunder are guaranteed on a
senior basis by the Guarantors.
Exh. A-6
83
6. Optional Redemption.
The Securities will be redeemable, at the Company's option,
in whole at any time or in part from time to time, after August 15, 2003, upon
not less than 30 nor more than 60 days' notice, at the following redemption
prices (expressed as percentages of the principal amount thereof) if redeemed
during the twelve-month period commencing on August 15, of the year set forth
below, plus, in each case, accrued and unpaid interest thereon, if any, to the
date of redemption:
YEAR PERCENTAGE
----------------------- ----------
2003 .................. 106.125%
2004................... 104.594%
2005................... 103.063%
2006................... 101.531%
--------
2007 and thereafter.... 100.000%
7. Optional Redemption upon Public Equity Offerings.
At any time, or from time to time, on or prior to August 15,
2002, the Company may, at its option, use the net cash proceeds of one or more
Public Equity Offerings (as defined below) to redeem up to 35% of the initial
aggregate principal amount of Securities issued on the Issue Date, at a
redemption price equal to 112.250% of the principal amount thereof plus accrued
and unpaid interest thereon to the date of redemption; provided that at least
65% of the initial aggregate principal amount of Securities issued in the
Offering remains outstanding immediately after any such redemption. In order to
effect the foregoing redemption with the proceeds of any Public Equity
Offering, the Company shall make such redemption not more than 90 days after
the consummation of any such Public Equity Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of common stock of the Company pursuant
to a registration statement filed with the Commission in accordance with the
Securities Act, in which the gross proceeds to the Company are at least $20.0
million.
8. Selection and Notice of Redemption.
In the event that less than all of the Securities are to be
redeemed at any time, selection of such Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed or, if such
Securities are not then listed on a national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided, however, that no Securities of a principal amount of $1,000 or less
shall be redeemed in part; provided, further, that if a partial redemption is
made with the proceeds of a Public Equity Offering, selection of the Securities
or portions thereof for redemption shall be made by the Trustee only on a pro
rata basis or on as nearly a pro rata basis as is practicable (subject to DTC
procedures), unless such method is otherwise prohibited. Notice of redemption
shall be mailed by first-class mail at least 30 but not more than 60 days
before the redemption date to each Holder of Securities to be redeemed at its
registered address. If any Security is to be redeemed in part only, the notice
of redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Security. On and after the
redemption date, interest will cease to accrue on Securities or portions
thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price pursuant
to the Indenture.
9. Change of Control Offer.
Following the occurrence of a Change of Control, the Company
shall, within 30 days, make a Change of Control Offer for all Securities then
outstanding at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Change of Control
Exh. A-7
84
Payment Date (subject to the right of Holders of record on the relevant Interest
Record Date to receive interest due on the relevant Interest Payment Date).
10. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to
make an Asset Sale Offer for Securities at a purchase price equal to 100% of
the principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the Asset Sale Offer Payment Date (subject to the right of Holders of record
on the Interest Relevant Record Date to receive interest due on the relevant
Interest Payment Date) with the excess proceeds of certain asset dispositions.
11. Denominations; Transfer; Exchange.
The Securities are in registered, global form, without
coupons, in denominations of $1,000 and integral multiples of $1,000. A Holder
shall register the transfer of or exchange of Securities 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 of any Securities or portions thereof selected for redemption, except
the unredeemed portion of any Security being redeemed in part.
12. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
13. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Company at its written request. After that, all liability of the Trustee
and such Paying Agent with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the
Indenture and the Securities, except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained in the
Indenture and the Securities, in each case upon satisfaction of certain
conditions specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the
Securities may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
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 Securities then outstanding. Without
notice to or consent of any Holder, the Company, any Guarantor and the Trustee
may amend or supplement the Indenture and the Securities to, among other
things, cure any ambiguity, defect or inconsistency, provide for uncertificated
Securities in addition to or in place of certificated Securities 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 materially
adversely affect the rights of any Holder of a Security.
16. Restrictive Covenants.
The Indenture contains certain covenants that, among other
things, limit the ability of the Company and the Restricted Subsidiaries to
make restricted payments, to incur indebtedness, to create liens, to sell
Exh. A-8
85
assets, to permit restrictions on dividends and other payments by Restricted
Subsidiaries to the Company, to consolidate, merge or sell all or substantially
all of its assets or to engage in transactions with affiliates or certain other
related persons. The limitations are subject to a number of important
qualifications and exceptions. The Company must report annually to the Trustee
on compliance with such limitations.
17. Defaults and Remedies.
If an Event of Default arising from certain events of
bankruptcy or insolvency occurs and is continuing, the Securities then
outstanding shall become due and payable immediately without further action or
notice. If any other Event of Default occurs and is continuing the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes,
may declare all the Notes due and payable in the manner provided therefore in
the Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Securities 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
Securities then outstanding to direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or Events of Default if it determines that withholding
notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company or its respective Affiliates as if it were not the
Trustee.
19. No Recourse Against Others.
No director, officer, employee, stockholder or incorporator
of the Company or any Guarantor, as such, shall have any liability for any
obligation of the Company or the Guarantors under the Securities or the
Indenture or the Subsidiary Guarantees or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Security 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).
22. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the Holders. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
23. Registration Rights.
Pursuant to the Registration Rights Agreement, the Company
will be obligated upon the occurrence of certain events to consummate an
exchange offer pursuant to which the Holder of this Security shall
Exh. A-9
86
have the right to exchange this Security for a 12 1/4% Senior Note due 2007,
Series B, of the Company which has been registered under the Securities Act, in
like principal amount and having terms identical in all material respects to the
Initial Securities. The Holders shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
24. Governing Law.
The Indenture and the Securities will be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect to applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
[Remainder of page intentionally left blank]
Exh. A-10
87
[FORM OF GUARANTEE]
SENIOR GUARANTEE
Each of the Guarantors (capitalized terms used herein have
the meanings given such terms in the Indenture referred to in the Security upon
which this notation is endorsed) hereby unconditionally guarantees on a senior
basis (such guarantee being referred to herein as the "Guarantee") the due and
punctual payment of the principal of, premium, if any, and interest on the
Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal, premium and interest on
the Securities, and the due and punctual performance of all other obligations
of the Company to the Holders or the Trustee, all in accordance with the terms
set forth in Article Eleven of the Indenture.
The obligations of the Guarantor to the Holders and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Eleven of the Indenture.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
this Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
[Signatures on the following page]
Xxx. X-00
00
XXXXXXXXXX:
WORLDWIDE FLIGHT FINANCE COMPANY
By:
---------------------------------------
Name:
Title:
WORLDWIDE FLIGHT SECURITY SERVICE
CORPORATION
By:
---------------------------------------
Name:
Title:
MIAMI INTERNATIONAL AIRPORT CARGO
FACILITIES & SERVICES, INC.
By:
---------------------------------------
Name:
Title:
MIAMI AIRCRAFT SUPPORT, INC.
By:
---------------------------------------
Name:
Title:
INTERNATIONAL ENTERPRISES GROUP, INC.
By:
---------------------------------------
Name:
Title:
Exh. A-12
89
ASSIGNMENT FORM
I or we assign and transfer this Security to
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
-------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
------------------- ------------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
-------------------------------------
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program reasonably acceptable to the Trustee)
Exh. A-13
90
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.05 or Section 4.14 of the Indenture, check the
appropriate box:
Section 4.05 [ ]
Section 4.14 [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to [Section 4.05] or [Section 4.14] of the
Indenture, state the amount: $
----------
Dated: Your Signature:
------------------- -----------------------
Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
------------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Xxx. X-00
00
XXXXXXX X
[FORM OF SERIES B SECURITY]
WORLDWIDE FLIGHT SERVICES, INC.
12 1/4% Senior Note due 2007, Series B
CUSIP Number: ___________
No. ___ $130,000,000
WORLDWIDE FLIGHT SERVICES, INC., a Delaware corporation (the
"Company", which term includes any successor), for value received promises to
pay to Cede & Co. or registered assigns, the principal sum of One Hundred
Thirty Million Dollars ($130,000,000.00), on August __, 2007.
Interest Payment Dates: February 15 and August 15, commencing
on February 15, 2000.
Interest Record Dates: February 1 and August 1.
Reference is made to the further provisions of this Security contained
herein and the Indenture (as defined), which will for all
purposes have the same effect as if set forth at this place.
Exh. B-1
92
(REVERSE OF SECURITY)
WORLDWIDE FLIGHT SERVICES, INC.
12 1/4% Senior Note due 2007, Series B
1. Interest.
The Company promises to pay interest on the principal amount
of this Security at the rate per annum shown above. Cash interest on the
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from August 12, 1999. The Company will
pay interest semi-annually in arrears on each Interest Payment Date, commencing
February 15, 2000. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
In addition, the Company shall pay interest on overdue
principal and on overdue installments of interest (without regard to any
applicable grace periods) to the extent lawful from time to time on demand, in
each case at the rate borne by this Security.
The Securities are not entitled to the benefit of any
mandatory sinking fund.
2. Method of Payment.
The Company shall pay interest on the Securities (except
defaulted interest) to the persons who are the registered Holders at the close
of business on the Interest Record Date immediately preceding the Interest
Payment Date even if the Securities are canceled on registration of transfer or
registration of exchange after such Interest Record Date. Holders must
surrender Securities to a Paying Agent to collect principal payments. The
Company shall pay principal and interest in United States Legal Tender.
However, the Company may pay principal and interest by wire transfer of Federal
funds (provided that the Paying Agent shall have received wire instructions on
or prior to the relevant Interest Record Date), or interest by check payable in
such United States Legal Tender. The Company may deliver any such interest
payment to the Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent or
Registrar without notice to the Holders. The Company may, subject to certain
exceptions, act as Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated
as of August 12, 1999 (the "Indenture"), by and among the Company, the
Guarantors and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. This Security is one of a duly
authorized issue of Securities of the Company designated as its 12 1/4% Senior
Notes due 2007 issued under the Indenture. The aggregate principal amount of
Securities which may be issued under the Indenture is limited (except as
otherwise provided in the Indenture) to $300.0 million in one or more series;
provided that the aggregate principal amount of Initial Securities on the Issue
Date shall not exceed $130.0 million. The terms of the Securities include those
stated in the Indenture and those made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (the "TIA"), as in effect on the
date of the Indenture (except as otherwise indicated in the Indenture) until
such time
Exh. B-2
93
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 Securities are subject to all such terms,
and Holders are referred to the Indenture and the TIA for a statement of them.
In the event of any inconsistency between the terms of this security and the
terms of this Indenture, to the extent permitted by law, the terms of the
Indenture shall control.
5. Guarantee.
The obligations of the Company hereunder are guaranteed on a
senior basis by the Guarantors.
6. Optional Redemption.
The Securities will be redeemable, at the Company's option,
in whole at any time or in part from time to time, on and after August 15,
2003, upon not less than 30 nor more than 60 days' notice, at the following
redemption prices (expressed as percentages of the principal amount thereof) if
redeemed during the twelve-month period commencing on August 15, of the year
set forth below, plus, in each case, accrued and unpaid interest thereon, if
any, to the date of redemption:
YEAR PERCENTAGE
----------------------------- ------------------
2003........................... 106.125%
2004........................... 104.594%
2005........................... 103.063%
2006........................... 101.531%
2007 and thereafter............ 100.000%
7. Optional Redemption upon Public Equity Offerings.
At any time, or from time to time, on or prior to August 15,
2002, the Company may, at its option, use the net cash proceeds of one or more
Public Equity Offerings (as defined below) to redeem up to 35% of the initial
aggregate principal amount of Securities issued in the Offering, at a
redemption price equal to 112.250% of the principal amount thereof plus accrued
and unpaid interest thereon and Liquidated Damages, if any, to the date of
redemption; provided that at least 65% of the initial aggregate principal
amount of Securities issued in the Offering remains outstanding immediately
after any such redemption. In order to effect the foregoing redemption with the
proceeds of any Public Equity Offering, the Company shall make such redemption
not more than 90 days after the consummation of any such Public Equity
Offering.
As used in the preceding paragraph, "Public Equity Offering"
means an underwritten public offering of common stock of the Company pursuant
to a registration statement filed with the Commission in accordance with the
Securities Act, in which the gross proceeds to the Company are at least $20.0
million.
8. Selection and Notice of Redemption.
In the event that less than all of the Securities are to be
redeemed at any time, selection of such Securities for redemption will be made
by the Trustee in compliance with the requirements of the principal national
securities exchange, if any, on which such Securities are listed or, if such
Securities are not then listed on a national securities exchange, on a pro rata
basis, by lot or by such method as the Trustee shall deem fair and appropriate;
provided that no Securities of a principal amount of $1,000 or less shall be
redeemed in part; provided, further, that if a partial redemption is made with
the proceeds of a Public Equity Offering, selection of the Securities or
portions thereof for redemption shall be made by the Trustee only on a pro rata
basis or on as nearly a pro rata basis as is practicable (subject to DTC
procedures), unless such method is otherwise prohibited. Notice of redemption
shall be mailed by first-class mail at least 30 but not more than 60 days
before the redemption date to each Holder of Securities to be redeemed at its
registered address. If any Security is to be redeemed in part only, the notice
of
Exh. B-3
94
redemption that relates to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in a principal amount
equal to the unredeemed portion thereof will be issued in the name of the
Holder thereof upon cancellation of the original Security. On and after the
redemption date, interest will cease to accrue on Securities or portions
thereof called for redemption as long as the Company has deposited with the
Paying Agent funds in satisfaction of the applicable redemption price pursuant
to the Indenture.
9. Change of Control Offer.
Following the occurrence of a Change of Control, the Company
shall, within 30 days, make a Change of Control Offer for all Securities then
outstanding at a purchase price in cash equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest thereon, if any, to
the Change of Control Payment Date (subject to the right of Holders of record
on the relevant Interest Record Date to receive interest due on the relevant
Interest Payment Date).
10. Limitation on Disposition of Assets.
The Company is, subject to certain conditions, obligated to
make an Asset Sale Offer for Securities at a purchase price equal to 100% of
the principal amount thereof, plus accrued and unpaid interest thereon, if any,
to the Asset Sale Offer Payment Date (subject to the right of Holders of record
on the Interest Relevant Record Date to receive interest due on the relevant
Interest Payment Date) with the excess proceeds of certain asset dispositions.
11. Denominations; Transfer; Exchange.
The Securities are in registered, global form, without
coupons, in denominations of $1,000 and integral multiples of $1,000. A Holder
shall register the transfer of or exchange of Securities 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 of any Securities or portions thereof selected for redemption, except
the unredeemed portion of any Security being redeemed in part.
12. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the
owner of it for all purposes.
13. Unclaimed Funds.
If funds for the payment of principal or interest remain
unclaimed for two years, the Trustee and the Paying Agent will repay the funds
to the Company at its written request. After that, all liability of the Trustee
and such Paying Agent with respect to such funds shall cease.
14. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the
Indenture and the Securities, except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained in the
Indenture and the Securities, in each case upon satisfaction of certain
conditions specified in the Indenture.
15. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the
Securities may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding, and any existing Default or Event of Default or compliance
with any provision may be waived with the
Exh. B-4
95
consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
Company, any Guarantor and the Trustee may amend or supplement the Indenture
and the Securities to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Securities in addition to or in place
of certificated Securities 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 materially adversely affect the rights of any Holder
of a Security.
16. Restrictive Covenants.
The Indenture contains certain covenants that, among other
things, limit the ability of the Company and the Restricted Subsidiaries to
make restricted payments, to incur indebtedness, to create liens, to sell
assets, to permit restrictions on dividends and other payments by Restricted
Subsidiaries to the Company, to consolidate, merge or sell all or substantially
all of its assets or to engage in transactions with affiliates or certain other
related persons. The limitations are subject to a number of important
qualifications and exceptions. The Company must report annually to the Trustee
on compliance with such limitations.
17. Defaults and Remedies.
If an Event of Default arising from certain events of
bankruptcy or insolvency occurs and is continuing, the Securities then
outstanding shall become due and payable immediately without further action or
notice. If any other Event of Default occurs and is continuing the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes,
may declare all the Notes due and payable in the manner provided therefore in
the Indenture. Holders of Securities may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Securities 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
Securities then outstanding to direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or Events of Default if it determines that withholding
notice is in their interest.
18. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company or its respective Affiliates as if it were not the
Trustee.
19. No Recourse Against Others.
No director, officer, employee, stockholder or incorporator
of the Company or any Guarantor, as such, shall have any liability for any
obligation of the Company or the Guarantors under the Securities or the
Indenture or the Subsidiary Guarantees or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
20. Authentication.
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on this Security.
21. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder
of a Security 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).
Xxx. X-0
00
00. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the Holders. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
23. Governing Law.
The Indenture and the Securities will be governed by, and
construed in accordance with, the laws of the State of New York but without
giving effect of applicable principles of conflicts of law to the extent that
the application of the law of another jurisdiction would be required thereby.
[Remainder of page intentionally left blank; signature page follows]
Exh. B-6
97
IN WITNESS WHEREOF, the Company has caused this Security to
be signed manually or by facsimile by its duly authorized officers.
WORLDWIDE FLIGHT SERVICES, INC.
By:
-----------------------------------------
Name:
Title:
Dated: August 12, 1999
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 12 1/4% Senior Notes due 2007, Series B,
described in the within-mentioned Indenture.
Dated: August 12, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By:
-----------------------------------------
Authorized Signatory
Exh. B-7
98
[FORM OF GUARANTEE]
SENIOR GUARANTEE
The Guarantor (capitalized terms used herein have the
meanings given such terms in the Indenture referred to in the Security upon
which this notation is endorsed) hereby unconditionally guarantees on a senior
basis (such guaranty being referred to herein as the "Guarantee") the due and
punctual payment of the principal of, premium, if any, and interest on the
Securities, whether at maturity, by acceleration or otherwise, the due and
punctual payment of interest on the overdue principal, premium and interest on
the Securities, and the due and punctual performance of all other obligations
of the Company to the Holders or the Trustee, all in accordance with the terms
set forth in Article Eleven of the Indenture.
The obligations of the Guarantor to the Holders and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Eleven of the Indenture.
This Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Securities upon which
this Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
This Guarantee shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of law.
This Guarantee is subject to release upon the terms set forth
in the Indenture.
[ ]
By:
--------------------------------------
Name:
Title:
Exh. B-8
99
ASSIGNMENT FORM
I or we assign and transfer this Security to
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
(Print or type name, address and zip code of assignee or transferee)
-------------------------------------------------------------------------------
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint_______________________________________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
------------------ ---------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
--------------------
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
Exh. B-9
100
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Section 4.05 or Section 4.14 of the Indenture, check the
appropriate box:
Section 4.05 ]
Section 4.14 ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to [Section 4.05] or [Section 4.14] of the
Indenture, state the amount: $_____________
Dated: Your Signature:
------------------ ----------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
-------------------------
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
Exh. B-10
101
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder
shall bear a legend (which would be in addition to any other legends required
in the case of a Restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR DEPOSITARY.
THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, AND TRANSFERS OF INTERESTS IN
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE
WITH THE RESTRICTIONS SET FORTH IN SECTION 2.16 OF THE INDENTURE.
