Exhibit 4.1
INTERPOOL, INC.
Issuer,
and
UNITED STATES TRUST COMPANY OF NEW YORK
Trustee
-------------------
INDENTURE
Dated as of August 5, 1997
-------------------
$75,000,000
7.20% Notes due 2007
CROSS-REFERENCE TABLE
INTERPOOL, INC.
Trust Indenture
ACT SECTION INDENTURE
ss. 310(a)(1) 7.10
(a)(2) 7.10
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 7.8
(b) 7.8; 7.10
(c) Not Applicable
ss. 311(a) 7.11
(b) 7.11
(c) Not Applicable
ss. 312(a) 2.15
(b) 11.3
(c) 11.3
ss. 313(a) 7.6
(b)(1) Not Applicable
(b)(2) 7.6
(c) 7.6; 11.2
(d) 7.6
ss. 314(a) 4.2; 11.2
(b) Not Applicable
(c)(1) 11.4
(c)(2) 11.4
(c)(3) Not Applicable
(d) Not Applicable
(e) 11.5
(f) Not Applicable
ss. 315(a) 7.1(b)
(b) 7.5; 11.2
(c) 7.1(a)
(d) 7.1(c)
(e) 6.10
ss. 316(a)(last sentence) 11.6
(a)(1)(A) 6.5
(a)(1)(B) 6.4
(a)(2) Not Applicable
(b) 6.6
ss. 317(a)(1) 6.7
(a)(2) 6.8
(b) 2.5
ss. 318(a) 11.1
----------
Note: This Cross-Reference Table shall not, for any
purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.......................................... 1
SECTION 1.2 Other Definitions.................................... 11
SECTION 1.3 Incorporation by Reference to Trust
Indenture Act........................................ 11
SECTION 1.4 Rules of Construction................................ 12
ARTICLE 2
THE SECURITIES
SECTION 2.1 Form Generally...................................... 12
SECTION 2.2 Execution and Authentication..........................13
SECTION 2.3 Form and Payment......................................13
SECTION 2.4 Registrar and Agents..................................14
SECTION 2.5 Paying Agent to Hold Money in Trust...................15
SECTION 2.6 Legends...............................................15
SECTION 2.7 Global Security.......................................16
SECTION 2.8 Interest..............................................17
SECTION 2.9 Transfer and Exchange.................................18
SECTION 2.10 Replacement Securities................................28
SECTION 2.11 Outstanding Securities................................28
SECTION 2.12 Temporary Securities..................................29
SECTION 2.13 Cancellation..........................................29
SECTION 2.14 Defaulted Interest....................................30
SECTION 2.15 Securityholder Lists..................................30
SECTION 2.16 Persons Deemed Owners.................................30
SECTION 2.17 CUSIP Number..........................................31
ARTICLE 3
REDEMPTION
SECTION 3.1 Right of Redemption.................................. 31
SECTION 3.2 Selection of Securities to be Redeemed............... 32
SECTION 3.3 Notice of Redemption by the Company.................. 32
SECTION 3.4 Effect of Notice of Redemption....................... 33
SECTION 3.5 Deposit of Redemption Price.......................... 33
SECTION 3.6 Securities Redeemed in Part.......................... 34
ARTICLE 4
COVENANTS
SECTION 4.1 Payment of the Securities.............................34
SECTION 4.2 Commission Reports....................................34
SECTION 4.3 Waiver of Stay, Extension or Usury Laws...............35
SECTION 4.4 Notice of Default.....................................35
SECTION 4.5 Compliance Certificates...............................35
SECTION 4.6 Limitation on Dividends and Other Distributions.......36
SECTION 4.7 Maintenance of Office or Agency.......................36
SECTION 4.8 Existence.............................................37
SECTION 4.9 Payment of Taxes and Other Claims.....................38
SECTION 4.10 Maintenance of Properties.............................38
SECTION 4.11 Insurance.............................................39
SECTION 4.12 Limitation on Liens...................................39
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge, etc......................... 42
SECTION 5.2 Successor Corporation or Trust Substituted.......... 42
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default................................... 43
SECTION 6.2 Acceleration..........................................45
SECTION 6.3 Other Remedies........................................45
SECTION 6.4 Waiver of Defaults and Events of Default..............46
SECTION 6.5 Control by Majority...................................46
SECTION 6.6 Rights of Holders to Receive Payment..................46
SECTION 6.7 Collection Suit by Trustee............................47
SECTION 6.8 Trustee May File Proofs of Claim......................47
SECTION 6.9 Priorities............................................48
SECTION 6.10 Undertaking for Costs.................................48
SECTION 6.11 Limitations on Suits..................................49
SECTION 6.12 Restoration of Rights and Remedies....................49
ARTICLE 7
TRUSTEE
SECTION 7.1 Duties of Trustee.....................................50
SECTION 7.2 Rights of Trustee.....................................51
SECTION 7.3 Individual Rights of Trustee..........................52
SECTION 7.4 Trustee's Disclaimer..................................52
SECTION 7.5 Notice of Defaults....................................53
SECTION 7.6 Reports by Trustee to Holders.........................53
SECTION 7.7 Compensation and Indemnity............................54
SECTION 7.8 Replacement of Trustee................................55
SECTION 7.9 Successor Trustee by Merger, etc......................56
SECTION 7.10 Eligibility; Disqualification.........................56
SECTION 7.11 Preferential Collection of Claims Against Company.....57
ARTICLE 8
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 Option to Effect Defeasance or Covenant Defeasance....57
SECTION 8.2 Defeasance and Discharge..............................57
SECTION 8.3 Covenant Defeasance...................................58
SECTION 8.4 Conditions to Defeasance or Covenant Defeasance.......59
SECTION 8.5 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.........61
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 Satisfaction and Discharge of Indenture.............. 62
SECTION 9.2 Application of Trust Funds............................63
ARTICLE 10
SUPPLEMENTAL INDENTURES
SECTION 10.1 Supplemental Indentures Without Consent of Holders....64
SECTION 10.2 Supplemental Indentures with Consent of Holders...... 64
SECTION 10.3 Compliance with Trust Indenture Act.................. 66
SECTION 10.4 Revocation and Effect of Consents.................... 66
SECTION 10.5 Notation on or Exchange of Securities................ 67
SECTION 10.6 Effect of Supplemental Indentures.................... 67
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 Trust Indenture Act Controls..........................67
SECTION 11.2 Notices...............................................68
SECTION 11.3 Communications by Holders with Other Holders..........69
SECTION 11.4 Certificate and Opinion as to Conditions Precedent....69
SECTION 11.5 Statements Required in Certificate and Opinion........70
SECTION 11.6 Rules by Trustee and Agents...........................70
SECTION 11.7 Record Date...........................................70
SECTION 11.8 Business Days.........................................71
SECTION 11.9 Governing Law.........................................71
SECTION 11.10 No Adverse Interpretation of Other Agreements.........71
SECTION 11.11 No Recourse Against Others............................71
SECTION 11.12 Successors............................................71
SECTION 11.13 Multiple Counterparts.................................71
SECTION 11.14 Table of Contents, Headings, etc......................72
SECTION 11.15 Severability..........................................72
Signatures.......................................................... 73
INDENTURE dated as of August 5, 1997 between Interpool, Inc., a
Delaware corporation (the "Company"), and United States Trust Company of New
York, a New York banking corporation (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of all Holders of the Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities or by agreement
or otherwise.
"Agent" means any Registrar, Paying Agent or agent for service of
notices and demands.
"Bankruptcy Law" means Title 11 of the U.S. Code or any similar
Federal or State law for the relief of debtors.
"Board of Directors of the Company" means the Board of Directors of
the Company or any committee of the Board.
"Board Resolution" means a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day, other than a Saturday or Sunday, which
is not a day on which banking institutions in the City of New York are
authorized or obligated by law or executive order to close.
"Capitalized Leases" of any Person means, at the time any
determination thereof is to be made, capital leases for property leased by such
Person that would at such time be required to be capitalized on the balance
sheet of such Person in accordance with generally accepted accounting
principles.
"Capital Stock" means any and all shares or other equivalents (however
designated) of capital stock, including all common stock and all preferred
stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means the
successor.
"Company Order" means a written order of the Company signed by two
Officers of the Company.
"Consolidated Indebtedness-to-Stockholders' Equity Ratio" means at any
date of determination (the "Determination Date"), the ratio of (i) the aggregate
Debt of the Company and its Subsidiaries on a consolidated basis as at the
Determination Date to (ii) the sum of (w) the stockholder's equity of the
Company and its Subsidiaries on a consolidated basis calculated in accordance
with generally accepted accounting principles as at the Determination Date, (x)
the amount set forth on the consolidated balance sheet of the Company and its
Subsidiaries under the caption "Company-obligated mandatorily redeemable
preferred securities in subsidiary grantor trusts" or a similar caption, (y) to
the extent not included in clause (w), the aggregate amount of preferred stock
of the Company (as reflected on the consolidated balance sheet of the Company
calculated in accordance with generally accepted accounting principles) which is
not subject to mandatory redemption prior to the maturity date of the
Securities, and (z) the Subordinated Indebtedness of the Company as to which no
principal payments are due until after the maturity date of the Securities (to
the extent such Subordinated Indebtedness was included in the calculation of
Debt in clause (i) above).
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate Trust.
"Custodian" means any receiver, trustee, liquidator or similar
official under any Bankruptcy Law.
"Debt" means (a) the principal of all indebtedness (i) for borrowed
money or (ii) for the deferred purchase price of property unless the price
thereof was payable in full within 12 months from the date on which the
obligation was created or (iii) evidenced by notes, bonds or other instruments
and (b) all Lease Obligations; PROVIDED, HOWEVER, that, except for purposes of
the definition of Consolidated Indebtedness-to-Stockholders' Equity Ratio, Debt
shall not include Subordinated Indebtedness as to which no scheduled principal
payments are due until after the maturity date of the Securities.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Definitive Securities" means those securities issued in fully
registered certificated form not otherwise in global form.
"Depositary" means, with respect to Securities the Company determines
will be issued as a Global Security, The Depository Trust Company, New York, New
York, another clearing agency, or any successor registered as a clearing agency
under the Exchange Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section 2.7(c).
"Dollar" or "$" means the lawful money of the United States of
America.
"Exchange Offer" means the offer that may be made pursuant to the
Registration Rights Agreement by the Company to exchange Exchange Securities for
Original Securities.
"Exchange Securities" means the 7.20% Notes due 2007, as authenticated
and issued under this Indenture in exchange for an Original Security or Original
Securities pursuant to the offer to be made pursuant to the Registration
Rights Agreement to exchange Exchange Securities for Original Securities.
"Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with the Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Holder" or "Securityholder" means the Person in whose name a Security
is registered on the Registrar's books.
"Indebtedness," as applied to any Person, means, without duplication
(i) all indebtedness for borrowed money whether or not evidenced by a promissory
note, draft or similar instrument, (ii) that portion of obligations with respect
to leases that is properly classified as a liability on a balance sheet in
accordance with generally accepted accounting principles, (iii) notes payable
and drafts accepted representing extensions of credit, (iv) any balance owed for
all or any part of the deferred purchase price of property or services, which
purchase price is due more than six months from the date of incurrence of the
obligation in respect thereof (except any such balance that constitutes (a) a
trade payable or an accrued liability arising in the ordinary course of business
or (b) a trade draft or note payable issued in the ordinary course of business
in connection with the purchase of goods or services), if and to the extent such
debt would appear as a liability upon a balance sheet of such Person prepared in
accordance with generally accepted accounting principles, and (v) any deferral,
amendment, renewal, extension, supplement or refunding of any of the foregoing
indebtedness; PROVIDED, HOWEVER, that, in computing the "Indebtedness" of any
Person, there shall be excluded any particular indebtedness if, upon or prior to
the maturity thereof and at the time of determination of such indebtedness,
there shall have been deposited with a depository in trust money (or evidences
of indebtedness if permitted by the instrument creating such indebtedness) in
the necessary amount to pay, redeem or satisfy such indebtedness as it becomes
due, and the amount so deposited shall not be included in any computation of the
assets of such Person.
"Indenture" means this Indenture as originally executed or, if amended
or supplemented as provided in Article 10, as amended or supplemented from time
to time.
"Interest Payment Date" shall have the meaning set forth in Section
2.8.
"Investment Grade" means a rating of BBB- or higher by Standard &
Poor's.
"Issue Date" means August 5, 1997.
"Lease Obligation" of a Person means all rental obligations under
leases of property (other than electronic data processing and computer equipment
and leases of office space by such Person or its Subsidiaries) either (a) which
are Capitalized Leases, or (b) if not Capitalized Leases, which are leases of
equipment which had an initial term of more than three years (including any
renewal term at the option of the lessor). The amount of Lease Obligations shall
be equal to the aggregate value of rentals payable (other than rentals
consisting of taxes, indemnities, maintenance items, replacements and other
similar charges which are in addition to the basic financial rent for the use of
the property) by the lessee thereof during the remaining term thereof, including
periods of renewal at the option of the lessor, discounted to present value
using the lessee's "incremental borrowing rate at the inception of the lease" in
accordance with Financial Accounting Standards No. 13 of the Financial Standards
Board from time to time in effect.
"Make-Whole Amount" means, in connection with any optional redemption
of any Security, the excess, if any, of (i) the aggregate present value as of
the date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of any interest accrued to the date of redemption)
that would have been payable in respect of such dollar if such redemption has
not been made, determined by discounting, on a semi-annual basis, such principal
and interest at the Reinvestment Rate (which rate shall be determined as of the
third Business Day preceding the date such notice of redemption is given) from
the respective dates on which such principal and interest would have been
payable if such redemption had not been made, over (ii) the aggregate principal
amount of the Securities being redeemed.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or Assistant Treasurer, the Secretary or Assistant
Secretary or the Controller or Assistant Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers of
the Company and otherwise complying with the requirements of Sections 11.4 and
11.5, and delivered to the Trustee or an Agent, as applicable.
"Opinion of Counsel" means a written opinion from Stroock & Stroock &
Xxxxx LLP or any other legal counsel who is reasonably acceptable to the Trustee
(which may include an employee of or counsel to the Company or the Trustee),
complying with the requirements of Sections 11.4 and 11.5, and delivered to the
Trustee or an Agent, as applicable.
"Original Securities" means the 7.20% Notes due 2007, as authenticated
and issued under this Indenture on the Issue Date.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.10 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
"Purchase Money Indebtedness" of a Person means all Debt (excluding
all Lease Obligations) of such Person which is Secured Indebtedness incurred to
finance the purchase of assets if such Debt (a) shall have been incurred
within 180 days of the acquisition of such assets by the Person whose Purchase
Money Indebtedness is being determined and (b) does not exceed in principal
amount the initial cost of such assets and shall include all extensions,
renewals and refinancings of such Debt not in excess of the principal amount
thereof outstanding immediately prior to such extension, renewal or
refinancing. The initial cost of assets may include, in addition to the purchase
price thereof and the purchase price of all accessories and equipment installed
thereon, all freight, delivery and handling charges, excise, sales and use taxes
and all other amounts which may be capitalized and included in the cost of the
assets under generally accepted accounting principles.
"Ratings Decision" shall mean, with respect to the Securities, the
rating of the Securities by Standard & Poor's as Investment Grade.
"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 specified in such Security.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of the Issue Date, by and among the Company and the Initial
Purchaser named therein as such agreement may be amended, modified or
supplemented from time to time.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective headings "This Week" and "Last Week" published in the most
recent Statistical Release under the caption "Treasury Constant Maturities:" for
the maturity (rounded to the nearest month) corresponding to the remaining life
to maturity, as of the payment date of the principal being redeemed or paid. If
no maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate
shall be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"Restricted Security" means any Security that is subject to the
transfer restrictions set forth in Section 2.9(a).
"Sale and Leaseback", with respect to a Person, means any transaction
with a bank, company, lender or investor providing for the leasing by such
Person of any property which has been or is to be sold or transferred by such
Person to such bank, company, lender or investor, or of any Person to whom funds
have been or are to be advanced by such bank, company, lender or investor on the
security of such property.
"Secured Indebtedness" means with respect to a Person all Debt which
is secured by any security interest, mortgage, charge, pledge, deed of trust, or
other similar lien on assets by the owner thereof and includes all Lease
Obligations. Transportation Equipment which is subject to a lease or contract
which is included as a Lease Obligation is deemed to secure the Debt evidenced
thereby.
"Securities" means, collectively, the Original Securities and the
Exchange Securities.
"Security Register" means the list of holders provided to the Trustee
pursuant to Section 2.15 or any security register maintained by the Registrar.
"Significant Subsidiary" means any Subsidiary of the Company that
would be a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X
under the Securities Act, as such Rule is in effect on the date of this
Indenture.
"Standard & Poor's" means Standard & Poor's Rating Group (a division
of McGraw Hill, Inc.) or any successor rating agency.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which established yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
"Subordinated Indebtedness" means Debt of the Company which is
expressly subordinated and subject in right of payment to the prior payment, in
bankruptcy or in the event of a payment default on the Securities, in full in
money or money's worth in accordance with their terms, of all principal of,
premium, if any, and interest on the Securities.
"Subsidiary" of a Person means (i) any corporation more than 50% of
the outstanding voting power of the Voting Stock of which is owned or
controlled, directly or indirectly, by such Person or by one or more other Sub-
sidiaries of such Person, or by such Person and one or more other Subsidiaries
thereof, or (ii) any limited partnership of which such Person or any Subsidiary
of such Person is a general partner, or (iii) any other Person (other than a
corporation or limited partnership) in which such Person, or one or more other
Subsidiaries of such Person, or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has more than 60% of the outstanding
partnership or similar interests or has the power, by contract or otherwise, to
direct or cause the direction of the policies, management and affairs thereof.
"Transportation Equipment" means domestic and marine containers,
trucks, tractors, trailers, chassis, cranes, portable ramps, lifting equipment,
railroad locomotives, railroad rolling stock, modular office units, mobile
office and storage trailers and all other transportation equipment, and includes
all accessories and attachments thereto.
"Trust Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"United States" means the United States of America.
"U.S. Government Obligations" means securities which are (a) direct
obligations of the United States, for the payment of which its full faith and
credit is pledged, or (b) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank or trust as custodian with respect to any such U.S. Government
Obligation or a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of the holder of a
depository receipt, PROVIDED that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of interest on or
principal of the U.S. Government Obligation evidenced by such depository
receipt.
"Voting Stock" of a Person means Capital Stock of such Person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such Person (irrespective of whether or not
at the time the stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
SECTION 1.2 OTHER DEFINITIONS.
TERM DEFINED IN SECTION
"Covenant Defeasance" 8.3
"Defeasance" 8.2
"Event of Default" 6.1
"Initial Lien" 4.12
"Lien" 4.12
"Paying Agent" 2.4
"Refinancing" 4.12
"Registrar" 2.4
"Required Filing Dates" 4.2
SECTION 1.3 INCORPORATION BY REFERENCE TO TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act of 1939 (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:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or
any other obligor on the indenture securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rules have
the meanings assigned to them therein.
SECTION 1.4 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 United States generally accepted accounting
principles in effect as of the time as to which such accounting principles are
to be applied;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and in the plural include the singular; and
(5) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise; and
(6) "including" or "included" means included but not limited
to.
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM GENERALLY.
The Original Securities and related Trustee's certificate of
authentication shall be substantially in the form of Exhibit A and the Exchange
Securities and related Trustee's certificate of authentication shall be
substantially in the form of Exhibit B, the terms of each of which are
incorporated in and made a part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule, agree-
ments to which the Company is subject or usage. Each Security shall be dated the
date of its authentication. The Securities shall be issued in denominations of
$1,000 and integral multiples thereof. Notwithstanding the foregoing, Definitive
Securities issued to any "institutional accredited investor" within the meaning
of Rule 502 (A) (1), (2), (3) or (7) under the Securities Act shall be issued
only in minimum denominations of $100,000 and any amount in excess thereof that
is an integral multiple of $1,000.
SECTION 2.2 EXECUTION AND AUTHENTICATION.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature in the manner set forth in Exhibits A and B. The Company's
seal shall be impressed, affixed, imprinted or reproduced on the Securities and
may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Trustee. The signature of the Trustee
shall be conclusive evidence that the Security has been authenticated under this
Indenture. The form of Trustee's certificate of authentication to be borne by
the Securities shall be substantially as set forth in Exhibits A and B hereto.
The Trustee shall, upon a Company Order, authenticate for original
issue up to, and the aggregate principal amount of Securities outstanding at any
time may not exceed the sum of, $75,000,000 principal amount of the Securities,
except as provided in Sections 2.9, 2.10 and 2.12. The series of Securities to
be initially issued hereunder shall be the Original Securities.
The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate.
SECTION 2.3 FORM AND PAYMENT.
Except as provided in Section 2.7, the Securities shall be issued in
fully registered certificated form without interest coupons. Principal of and
interest on the Securities issued in certificated form will be payable, the
transfer of such Securities will be registrable and such Securities will be
exchangeable for Securities bearing identical terms and provisions at the office
or agency of the Company maintained for such purpose under Section 2.4;
PROVIDED, HOWEVER, that payment of interest with respect to the Securities may
be made at the option of the Company (i) by check mailed to the holder at such
address as shall appear in the Security Register or (ii) by transfer to an
account maintained by the Person entitled thereto, provided that proper transfer
instructions have been received in writing by the relevant record date.
SECTION 2.4 REGISTRAR AND AGENTS.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for payment ("Paying Agent") and an
office or agency where notices and demands to or upon the Company 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 may
have one or more co-registrars and one or more additional Paying Agents. The
Company or any Subsidiary thereof may act as Paying Agent. The term "Registrar"
includes any co-Registrar and the term "Paying Agent" includes any additional
paying agent.
Any Paying Agent or Registrar may resign as Paying Agent or Registrar
upon thirty (30) days' prior written notice to the Company and the Trustee. The
Company may change any Paying Agent or Registrar on sixty (60) days' prior
written notice to the Trustee. The Company shall notify the Trustee in writing
of the name and address of any such Agent. If the Company fails to maintain a
Registrar, Paying Agent, or agent for service of notices and demands, or fails
to give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee as Registrar, Paying Agent
and agent for service of notices and demands.
SECTION 2.5 PAYING AGENT TO HOLD MONEY IN TRUST.
Prior to each due date of the principal of, premium if any, and
interest on the Securities, the Company shall deposit with each Paying Agent a
sum sufficient to pay such principal, premium, if any, and interest so becoming
due. The Company shall require each Paying Agent other than the Trustee to agree
in writing that it will hold in trust for the benefit of Holder of Securities or
the Trustee all money held by the Paying Agent for the payment of principal of,
premium if any, or interest on the Securities and to notify the Trustee
immediately in writing of any default by the Company (or any other obligor on
the Securities) in making any such payment. If the Company or a Subsidiary
thereof acts as Paying Agent, it shall on or before each due date of the
principal of, premium, if any, or interest on any Securities segregate the money
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and 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 forthwith pay to the Trustee all
sums so held in trust by such Paying Agent and account for any funds disbursed.
Upon doing so, the Paying Agent (other than the Company or a Subsidiary thereof)
shall have no further liability for the money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall,
subject to the requirements of applicable law, be paid to the Company upon its
request; and the Holder of such Security shall thereafter look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease.
SECTION 2.6 LEGENDS.
(a) Except as permitted by subsection (b) of this Section 2.6 or as
otherwise determined by the Company in accordance with applicable law, each
Security shall bear the applicable legends relating to restrictions on transfer
pursuant to the securities laws in substantially the form set forth in Section
2.9(g)(1).
(b) The Company shall issue and the Trustee shall authenticate
Exchange Securities in exchange for Original Securities accepted for exchange in
the Exchange Offer, which Exchange Securities shall not bear the legends
required by subsection (a) above. Pursuant to the terms of the Exchange Offer as
set forth in the Registration Rights Agreement, certain Persons are not eligible
to tender their Original Securities in the Exchange Offer. Accordingly, a holder
of Original Securities who is either (A) a broker-dealer who purchased such
Original Securities directly from the Company for resale pursuant to Rule 144A
or any other available exemption under the Securities Act, (B) a Person
participating in the distribution of the Original Securities or (C) a Person who
is an affiliate (as defined in Rule 144 under the Securities Act) of the Company
shall, pursuant to the terms of the Registration Rights Agreement, only receive
Exchange Securities other than in connection with the Exchange Offer, which
Exchange Securities, notwithstanding anything else herein to the contrary, shall
bear the legends required by subsection (a) above and shall not be represented
by a Global Security.
SECTION 2.7 GLOBAL SECURITY.
(a) The Global Securities shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon; PROVIDED, that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed, repurchased or
cancelled, such Global Security shall be returned to or retained and cancelled
by the Trustee. Any endorsement of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Trustee, in accordance with instructions given by
the Company as required by this Section 2.7.
(b) The Global Securities may be transferred, in whole but not in
part, only to the Depositary, another nominee of the Depositary, or to a
successor Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
(c) If at any time the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary or the Depositary has ceased to be
a clearing agency registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, the Company will
execute, and the Trustee, upon receipt of a Company Order, will authenticate and
make available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. If there is
an Event of Default, the Depositary shall have the right to exchange the Global
Securities for Definitive Securities. In addition, the Company may at any time
determine that the Securities shall no longer be represented by a Global
Security. In the event of such an Event of Default or such a determination, the
Company shall execute, and subject to Section 2.9, the Trustee, upon receipt of
an Officers' Certificate evidencing such determination by the Company, will
authenticate and make available for delivery the Definitive Securities, in
authorized denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security, in exchange for such Global Security.
Upon the exchange of the Global Security for such Definitive Securities, in
authorized denominations, the Global Security shall be cancelled by the Trustee.
Such Definitive Securities issued in exchange for the Global Security 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 Trustee. The Trustee shall deliver such Definitive Securities
to the Depositary for delivery to the Persons in whose names such Definitive
Securities are so registered.
SECTION 2.8 INTEREST.
(a) Each Security will bear interest at the rate of 7.20% per annum
PROVIDED, HOWEVER, that if a Ratings Decision (of which the Trustee has been
given notice by the Company) shall not have occurred by the 90th day after the
Issue Date, the rate per annum for regular interest payments on the Securities
and on overdue principal and overdue installments of interest, each as set forth
above, shall automatically and irrevocably increase to 7.45% per annum effective
retroactively from the Issue Date. Each Security will bear interest from the
most recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Issue Date, until the
principal thereof becomes due and payable, and at the rate provided in the first
sentence of this Section 2.8 on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest, compounded semi-annually, payable semi-annually in
arrears on February 1 and August 1 of each year (each, an "Interest Payment
Date") commencing on February 1, 1998 to the Person in whose name such Security
or any Predecessor Security is registered, at the close of business on the
preceding January 15 or July 15, respectively, regardless of whether such day is
a Business Day.
(b) Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period of less than a full
calendar month, the number of days lapsed in such month. In the event that any
Interest Payment Date falls on a day that is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), with the same force and effect as if made on such date.
(c) The Company will not be responsible for, and will not be required
to compensate holders of or investors in the Securities for, any withholding
taxes that are imposed on interest payments on the Securities.
SECTION 2.9 TRANSFER AND EXCHANGE.
(a) TRANSFER RESTRICTIONS. The Original Securities, and those Exchange
Securities with respect to which any Person described in Section 2.6(b)(A), (B)
or (C) is the beneficial owner, may not be transferred except in compliance with
the legend contained in Exhibit A unless otherwise determined by the Company in
accordance with applicable law.
(b) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES. When a
Security is presented to the Registrar with a request to register the transfer,
the Registrar shall register the transfer as requested and when Securities are
presented to the Registrar with a request to exchange them for a like aggregate
principal amount of Securities in other authorized denominations, the Registrar
shall make the exchange as requested, provided that every Security presented or
surrendered for registration or transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer into a form satisfactory to
the Company and the Registrar duly executed by the Holder thereof or his
attorney-in-fact duly authorized in writing. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee or any
authenticating agent shall authenticate Securities at the Registrar's written
request. No service charge shall be made for any registration of transfer or
exchange of Securities but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto, but this provision shall not apply to any exchange pursuant to Section
2.12, 3.6 or 10.5 not involving any transfer.
All Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or Global
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Definitive
Securities or Global Securities surrendered upon such registration of transfer
or exchange.
Prior to due presentment for registration or transfer of any Security,
the Trustee and the Company may deem and treat the Person in whose name the
Security is registered as the absolute owner of such Security, and neither the
Trustee nor the Company shall be affected by notice to the contrary.
The Registrar shall not be required (i) to issue, register the
transfer of, or exchange Securities during a period beginning at the opening of
business 15 days before the day of any selection of Securities for redemption
under Section 3.2 and ending at the close of business on the day of selection,
(ii) to register the transfer or exchange of any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part, or (iii) to issue, register the transfer of, or exchange
Securities during the period between a record date and the next succeeding
Interest Payment Date.
(c) TRANSFER AND EXCHANGE OF DEFINITIVE SECURITIES. When Definitive
Securities are presented to the Registrar with a request:
(y) to register the transfer of such Definitive Securities; or
(z) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; PROVIDED, HOWEVER,
that the Definitive Securities surrendered for registration of transfer or
exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Company and the
Registrar duly executed by the Securityholder or such Holder's attorney duly
authorized in writing; and
(2) in the case of Definitive Securities that are Restricted
Securities, such request shall be accompanied by the following additional
information and documents, as applicable:
(A) if such Restricted Securities are being
delivered to the Registrar by a Securityholder for
registration in the name of such Securityholder, without
transfer, a certification from such Securityholder to that
effect (in substantially the form set forth on the reverse of
the Security); or
(B) if such Restricted Security is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A) in accordance with Rule 144A a certification to
that effect (in substantially the form set forth on the
reverse of the Security); or
(C) if such Restricted Security is being
transferred (i) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act or (ii) pursuant to an effective registration statement
under the Securities Act, or (iii) in a minimum principal
amount of $100,000 to an "institutional accredited investor"
within the meaning of Rule 501(A)(1), (2), (3) or (7) under
the Securities Act that is acquiring the security for its own
account, or for the account of such an institutional
accredited investor, not with a view to or for offer or sale
in connection with any distribution in violation of the
Securities Act, or (iv) in reliance on another exemption from
the registration requirements of the Securities Act, a
certification to that effect (in substantially the form set
forth on the reverse of the Security) and in the case of (i),
(iii) and (iv) above, if the Company or the Registrar so
request, a customary opinion of counsel reasonably acceptable
to the Company and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(d) RESTRICTIONS ON TRANSFER OF A DEFINITIVE SECURITY FOR A BENEFICIAL
INTEREST IN A GLOBAL SECURITY.
A Definitive Security 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 Definitive Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Registrar, together with:
(1) if such Definitive Security is a Restricted Security,
certification, substantially in the form set forth on the reverse of the
Security, that such Definitive Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A) in accordance with
Rule 144A; and
(2) whether or not such Definitive Security is a
Restricted Security, written instructions of the Securityholder
directing the Registrar to make, or to direct the Trustee to make, an
endorsement on the Global Security to reflect an increase in the aggregate
principal amount of the Securities represented by the Global Security,
then the Registrar shall cancel such Definitive Security and cause, or direct
the Trustee to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Trustee, the aggregate
principal amount of Securities represented by the Global Security to be
increased accordingly. If no Global Securities are then outstanding, the Company
shall issue and the Trustee shall authenticate a new Global Security in the
appropriate principal amount.
(e) 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 applicable restrictions on transfer set forth herein,
if any) and the procedures of the Depositary therefor which shall include
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act.
(f) TRANSFER OF A BENEFICIAL INTEREST IN A GLOBAL SECURITY FOR
A DEFINITIVE SECURITY.
(1) Any Person having a beneficial interest in a Global
Security may upon request exchange such beneficial interest for a
Definitive 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 having a beneficial interest
in a Global Security and upon receipt by the Registrar 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 in a
Restricted Security only, the following additional information and documents
(all of which may be submitted by facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification from such person
to that effect (in substantially the form set forth on the
reverse of the Security); or
(B) if such beneficial interest is being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A) in accordance with Rule 144A a certification to
that effect from the transferor (in substantially the form set
forth on the reverse of the Security); or
(C) if such beneficial interest is being
transferred (i) pursuant to an exemption from registration in
accordance with Rule 144 or Regulation S under the Securities
Act or (ii) pursuant to an effective registration statement
under the Securities Act, or (iii) in a minimum principal
amount of $100,000 to an "institutional accredited investor"
within the meaning of Rule 501(A)(1), (2), (3) or (7) under
the Securities Act that is acquiring the security for its own
account, or for the account of such an institutional
accredited investor, not with any distribution in violation of
the Securities Act, or (iv) in reliance on another exemption
from the registration requirements of the Securities Act, a
certification to that effect from the transferee or transferor
(in substantially the form set forth on the reverse of the
Security) and in the case of (i), (iii) and (iv) above, if the
Company or the Registrar so requests, a customary opinion of
counsel from the transferee or transferor reasonably
acceptable to the Company and to the Registrar to the effect
that such transfer is in compliance with the Securities Act;
then the Registrar, or the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depositary and the Trustee, the
aggregate principal amount of the 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, the Trustee or the Trustee's
authenticating agent will authenticate and deliver to the transferee a
Definitive Security.
(2) Definitive Securities issued in
exchange for a beneficial interest in a Global Security pursuant to this Section
2.9(f) 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. The Registrar shall
deliver such Definitive Securities to the persons in whose names such Securities
are so registered.
(g) LEGENDS.
(1) Except as permitted by the following
paragraph (2), each Security certificate evidencing the Global Securities and
the Definitive Securities (and all securities issued in exchange therefor or
substitution thereof, but not including Exchange Securities as defined herein)
shall bear legends in substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE
"RESALE RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE
LATER OF THE ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH
THE COMPANY OR ANY "AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE COMPANY,
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT, (E) IN A MINIMUM PRINCIPAL AMOUNT OF $100,000
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES
ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO
CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY, AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE
TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM DATED
JULY 31, 1997. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
(2) Upon any sale or transfer of a Restr-
icted Security (including any Restricted Security represented by a Global
Security) pursuant to Rule 144 under the Securities Act or an effective
registration statement under the Securities Act:
(A) in the case of any Restricted Security
that is a Definitive Security, the Registrar shall permit the
Securityholder to exchange such Restricted Security for a
Definitive Security that does not bear the legend set forth
above and rescind any restriction on the transfer of such
Restricted Security in the case of a sale or transfer pursuant
to Rule 144 under the Securities Act, after the Resale
Restriction Termination Date (as defined in clause (g)(1)
above) or delivery of a customary opinion of counsel
reasonably satisfactory to the Registrar; and
(B) any such Restricted Security represented
by a Global Security shall not be subject to the provisions
set forth in (1) above (such sales or transfers being subject
only to the provisions of Section 2.9(e) hereof); PROVIDED,
HOWEVER, that with respect to any request for an exchange of a
Restricted Security that is represented by a Global Security
for a Definitive Security that does not bear a legend, which
request is made in reliance upon Rule 144 under the Securities
Act, the Securityholder shall certify in writing to the
Registrar (to be accompanied by a customary opinion of counsel
reasonably satisfactory to the Registrar) that such request is
being made pursuant to Rule 144 under the Securities Act (such
certification to be substantially in the form set forth on the
reverse of the Security).
(h) EXCHANGE OF ORIGINAL SECURITIES FOR EXCHANGE SECURITIES.
The Original Securities may be exchanged for Exchange
Securities pursuant to the terms of the Exchange Offer and in accordance with
the provisions set forth in this Section 2.9, as may be applicable. The Trustee
shall make the exchange as follows:
The Company shall present the Trustee with an Officers'
Certificate certifying the following:
(A) upon issuance of the Exchange Securi-
ties, the transactions contemplated by the Exchange
Offer have been consummated; and
(B) the principal amount of Original
Securities properly tendered in the Exchange Offer that are represented by a
Global Security and the principal amount of Original Securities properly
tendered in the Exchange Offer that are represented by Definitive Securities,
the name of each holder of such Definitive Securities, the principal amount
properly tendered in the Exchange Offer by each such holder and the name and
address to which Definitive Securities representing Exchange Securities shall be
registered and sent for each such holder.
The Trustee, upon receipt of (i) such Officers' Certificate, (ii) an
Opinion of Counsel (x) to the effect that the Exchange Securities have been
registered under Section 5 of the Securities Act and the Indenture has been
qualified under the Trust Indenture Act and (y) with respect to the matters set
forth in Section 3(p) of the Registration Rights Agreement and (iii) a Company
Order, shall authenticate (A) a Global Security representing Exchange Securities
in an aggregate principal amount equal to the aggregate principal amount of
Original Securities represented by a Global Security indicated in such Officers'
Certificate as having been properly tendered and (B) Definitive Securities
representing Exchange Securities registered in the names of, and in the princi-
pal amounts indicated in, such Officers' Certificate.
If the principal amount of the Global Security representing Exchange
Securities is less than the principal amount of the Global Security representing
Original Securities, the Trustee shall make an endorsement on such Global
Security representing Original Securities indicating a reduction in the
principal amount represented thereby.
The Trustee shall deliver such Definitive Securities representing
Exchange Securities to the holders thereof as indicated in such Officers'
Certificate.
SECTION 2.10 REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security presents evidence to the satisfaction of the Company and the
Trustee that the Security has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security if
the requirements of the Trustee and the Company are met. An indemnity bond may
be required by the Company or the Trustee that is sufficient in the judgment of
the Company to protect the Company and is sufficient in the judgment of the
Trustee to protect the Trustee or any Agent from any loss which it may suffer if
a Security is replaced. The Company and the Trustee may each charge for its
expenses in replacing a Security.
Every replacement Security is an obligation of the Company and shall
be entitled to all of the benefits of this Indenture equally and proportionately
with all other Securities duly issued hereunder.
SECTION 2.11 OUTSTANDING SECURITIES.
Securities outstanding at any time are all Securities authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation and those described in this Section 2.11 as not outstanding.
If a Security is replaced pursuant to Section 2.10, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company or any of its
Subsidiaries) holds on a Redemption Date or maturity date money deposited with
it by or on behalf of the Company sufficient to pay the principal of and accrued
interest on the Securities payable on that date, then on and after that date
such Securities cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security; PROVIDED, HOWEVER, in determining whether the
holders of the requisite aggregate principal amount of Securities have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Company or any other obligor on the Securities or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Securities shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; PROVIDED, THAT for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver,
only Securities which the Trustee actually knows are so owned shall be so
disregarded.
SECTION 2.12 TEMPORARY SECURITIES.
Until Definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of Definitive Securities but may
have non-material variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee shall authenticate Definitive Securities in exchange for temporary
Securities upon written order of the Company signed by two Officers. Until so
exchanged, temporary Securities represent the same rights as Definitive
Securities. Upon request of the Trustee, the Company shall provide a certificate
to the effect that the temporary Securities meet the requirement of the second
sentence of this Section 2.12.
SECTION 2.13 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 shall cancel all Securities surrendered for transfer, exchange or
payment and destroy cancelled Securities in accordance with its customary
destruction procedures and deliver a certificate of such destruction to the
Company unless the company directs the Trustee in writing prior to such
destruction to deliver cancelled Securities to the Company. Subject to Sections
2.10 and 3.6, the company may not issue Securities to replace Securities that it
has previously paid or delivered to the Trustee for cancellation.
SECTION 2.14 DEFAULTED INTEREST.
If the Company defaults in a payment of interest on Securities, it
shall pay the defaulted interest to the Persons who are Holders of the
Securities on a subsequent special record date. After the deposit by the
Company with the Trustee of money sufficient to pay such defaulted interest, the
Trustee shall fix the record date and payment date. Each such special record
date shall be not less than 10 days prior to such payment date. Each such
payment date shall be not more than 60 days after the deposit by the Company of
money to pay the defaulted interest. At least 15 days before the special record
date, the Company shall mail to each Holder of a Security a notice that states
the special record date, the payment date, and the amount of defaulted interest
to be paid. The Company may pay defaulted interest in any other lawful manner
if, after prior notice to the Trustee, such payment shall be deemed
operationally practicable by the Trustee.
SECTION 2.15 SECURITYHOLDER 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 of Securities. If the Trustee is not the Registrar, the Company or other
obligor, if any, shall furnish to the Trustee at least seven Business Days prior
to each semi-annual interest payment date and at such other times as the Trustee
may request in writing a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of Securities upon
which the Trustee may conclusively rely. The Trustee may destroy any such list
upon receipt of a replacement list. The Paying Agent will solicit from each
Securityholder a certification of social security number or taxpayer
identification number in accordance with its customary practice and as required
by law, unless the Paying Agent is in possession of such certification. Each
Paying Agent is authorized to impose back-up withholding with respect to
payments to be made to Securityholders to the extent required by law.
SECTION 2.16 PERSONS DEEMED OWNERS.
Prior to presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 2.17 CUSIP NUMBER.
The Company may use a "CUSIP" number when issuing Securities, and if
so, the Trustee may use the CUSIP number in notices of redemption or exchange as
a convenience to Holders of Securities; 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.
ARTICLE 3
REDEMPTION
SECTION 3.1 RIGHT OF REDEMPTION.
The Company may redeem the Securities, at any time, in whole or from
time to time in part, at the election of the Company, at a Redemption Price
equal to the sum of (i) the principal amount of the Securities being redeemed
plus accrued interest thereon to the Redemption Date and (ii) the Make-Whole
Amount, if any, with respect to such Securities. The election of the Company to
redeem any Securities pursuant to this Section shall be evidenced by a Board
Resolution. The Company shall, at least 45 but not more than 90 days prior to
the Redemption Date fixed by the Company (or such other period as the Company
and the Trustee may agree), notify the Trustee of such Redemption Date (such
notification to include the Company's calculation of the Make-Whole Amount,
which calculation the Trustee is authorized to rely on for purposes of the
Indenture) and, in the case of any redemption at the election of the Company of
less than all the Securities, of the principal amount of Securities to be
redeemed. The notice shall be in writing and accompanied by an Officers'
Certificate stating that the redemption complies with the provisions of this
Indenture and the provisions of the applicable Board Resolution, if any.
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed pro rata or by lot or by any other
method that the Trustee considers fair and appropriate under the circumstances
or otherwise required by any exchange upon which the Securities are listed. The
Trustee shall promptly notify the Company of the Securities to be so called for
redemption. The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities that have denominations larger than
$1,000 principal amount. Securities and portions of Securities selected by the
Trustee shall be in principal amounts of $1,000 or multiples thereof. Provisions
of this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee's selection of
Securities for redemption by any method authorized by this Section 3.2 shall be
conclusively deemed reasonable.
SECTION 3.3 NOTICE OF REDEMPTION BY THE COMPANY.
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
of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price;
(5) that interest on Securities called for redemption
ceases to accrue on and after the Redemption Date;
(6) 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 Secu-
rities in principal amount equal to the
unredeemed portion thereof will be issued;
(7) the CUSIP number, if any.
Upon its receipt of a Company Order, the Trustee shall give the notice
of redemption in the Company's name and at the Company's expense. If a CUSIP
number is listed in such notice or printed on the Security, the notice shall
state that no representation is made as to the correctness or accuracy of such
CUSIP number.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION.
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the applicable Redemption Date and at the applicable
Redemption Price and shall cease to bear interest from and after the Redemption
Date (unless the Company shall default in payment of the Redemption Price or
accrued interest). Upon surrender to the Paying Agent, such Securities shall be
paid at the Redemption Price, plus accrued interest to the Redemption Date.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE.
On or before 10 a.m. on the Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary thereof is the Paying
Agent, shall segregate and hold in trust or cause such Subsidiary to segregate
and hold in trust) in immediately available funds money sufficient to pay the
Redemption Price of and accrued interest on all Securities to be redeemed on
that date.
SECTION 3.6 SECURITIES REDEEMED IN PART.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder, at the expense of the Company, a new Security
equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF THE SECURITIES.
The Company shall duly and punctually pay the principal of, premium if
any, and interest on the Securities on the dates and in the manner provided in
the Securities and this Indenture. An installment of principal, premium, if any,
or interest shall be considered paid on the date it is due if the Trustee or
Paying Agent (other than the Company or any of its Subsidiaries) holds on that
date money designated for and sufficient to pay the installment. The Company
shall pay interest on overdue principal and premium, if any, at the rate borne
by the Security; it shall pay interest, including post-petition interest in the
event of a proceeding under the Bankruptcy Laws, on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.2 COMMISSION REPORTS.
Whether or not the Company is then subject to Section 13(a) or 15(d)
of the Exchange Act, the Company will file with the Commission (unless such
filing is not permitted under the Exchange Act), so long as the Securities are
outstanding, the annual reports, quarterly reports and other periodic reports
(including financial statements and reports) which the Company would have been
required to file with the Commission pursuant to such Section 13(a) or 15(d) if
the Company were so subject, and such documents shall be filed with the
Commission on or prior to the respective dates (the "Required Filing Dates") by
which the Company would have been required so to file such documents if the
Company were so subject. The Company will also in any event (i) within 15 days
of each Required Filing Date, (a) transmit or cause to be transmitted by mail to
all Holders of Securities, as their names and addresses appear in the Security
Register, without cost to such Holders, and (b) file with the Trustee copies of
the annual reports, quarterly reports and other periodic reports which the
Company would have been required to file with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act if the Company were subject to such Sections
and (ii) if filing such documents by the Company with the Commission is
prohibited under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder at the Company's cost. The Company also shall comply
with the provisions of TIA ss. 314(a).
SECTION 4.3 WAIVER OF STAY, EXTENSION OR USURY LAWS.
The Company expressly waives (to the extent that it may lawfully do
so) any stay or extension law or any usury law or other law that would prohibit
or forgive the Company from paying all or any portion of the principal of
(premium, if any) or interest on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or that may affect the covenants
or the performance of this Indenture.
SECTION 4.4 NOTICE OF DEFAULT.
The Company will, so long as any Securities are outstanding, deliver
to the Trustee, within 10 days of becoming aware of any Default or Event of
Default in the performance of any covenant, agreement or condition in this
Indenture, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
SECTION 4.5 COMPLIANCE CERTIFICATES.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company (which as of the date hereof is December 31),
a written statement signed by the President or a Vice President and by the
Treasurer, an Assistant Treasurer, the Controller or an Assistant Controller of
the Company, stating, as to each signer thereof, that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under such signer's
supervision and
(2) to the best of such signer's knowledge, based on such
review, the Company has kept, observed, performed and fulfilled in all material
respects each and every condition and covenant contained in this Indenture
throughout such year, or, if there has been a default in the fulfillment of any
such condition or covenant, specifying each such default known to such signer
and the nature and status thereof and what action the Company is taking or
proposes to take with respect thereto.
The Company will give the Trustee written notice of a change in the
fiscal year of the Company, within a reasonable time after such change is
effected.
SECTION 4.6 LIMITATION ON DIVIDENDS AND OTHER DISTRIBUTIONS.
The Company will not declare or pay any dividends or make any
distribution to holders of its Capital Stock (other than dividends or
distributions payable in Capital Stock of the Company), or purchase, redeem or
otherwise acquire or retire for value any of its Capital Stock or permit any
Subsidiary to purchase, redeem or otherwise acquire or retire for value any of
the Company's Capital Stock if at the time of any of the aforementioned actions
an Event of Default has occurred and is continuing or would exist immediately
after giving effect to such action.
Notwithstanding the foregoing, the provisions of this Section 4.6 will
not prevent the payment of any dividend within 60 days after the date of
declaration when the payment would have complied with the foregoing provisions
on the date of declaration.
SECTION 4.7 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities, if any, and
this Indenture may be served. The office of the Trustee shall be such office or
agency of the Company, unless the Company shall designate and maintain some
other office or agency for one or more of such purposes. The Company will give
prompt written notice to the Trustee of any change in the location of any such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of The City of New York) where the Securities
may be presented or surrendered for any or all such purposes, and may from time
to time rescind such designation; PROVIDED, HOWEVER, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in the Borough of Manhattan in The City of New York for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and any change in the location of any such other
office or agency.
SECTION 4.8 EXISTENCE.
Subject to Article Five, the Company will do or cause to be done all
things necessary to, and will cause each of its Significant Subsidiaries to,
preserve and keep in full force and effect its corporate existence and the
corporate existence of each of the Significant Subsidiaries, and the rights
(charter and statutory), licenses and franchises of the Company and each of the
Significant Subsidiaries, as applicable, PROVIDED, HOWEVER, that the Company
shall not be required to, or cause any such Significant Subsidiary to, preserve
or keep in force or effect any such right, license or franchise, or any such
Significant Subsidiary's corporate existence, if its Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries as a whole and that the loss
thereof would not materially adversely affect the Company's ability to perform
its obligations under the Indenture and the Securities.
SECTION 4.9 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 and a penalty accrues from such
delinquency, (a) all material taxes, assessments and governmental charges levied
or imposed (i) upon the Company or any of its Subsidiaries or (ii) upon the
income, profits or property of the Company or any of its Subsidiaries and (b)
all material lawful claims for labor, materials and supplies, which, if unpaid,
would by law become a Lien (as defined herein) upon the property of the Company
or any of its Subsidiaries (other than any Lien permitted by this Indenture);
PROVIDED, HOWEVER, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings properly instituted and diligently conducted, or where
the failure to effect such payment or discharge would not materially adversely
affect the Company's ability to perform its obligations under the Indenture and
the Securities.
SECTION 4.10 MAINTENANCE OF PROPERTIES.
The Company shall, and shall cause each of its Significant
Subsidiaries to, cause all material properties owned by the Company or the
Significant Subsidiaries or used in the conduct of its business or the
businesses of the Significant Subsidiaries to be maintained and kept in good
condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment, and cause to be made all repairs,
renewals, replacements, betterments and improvements thereof, all as shall be
reasonably necessary so that the business carried on in connection therewith may
be conducted at all times in the ordinary course; PROVIDED, HOWEVER, that
nothing in this Section 4.10 shall prevent the Company or any of its
Subsidiaries from discontinuing the operation and maintenance of any of such
properties if (x) such discontinuance is, in the judgement of the Company or the
Subsidiary, desirable in the conduct of its businesses or (y) if such
discontinuance or disposal is not materially adverse to the Company and its
Subsidiaries taken as a whole or the ability of the Company to otherwise satisfy
its obligations hereunder.
SECTION 4.11 INSURANCE.
The Company will at all times keep all of its and its Subsidiaries'
properties which are of an insurable nature insured with insurers, believed by
the Company in good faith to be financially sound and responsible, against loss
or damage to the extent that property of similar character is usually so insured
by corporations similarly situated and owning like properties (which may include
self-insurance, if reasonable and in comparable form to that maintained by
companies similarly situated).
SECTION 4.12 LIMITATION ON LIENS.
The Company will not, directly or indirectly, create, incur or assume
any mortgage, pledge, deed of trust, financing lease or security interest
("Liens") on any of its properties whether now or hereafter acquired, or any
income or profits therefrom, or assign or convey any right to receive income
therefrom (any such Lien, an "Initial Lien"), unless prior to or simultaneously
with the inception of such Initial Lien, the Company shall have delivered to the
Trustee a security agreement or security agreements and such other documents as
the Trustee may reasonably request, each in form and substance satisfactory to
the Trustee, granting to the Trustee an equal and ratable security interest in
such property subject to such Initial Lien, such security interest to be for the
equal and ratable benefit of the Holders. Any such security interest created in
favor of the Securities will be automatically and unconditionally released and
discharged upon the release and discharge of the Initial Lien to which it
relates. Notwithstanding the foregoing, the restrictions set forth in this
paragraph shall not apply if at the time of, and immediately after giving PRO
FORMA effect to, the transaction giving rise to such Initial Lien, the
Consolidated Indebtedness-to-Stockholders' Equity Ratio does not exceed 4.0 to
1.0.
The foregoing restrictions shall not apply to:
(i) Liens securing obligations outstanding from time to time
under any revolving credit agreement to which the Company is a party;
(ii) Liens on assets existing at the time of acquisition
thereof by the Company, PROVIDED that such Liens were in existence prior to such
acquisition and were not created in contemplation of such acquisition;
(iii) Liens on assets of another Person existing at the time
such Person is merged into or consolidated with the Company, PROVIDED that such
Liens were in existence prior to such merger or consolidation and were not
created in contemplation of such merger or consolidation and do not extend to
any assets of the Company other than those previously owned by the Person merged
into or consolidated with the Company;
(iv) Liens securing Purchase Money Indebtedness, but only on
assets in respect to the purchase of which such Purchase Money Indebtedness
shall have been incurred;
(v) Liens on real property;
(vi) Liens in favor of any Subsidiary of the Company;
(vii) Liens incurred or deposits made in the ordinary course
of business (w) in connection with workers' compensation, unemployment
insurance, social security or other like laws, (x) to secure the performance of
letters of credit, bids, tenders, trade contracts (other than for borrowed
money), sales contracts, leases, statutory obligations, surety, appeal and
performance bonds and other similar obligations, (y) in connection with the
opening of commercial letters of credit naming the Company or any of its
Subsidiaries as an account party, or (z) for the benefit of any governmental
agency or body created or approved by law or governmental regulation as a
condition to the transaction of business or the exercise of any privilege,
franchise or license;
(viii) Liens securing Lease Obligations; PROVIDED, HOWEVER,
that no such Lease Obligations shall arise out of the Sale and Leaseback of
Transportation Equipment unless the Sale and Leaseback in question is entered
into prior to, at the time of or within 180 days of the acquisition of the
Transportation Equipment being sold and leased back; and PROVIDED, FURTHER, that
the leasing of Transportation Equipment which has been remanufactured so that it
is the substantial equivalent of new equipment shall be considered the leasing
of new equipment and not of the used equipment which was remanufactured and
subsequently sold and leased back;
(ix) Liens for taxes, assessments or governmental charges or
claims that are not yet delinquent or that are being contested in good faith by
appropriate proceedings, PROVIDED that any reserve or other appropriate
provision as shall be required in conformity with generally accepted accounting
principles shall have been made therefor;
(x) Liens imposed by law, including but not limited to
carriers', seamen's, stevedores', wharfinger's, warehousemen's, mechanics',
suppliers', materialmen's, repairman's or other like Liens, in each case for
sums not yet due or being contested in good faith by appropriate proceedings, or
other Liens arising out of judgments or awards against the Company or any of its
Subsidiaries with respect to which the Company or such Subsidiary shall then be
proceeding with an appeal or other proceeding for review;
(xi) Leases, lease agreements and other contracts entered into
in the ordinary course of business providing for the leasing, sale or exchange
of Transportation Equipment owned by the Company;
(xii) Liens securing hedging obligations;
(xiii) Liens (x) existing on the date of the Indenture and (y)
to secure any renewal, extension, substitution, refunding, defeasance,
refinancing, repayment or replacement (a "Refinancing") (or successive
Refinancings), in whole or in part, of any Indebtedness (or commitment for
Indebtedness) existing on the date of this Indenture, PROVIDED, however, that
the Indebtedness secured by such Lien is not, solely by virtue of such
Refinancing, increased to an amount greater than the greater of (A) the
outstanding principal amount of such Indebtedness existing on the date of the
Indenture that is secured by such Lien or (B) if such Lien secures Indebtedness
under a line of credit, the commitment amount of such line of credit existing on
the date of this Indenture; and
(xiv) Liens incurred in the ordinary course of business of the
Company with respect to obligations that do not exceed $1.0 million at any one
time outstanding and that (x) are not incurred in connection with the borrowing
of money or the obtaining of advances or credit (other than trade credit in the
ordinary course of business) and (y) do not in the aggregate materially detract
from the value of the assets subject to such Lien or materially impair the use
thereof in the operation of business by the Company.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.1 WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge into, or transfer all
or substantially all of its assets to, another Person in any transaction in
which the Company is not the continuing or surviving entity unless (i) the
resulting, surviving or transferee Person is a corporation which expressly
assumes by supplemental indenture all the obligations of the Company under the
Securities and this Indenture; (ii) such corporation is organized and existing
under the laws of the United States, a State thereof or the District of
Columbia; (iii) immediately after giving effect to such transaction no Default
or Event of Default shall have happened and be continuing, and the Officers'
Certificate referred to in the following clause reflects that such Officers are
not aware of any such Default or Event of Default that shall have happened and
be continuing, and (iv) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply with
this Indenture.
SECTION 5.2 SUCCESSOR CORPORATION OR TRUST SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into which the Company
is merged or to which such transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor corporation has been named as the
Company herein, and thereafter all obligations of the Company shall terminate.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1 EVENTS OF DEFAULT.
An "Event of Default" occurs if, with respect to the Securities:
(1) the Company defaults in the payment of interest on the
Securities when the same becomes due and payable and the default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal of
(and premium, if any, on) the Securities when the same becomes due and payable
at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other
agreements in the Securities or this Indenture and the default continues for the
period and after the notice specified in the last paragraph of this Section 6.1;
(4) there shall be a default under any bond, debenture, note
or other evidence of Indebtedness or under any mortgage, indenture or other
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or any Significant Subsidiary, whether
any such Indebtedness now exists or shall hereafter be created, if (a) either
(i) such event of default results from the failure to pay any such Indebtedness
at maturity or (ii) as a result of such event of default, the maturity of such
Indebtedness has been accelerated prior to its expressed maturity, provided
that any such failure to pay shall not be cured and any such acceleration shall
not be rescinded or annulled or the accelerated amount paid within ten days
after notice to the Company of such failure to pay or acceleration, or such
Indebtedness having been discharged and (b) the principal amount of such
Indebtedness, together with the principal amount of any other such Indebtedness
in default for failure to pay principal or interest thereon, or the maturity of
which has been so accelerated, aggregates $10,000,000 or more;
(5) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order
for relief against it in an involuntary
case or proceeding,
(C) consents to the appointment of a
Custodian of it or for all or substantially
all of its property, or
(D) makes a general assignment for the
benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or
any Significant Subsidiary in an
involuntary case or proceeding,
(B) appoints a Custodian of the Company
or any Significant Subsidiary or for
all or substantially all of their
respective property, or
(C) orders the liquidation of the
Company or any Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days.
A default under clause (3) is not an Event of Default with respect to
the Securities until the Trustee notifies the Company, or the Holders of a
majority in principal amount of the Securities then outstanding notify the
Company and the Trustee in writing, of the default and the Company does not cure
the default within 60 days after receipt of such notice. The notice must specify
the default, demand that it be remedied and state that the notice is a "Notice
of Default." Such notice by the Trustee shall not be deemed to be a
certification by the Trustee as to whether an Event of Default has occurred.
Failure of the Trustee to give such notice does not constitute a waiver of any
of its rights hereunder.
SECTION 6.2 ACCELERATION.
If an Event of Default occurs and is continuing with respect to the
Securities, the Trustee by notice to the Company, or the Holders of a majority
in principal amount of the Securities then outstanding by written notice to the
Company and the Trustee, may declare to be due and payable immediately the
principal amount of the Securities plus accrued interest to the date of
acceleration. Upon any such declaration, such amount shall be due and payable
immediately, and upon payment of such amount all of the Company's obligations
with respect to the Securities, other than obligations under Section 7.7, shall
terminate. The Holders of a majority in principal amount of the outstanding
Securities by written notice to the Trustee may rescind an acceleration and its
consequences if (x) all existing Events of Default with respect to the
Securities, other than the non-payment of the principal of the Securities, which
have become due solely by such declaration of acceleration, have been cured or
waived, (y) to the extent that payment of such interest is lawful, interest on
overdue installments of interest and overdue principal which has become due
otherwise than by such declaration of acceleration, has been paid, and (z) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction. The Trustee may rely upon such notice of rescission
without any independent investigation as to the satisfaction of conditions (x),
(y) and (z).
SECTION 6.3 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 (and premium, if any) 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 Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.4 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT.
Subject to Section 10.2, the Holders of a majority in principal amount
of the Securities then outstanding, on behalf of the Holders of the Securities,
by written notice to the Trustee may waive a Default or Event of Default with
respect to the Securities and its consequences. When a Default is waived with
respect to the Securities it is cured and ceases to exist and any Event of
Default arising therefrom shall be deemed to have been cured for every purpose
of this Indenture.
SECTION 6.5 CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the Securities then
outstanding may direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on it with respect to the Securities. The Trustee, however, may
refuse to follow any direction (i) that conflicts with law or this Indenture,
(ii) that the Trustee, in its reasonable discretion, determines may be unduly
prejudicial to the rights of other Securityholders or that may involve the
Trustee in personal liability or (iii) for which the Trustee determines, in its
reasonable discretion, that it does not have adequate indemnification pursuant
to Section 7.1(e); PROVIDED, that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
SECTION 6.6 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provisions of this Indenture, the right of
any Holder of a Security to receive payment of principal of, premium, if any,
and interest on such Security, on or after the respective due dates expressed in
such Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
SECTION 6.7 COLLECTION SUIT BY TRUSTEE.
If an Event of Default with respect to the Securities in payment of
interest or principal (and premium, if any) specified in Section 6.1(1) or (2)
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 unpaid principal (and premium, if any) and
accrued interest remaining unpaid on the Securities, together with interest on
overdue principal (and premium, if any) and to the extent that payment of such
interest is lawful, interest on overdue installments of interest, in each case
at the rate 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 6.8 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 of Securities allowed in any judicial proceedings relative to the
Company (or any other obligor upon the Securities), its creditors or its
property and shall be entitled and empowered to collect and receive any monies
or other property payable or deliverable on any such claims and to distribute
the same. Any Custodian in any such judicial proceeding is hereby authorized by
each Securityholder 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
of Securities to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or 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 Securityholder in any such proceeding.
SECTION 6.9 PRIORITIES.
If the Trustee collects any money pursuant to this Article 6 with
respect to the Securities, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under
Section 7.7, including payment of all compensa-
tion, expenses and liabilities incurred, and
all advances made by the Trustee and the costs
and expenses of collection;
SECOND: to Holders of Securities for amounts
due and unpaid on the Securities for principal
of (and premium, if any) and interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on
the Securities for principal (and premium, if
any) and interest, respectively;
THIRD: to the Company or to such party as a
court of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any
payment to Holders of Securities pursuant to this Section 6.9.
SECTION 6.10 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
attorney's fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section 6.10 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to section 6.6 or a suit by Holders of more than 10% in principal
amount of the Securities then outstanding.
SECTION 6.11 LIMITATIONS ON SUITS.
Subject to Section 6.6, a Holder of Securities may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder has given the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount of
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expenses;
(4) the Trustee does not comply with the request within 60
days after receipt of the notice, request and offer of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a majority
in principal amount then outstanding.
A Holder of any Security may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a preference or
priority over another Securityholder.
SECTION 6.12 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE 7
TRUSTEE
SECTION 7.1 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 their exercise as a prudent Person
would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others,
and no implied covenants or obligation shall be read into this
Indenture against the Trustee.
(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.
The Trustee, however, shall examine the certificates and
opinions to determinate whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.1.
(2) The Trustee shall not be liable for any error in
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(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
6.5.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 7.1.
(e) Subject to subsection (c), the Trustee may refuse to
perform any duty or exercise any right or power unless, subject to the
provisions of the TIA, it receives indemnity satisfactory to it against any
loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 7.2 RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely on and shall be
protected in acting or refraining from acting upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both, which shall
conform to Section 11.5 hereof. 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.
(c) The Trustee may act through 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 which it believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel, and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by the Trustee hereunder in good faith and reliance thereon.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of the Securities or the Company unless such
Holders or the Company shall have offered to the Trustee reasonable security or
indemnify against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
SECTION 7.3 INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, is subject to Sections
7.10 and 7.11.
SECTION 7.4 TRUSTEE'S DISCLAIMER.
The Trustee 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 of the
Company in the Indenture or any statement in the Securities other than its
certificate of authentication or in any document used in the sale of the
Securities other than any statement in writing provided by the Trustee expressly
for use in such document.
SECTION 7.5 NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee with respect to the Securities, the Trustee shall mail to
each Holder of Securities notice of the Default or Event of Default within 90
days after it occurs. Except in the case of a 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 Trust Officers in good faith
determines that withholding the notice is in the interests of Holders of
Securities. Notwithstanding anything to the contrary expressed in this
Indenture, the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless and until a Trust Officer shall have actual knowledge
thereof, or shall have received written notice thereof from the Company at its
principal corporate trust office in New York, New York. The Trustee shall not be
deemed to have actual knowledge of an Event of Default hereunder, except in the
case of an Event of Default under Sections 6.1(1) or 6.1(2) (provided that the
Trustee is the Paying Agent) until a Trust Officer receives written notice
thereof from the Company or any Securityholder that such an Event of Default has
occurred.
SECTION 7.6 REPORTS BY TRUSTEE TO HOLDERS.
Within 60 days after each May 15, beginning with May 15, 1998, the
Trustee, if required by the provisions of TIA ss. 313(a), shall mail to each
Securityholder a brief report dated as of May 15 of such year that complies with
TIA ss. 313(a). The Trustee also shall comply with TIA ss.(b) and ss. 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the Commission and each stock exchange on which the
Securities are listed. The Company agrees to notify the Trustee in writing
whenever the Securities become listed or delisted on or from any stock exchange.
SECTION 7.7 COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in addition to the
compensation for its services. Such expenses may include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the acceptance
or administration of this trust or its actions taken hereunder in whatever
capacity the Trustee is so acting, including the costs and expenses of defending
itself against any claim or liability in connection with the Securities or the
exercise or performance of any of its powers or duties hereunder, including
attorneys' fees and expenses. The Trustee shall notify the Company as soon as
practicable after the Trustee becomes aware of any claim asserted against the
Trustee for which it intends to seek indemnity (though failure by the Trustee
to so notify the Company shall not relieve the Company of its obligations
hereunder unless the Company is prejudiced thereby) and the Company may elect by
written notice to the Trustee to assume the defense of any such claim at the
Company's expense with counsel reasonably satisfactory to the Trustee, PROVIDED,
HOWEVER, that in the case where there is a conflict between the Company and the
Trustee, the Company shall pay the reasonable fees and expenses of counsel
retained by the Trustee.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it through the Trustee's
negligence, bad faith or willful misconduct. The Company shall not be liable for
any settlement of any claim or action effected without the Company's consent,
which consent shall not be unreasonably withheld.
The Company hereby grants the Trustee a security interest in all of
the funds and assets of the Company held by the Trustee pursuant to this
Indenture to secure the performance of the Company's obligations to the Trustee
hereunder.
The obligations of the Company under this Section 7.7 shall survive
the resignation or removal of the Trustee and/or the satifaction or discharge of
this Indenture.
SECTION 7.8 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 7.8.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities then outstanding may remove the
Trustee by so notifying the Trustee in writing and may appoint a successor
Trustee with the Company's written consent. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
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. Immediately after that,
the retiring Trustee shall, upon payment of its charges, transfer all property
held by it as Trustee to the successor Trustee, 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.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the
Company's obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred by it and
compensation earned by it prior to such replacement or otherwise with respect to
the Securities or the Indenture. A successor Trustee shall mail notice of its
succession to each Holder of Securities.
SECTION 7.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1). The Trustee shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA ss. 310(b), including the
optional provision permitted by the second sentence of TIA ss. 310(b)(9).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1 OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at its option and at any time, elect to have Section
8.2 or Section 8.3 be applied to all outstanding Securities upon compliance with
the conditions set forth below in this Article 8.
SECTION 8.2 DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of the above option applicable to this
Section the Company shall be deemed to have been discharged from its obligations
with respect to the outstanding Securities on the date the conditions set forth
in Section 8.4 are satisfied ("Defeasance"). For this purpose, such 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 8.5 and the other
Sections of this Indenture referred to in Paragraphs (a) and (b) below, and to
have satisfied all of its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same following delivery by the Company to the Trustee of an Officer's
Certificate and Opinion of Counsel stating that all such conditions have been
satisfied), except for the following which shall survive until otherwise
terminated or discharged hereunder:
(a) the rights of Holders to receive, solely from the trust
fund described in Section 8.4 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest on
such Securities when such payments are due,
(b) the Company's obligations with respect to such Securities
under Sections 2.4, 2.5, 2.9, 2.10, 2.12 and 4.7.
(c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, and
(d) this Article 8.
Subject to compliance with this Article 8, the Company may exercise its option
under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 with respect to such Securities.
SECTION 8.3 COVENANT DEFEASANCE.
Upon the Company's exercise of the above option applicable to this
Section 8.3, the Company shall be released from its obligations under Sections
4.9, 4.10, 4.11 and 4.12 with respect to the outstanding Securities on and after
the date the conditions set forth in Section 8.4 are satisfied ("Covenant
Defeasance"), and the Securities shall thereafter be deemed to be not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with
Sections 4.9, 4.10, 4.11 and 4.12, but shall continue to be deemed "outstanding"
for all other purposes hereunder. For this purpose, such Covenant Defeasance
means that, with respect to the outstanding Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default
under Section 6.1(4), 6.1(5) or 6.1(6) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and the Securities
shall be unaffected thereby.
SECTION 8.4 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 8.2 or
Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article 8
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (i) cash in an amount in
which such Securities are then specified as payable at stated maturity, (ii)
U.S. Government Obligations applicable to such Securities which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of any
payment of principal of (and premium, if any) and interest, if any, on such
Securities, money in an amount, or (iii) a combination thereof, in any case, in
an amount, sufficient, without consideration of any reinvestment of such
principal and interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge the principal of
(and premium, if any) and interest on the outstanding Securities on the stated
maturity of such principal (and premium, if any) or installment of principal or
interest; PROVIDED that the Trustee shall have been irrevocably instructed in
writing to apply such money or the proceeds of such U.S. Government Obligations
to said payments with respect to the Securities. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 3.1(b) hereof, a
notice of its election to redeem all or any portion of the outstanding
Securities at a future date in accordance with the terms of the Securities and
Article 3 hereof, which notice shall be irrevocable. Such irrevocable redemption
notice, if given, shall be given effect in applying the foregoing.
(b) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Default or Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit or,
insofar as Section 6.1(5) or 6.1(6) is concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under Section 8.2, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of the outstanding Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such Defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Defeasance had not occurred.
(e) In the case of an election under Section 8.3, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the outstanding Securities will not recognize income, gain or loss
for Federal income tax purposes as a result of such Covenant Defeasance and will
be subject to Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such Covenant Defeasance had not
occurred.
(f) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent to Defeasance under Section 8.2 or Covenant Defeasance
under Section 8.3 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
Paragraph (a) above and the related exercise of the Company option under Section
8.2 or Section 8.3 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with respect to the
trust funds representing such deposit or by the Trustee for such trust funds, or
(ii) all necessary registrations under said Act have been effected.
SECTION 8.5 DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS.
All money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 8.4 in respect of the
outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities of all sums due and to become due thereon in respect of
principal (and premium, if any), interest, if any, but such money need not be
segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.4 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 8 to the contrary notwithstanding, subject to
Section 7.7, the Trustee shall deliver or pay to the Company from time to time
upon Company Order any money or U.S. Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 8.4 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect Defeasance or Covenant Defeasance, as applicable, in accordance with this
Article 8.
ARTICLE 9
SATISFACTION AND DISCHARGE
SECTION 9.1 SATISFACTION AND DISCHARGE OF INDENTURE.
The Indenture shall upon Company Order cease to be of further effect
with respect to the Securities (except as to any surviving rights of
registration of transfer or exchange of Securities expressly provided for herein
or pursuant hereto, the rights of Holders of outstanding Securities to receive,
solely from the trust fund described in subclause (ii) of clause (a) of this
Section, payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, and the Trustee, upon
receipt of a Company Order, and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(a) either
(1) all the Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.10 and (B) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 2.5) have been delivered to the Trustee
for cancellation; or
(2) all the Securities not theretofore
delivered to the Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their stated
maturity within one year or
(C) will be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust an amount sufficient to pay
and discharge the entire indebtedness on the Securities, for
principal (and premium, if any) and interest, to the date of
such deposit (in the case of Securities which have become due
and payable) or to the stated maturity or Redemption Date, as
the case may be;
(b) The Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) The Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided fore relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 7.7 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (ii) of clause (a) of this Section 9.1, the obligations of
the Trustee under Section 9.2 shall be unaffected hereby.
SECTION 9.2 APPLICATION OF TRUST FUNDS.
All money deposited with the Trustee pursuant to Section 9.1 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and any interest for whose payment such money has been
deposited or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE 10
SUPPLEMENTAL INDENTURES
SECTION 10.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by Board Resolution, and the Trustee at
any time and from time to time, may amend this Indenture or enter into one or
more indentures supplemental hereto, to be in a form satisfactory to the Trustee
without notice to or consent of any Securityholder for any of the following
purposes:
(1) to comply with Section 5.1; or
(2) to provide for uncertificated Securities
in addition to or in place of certificated Securities; or
(3) to add to the covenants of the Company, for the benefit of
the Holders of all of the Securities, or to surrender any right or power herein
conferred upon the Company; or
(4) to add any Events of Default; or
(5) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with any provision
of this Indenture, provided such other provisions shall not adversely affect the
interests of the Holders of Securities in any material respect.
SECTION 10.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the written consent of the Holders of not less than a majority in
aggregate principal amount of the Securities at the time outstanding, the
Company, when authorized by Board Resolution, and the Trustee may amend this
Indenture or from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of the execution thereof) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture, except as otherwise permitted
by Section 10.1, or of modifying in any manner the rights of the Holders of the
Securities. Subject to Section 10.4, without the consent of each Holder of
Securities, however, an amendment, supplement or waiver, including a waiver
pursuant to Section 6.4, may not:
(1) extend the fixed maturity of any Securities, or reduce the
principal amount thereof or premium, if any, or reduce the rate or extend the
time of payment of interest thereon, without the consent of the Holder of each
Security;
(2) reduce the aforesaid percentage of Securities, the consent
of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of all Securities then outstanding;
(3) waive (except, unless theretofore cured) a default in the
payment of the principal of (and premium, if any on), interest on or redemption
amounts with respect to any Security; or
(4) make any Security payable in money other than that stated
in the Security; or
(5) make any change in Sections 6.4 or 6.6 or in this sentence
of Section 10.2.
Upon the written request of the Company, accompanied by a copy of a
Board Resolution certified by the Secretary or an Assistant Secretary of the
Company authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless the Trustee, in its reasonable discretion,
determines that such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its reasonable discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent shall approve
the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice, setting forth in general terms the substance of such
supplemental indenture, to all Holders of Securities as the names and addresses
of such Holders shall appear on the registry books. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 10.3 COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 10.4 REVOCATION AND EFFECT OF CONSENTS.
Subject to this Indenture, each amendment, supplement or waiver
evidencing other action shall become effective in accordance with its terms.
Until an amendment, supplement or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder even if notation of
the consent is not made on any Security. Any such Holder or subsequent Holder,
however, may revoke the consent as to his Security or portion of a Security, if
the Trustee receives the written notice of revocation before the date the
amendment, waiver or other action becomes effective.
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
provisions of the immediately preceding paragraph, those Persons who were
Holders on 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 after such record date. No consent shall be valid or effective for
more than 90 days after such record date unless consent from Holders of the
principal amount of Securities then outstanding required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder.
SECTION 10.5 NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may request 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 determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms, the
cost and expense of which will be borne by the Company.
SECTION 10.6 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities shall be bound thereby.
ARTICLE 11
MISCELLANEOUS
SECTION 11.1 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provisions shall control.
SECTION 11.2 NOTICES.
Any notices or other communications required or permitted hereunder
shall be in writing, and shall be sufficiently given if made by hand delivery,
or first class mail, postage prepaid (except that any notice by the Trustee to
the Company of a default or an Event of Default under this Indenture shall be by
registered or certified mail, postage prepaid, return receipt requested), or by
a nationally-recognized overnight express courier service (which notices or
communications shall be deemed received the Business Day after the receipt
thereof by such service), addressed as follows:
if to the Company:
Interpool, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Chief Financial Officer
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
The Company or the Trustee by notice to the other may designate additional or
different addresses as shall be furnished in writing by either party. Any notice
or communication to the Company or the Trustee shall be deemed to have been
given or made as of the date so delivered if personally delivered, and five (5)
calendar days after mailing if sent by registered or certified mail (except that
a notice of change of address shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to the address of such Securityholder as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice, as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
If the Company mails any notice or communication to Securityholders,
it shall mail a copy to the Trustee and all Agents at the same time.
SECTION 11.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 11.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.5) 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 (which shall include the statements
set forth in Section 11.5) stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
SECTION 11.5 STATEMENTS REQUIRED IN CERTIFICATE AND OPINION.
Each Certificate and 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 covenant or condition has been complied with.
SECTION 11.6 RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Registrar or Paying Agent may make reasonable rules for its
functions.
SECTION 11.7 RECORD DATE.
Whenever the Company or the Trustee solicits an act of
Securityholders, the Company or the Trustee may fix in advance of the
solicitation of such act a date as the record date for determining
Securityholders entitled to perform said act. The record date shall be not more
than 15 days prior to the date fixed for the solicitation of said act.
SECTION 11.8 BUSINESS DAYS.
If a payment date is not a Business Day, payment may be made on the
next succeeding day that is a Business Day, and no interest shall accrue for the
intervening period.
SECTION 11.9 GOVERNING LAW.
The laws of the State of New York shall govern this Indenture and the
Securities without regard to principles of conflicts of law.
SECTION 11.10 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary thereof. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 NO RECOURSE AGAINST OTHERS.
No shareholder, director or officer, as such, past, present or future,
of the Company or of any successor corporation or trust shall have any liability
for any obligation of the Company under the Securities or the Indenture or for
any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of a 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.
SECTION 11.12 SUCCESSORS.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 11.13 MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 11.14 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
INTERPOOL, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: /s/ Xxxxxx X. Xxxxx
--------------------
Authorized Officer
EXHIBIT A
(FORM OF FACE OF ORIGINAL SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - 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. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY 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 LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
"AFFILIATE" OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) IN A MINIMUM PRINCIPAL
AMOUNT OF $100,000 TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF THE
COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO THE COMPANY, AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM
THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM
DATED JULY 31, 1997. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
INTERPOOL, INC.
7.20% Notes due 2007
CUSIP No. _________ $__________
No. __
Interpool, Inc., a Delaware corporation (the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________ or registered assigns,
the principal sum of $___________ on August 1, 2007 (the "Maturity Date"), and
to pay interest on the outstanding principal amount hereof from August 5, 1997,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
semi-annually (subject to deferral as set forth herein) in arrears on February 1
and August 1 of each year, commencing February 1, 1998 at the rate of 7.20% per
annum until the principal hereof shall have become due and payable, and at the
same rate per annum on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually; PROVIDED, HOWEVER, that if a Ratings Decision (as defined in the
Indenture) shall not have occurred by the 90th day after the Issue Date, the
rate per annum set forth above shall automatically and irrevocably increase to
7.45% per annum effective retroactively from the Issue Date. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and, for any period less than a full
calendar month, the number of days elapsed in such month. In the event that any
date on which the principal of or interest on this Security is payable is not a
Business Day, then the payment payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on such
date. Pursuant to the Registration Rights Agreement, in certain limited circum-
stances the Company will be required to pay Liquidated Damages (as defined in
the Registration Rights Agreement) with respect to this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
January 15 or July 15 immediately preceding the relevant interest payment date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record date and may
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days
prior to such special record date, or may be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that, payment
of interest may be made at the option of the Company by (i) check mailed to the
holder at such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the relevant record
date.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Interpool, Inc.
By: ______________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By: ______________________
Authorized Officer
(FORM OF REVERSE OF SECURITY)
INTERPOOL, INC.
7.20% Notes due 2007
1. INTEREST. Interpool, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above; PROVIDED, HOWEVER, that such rate per annum shall
increase to 7.45% per annum, effective retroactively from the Issue Date, if a
Ratings Decision (as defined in the Indenture) shall not have occurred by the
90th day after the Issue Date. The Company will pay interest semiannually on
February 1 and August 1 of each year, beginning February 1, 1998. Interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of initial issuance of the
Securities; provided, that, if there is no existing Default in the payment of
interest, and if this Security is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
Pursuant to the Registration Rights Agreement, in certain limited
circumstances the Company will be required to pay Liquidated Damages (as defined
in the Registration Rights Agreement) with respect to this Security.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders of the
Securities at the close of business on the January 15 or July 15 next
preceding the interest payment date. The Company will pay principal, premium, if
any, and interest in money of the United States that at the time of payment is
legal tender for payment of public and private debts. The Company, however, may
pay principal, premium, if any, and interest by its check payable in such money.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose; PROVIDED, HOWEVER,
that, payment of interest may be made at the option of the Company by (i) check
mailed to the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been received by the
relevant record date.
The foregoing notwithstanding, principal of and premium, if any, and
interest on Securities which are represented by Global Securities held of record
by the Depositary will be payable in same-day funds.
3. REGISTRAR AND AGENTS. Initially, United States Trust Company of New
York will act as Registrar, Paying Agent and agent for service of notices and
demands. The Company or any of its subsidiaries may act as Paying Agent. The
address of United States Trust Company of New York is 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency Division.
4. INDENTURE; LIMITATIONS. The Company issued the Securities under an
Indenture dated as of August 5, 1997 (the "Indenture"), between the Company and
United States Trust Company of New York, as trustee (in such capacity, the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in effect on the date of
the Indenture. The Securities are subject to all such terms, and the Holders of
the Securities are referred to the Indenture and said Act for a statement of
them.
The Securities are general unsecured obligations of the Company
limited to $75,000,000 aggregate principal amount. The Indenture imposes certain
limitations on the ability of the Company to, among other things, incur liens,
make payments in respect of its Capital Stock, merge or consolidate with any
other Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. OPTIONAL REDEMPTION BY THE COMPANY. The Company may redeem the
Securities, at any time, in whole or from time to time in part, at the election
of the Company, at a Redemption Price equal to the sum of (i) the principal
amount of the Securities being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Securities. "Make-Whole Amount" means, in connection with any optional
redemption of any Security, the excess, if any of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of any interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (as defined in the
Indenture) (which rate shall be determined as of the third Business Day
preceding the date such notice of redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of the Securities
being redeemed.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at his registered address. Securities in
denominations larger than $1,000 principal amount may be redeemed in part, but
only in whole multiples thereof. On and after the Redemption Date interest will
cease to accrue on Securities or portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. This Security is one of a duly
authorized issue of Securities of the Company designated as its 7.20% Notes due
2007, limited in aggregate principal amount to $75,000,000. The Securities are
issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture and subject to the transfer
restrictions as may be contained herein and therein from time to time. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the
transfer of or exchange any Securities selected for redemption or register the
transfer of or exchange any Securities for a period of 15 days before a
selection of Securities to be redeemed.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal, premium, if
any, or interest on any Securities remains unclaimed for two years, the
Trustee and the Paying Agent will pay the money back to the Company at its
written request. After that, Holders may look only to the Company for payment.
10. DISCHARGE PRIOR TO REDEMPTION OR Maturity. Except as set forth in
the Indenture, if the Company irrevocably deposits with the Trustee, in trust,
for the benefit of the Holders, cash, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any and interest on the Securities to redemption or
maturity and comply with the other provisions of the Indenture relating thereto,
the Company will be discharged from certain provisions of the Indenture and the
Securities (including the restrictive covenants described in paragraph 4 above,
but excluding its obligation to pay the principal of and interest on the
Securities).
11. AMENDMENT AND WAIVER. Subject to certain exceptions, without
notice to the Holders of the Securities, the Indenture or the Securities may be
amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Holder of Securities, the Company may amend the Indenture or
the Securities to, among other things, cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the rights
of any Securityholder.
12. SUCCESSORS. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
13. DEFAULTS AND REMEDIES. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in writing in
its exercise of any trust or power with respect to the Securities. The Company
is required to file periodic reports with the Trustee as to the absence of any
Default or Event of Default.
14. TRUSTEE DEALINGS WITH THE COMPANY. United States Trust Company of
New York, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
16. AUTHENTICATION. This Security shall not be valid until the Trustee
or any authenticating agent appointed by the Trustee signs the certificate of
authentication on the other side of this Security.
17. REGISTRATION RIGHTS. Pursuant to the Registration Rights Agreement
between the Company and the Initial Purchaser for itself and on behalf of the
Holders of the Original Securities, the Company will be obligated to consummate
an exchange offer pursuant to which the Holder of this Security shall have the
right to exchange this Security for the Company's 7.20% Notes due 2007, which
will have been registered under the Securities Act, in like principal amount and
having terms identical in all material respects as the Original Securities. The
Holders of the Original Securities shall be entitled to receive certain
liquidated damages 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.
18. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), AND U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: INTERPOOL,
INC., 000 XXXXXXX XXXX XXXX, XXXXXXXXX, XXX XXXXXX, ATTENTION: INVESTOR
RELATIONS.
ASSIGNMENT FORM
If you the holder want to assign this Security, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Security to
_______________________________________________________________
(Insert assignee's social security or tax ID number)
______________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for such agent.
Date: Your signature:
(Sign exactly as
your name appears on the
other side of this
Security)
By:
NOTICE: To be executed by
an executive officer
NOTICE: Signature(s) must be guaranteed by an institution which is a
participant in the Securities Transfer Agent Medallion Program ("STAMP") or
similar program.
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES1
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of Principal Signature of
decrease in increase in Amount of this authorized
Principal Principal Global Security officer of
Amount of Amount of following such Trustee or
Date of this Global this Global decrease (or Securities
Exchange Security Security increase) Custodian
--------------------------------------------------------------------------------------------------------------------------------
--------
1 This schedule should only be added if the Security is issued in global form.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES
Re: 7.20% NOTES DUE 2007 OF INTERPOOL, INC.
This Certificate relates to $______ principal amount of Securities
held in (check applicable box) _____ book-entry or ______ definitive form by
_____ (the "Transferor").
The Transferor (check applicable box):
|_| has requested the Registrar by written order to deliver in
exchange for its beneficial interest in the Global Security held by the
Depositary a Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
|_| has requested the Registrar by written order to exchange or
register the transfer of a Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Securities and as provided in Section
2.9 of such Indenture, the transfer of this Security does not require
registration under the Securities Act (as defined below) because (check
applicable box):
|_| Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.9(c)(2)(A) or Section
2.9(f)(1)(A) of the Indenture).
|_| Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act of 1933, as amended
(the "Securities Act")) in reliance on Rule 144A (in satisfaction of Section
2.9(c)(2)(B) or Section 2.9(f)(1)(B) of the Indenture) or pursuant to an
effective registration statement under the Securities Act (in satisfaction of
Section 2.9(c)(2)(C) or Section 2.9(f)(1)(C) of the Indenture).
|_| Such Security is being transferred in accordance with Rule 144
under the Securities Act, or pursuant to an exemption from registration in
accordance with Regulation S under the Securities Act or to an institutional
"accredited investor" within the meaning of Rule 501(A)(1), (2), (3) or (7)
under the Securities Act that is acquiring the Security for its own account, or
for the account of such an institutional accredited investor, in each case in a
minimum principal amount of $100,000, not with a view to or for distribution
in violation of the Securities Act (in satisfaction of Section 2.9(c)(2)(C) or
Section 2.9(f)(1)(C) of the Indenture).
|_| Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A, in accordance with Rule 144 under the
Securities Act, or to an institutional "accredited investor" within the meaning
of Rule 501(A)(1), (2), (3) or (7) under the Securities Act that is acquiring
the Security for its own account, or for the account of such an institutional
accredited investor, in each case in a minimum principal amount of $100,000, not
with a view to or for distribution in violation of the Securities Act, and an
Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate (in
satisfaction of Section 2.9(c)(2)(C) or Section 2.9(f)(1)(C) of the Indenture).
____________________________
[INSERT NAME OF TRANSFEROR]
By:
Date:
EXHIBIT B
(FORM OF FACE OF EXCHANGE SECURITY)1
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: 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. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY 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 LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
--------
1 Except as provided in Section 2.4(b) of the Indenture.
INTERPOOL, INC.
7.20% Notes due 2007
CUSIP No. _________ $__________
No. __
Interpool, Inc., a Delaware corporation (the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ____________, or registered assigns,
the principal sum of (__________) on August 1, 2007 (the "Maturity Date"), and
to pay interest on the outstanding principal amount hereof from August 5, 1997,
or from the most recent interest payment date (each such date, an "Interest
Payment Date") to which interest has been paid or duly provided for,
semi-annually (subject to deferral as set forth herein) in arrears on February 1
and August 1 of each year, commencing February 1, 1998 at the rate of 7.20% per
annum until the principal hereof shall have become due and payable, and at the
same rate per annum on any overdue principal and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually; PROVIDED, HOWEVER, that if a Ratings Decision (as defined in the
Indenture) shall not have occurred by the 90th day after the Issue Date, the
rate per annum set forth above shall automatically and irrevocably increase to
7.45% per annum effective retroactively from the Issue Date. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months and, for any period less than a full
calendar month, the number of days elapsed in such month. In the event that any
date on which the principal of or interest on this Security is payable is not a
Business Day, then the payment payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), with the same force and effect as if made on such
date.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
January 15 or July 15 immediately preceding the relevant interest payment date.
Any such interest installment not punctually paid or duly provided for shall
forthwith cease to be payable to the holders on such regular record date and may
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date to
be fixed by the Trustee for the payment of such defaulted interest, notice
whereof shall be given to the holders of Securities not less than 10 days prior
to such special record date, or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that, payment
of interest may be made at the option of the Company by (i) check mailed to the
holder at such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto, provided that
proper written transfer instructions have been received by the relevant record
date.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed.
Interpool, Inc.
By: _____________________
Name:
Title:
Attest:
By: ______________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
By________________________
Authorized Officer
(FORM OF REVERSE OF SECURITY)
INTERPOOL, INC.
7.20% Notes due 2007
1. INTEREST. Interpool, Inc., a Delaware corporation (the "Company"),
promises to pay interest on the principal amount of this Security at the rate
per annum shown above; PROVIDED, HOWEVER, that such rate per annum shall
increase to 7.45% per annum, effective retroactively from the Issue Date, if a
Ratings Decision (as defined in the Indenture) shall not have occurred by the
90th day after the Issue Date. The Company will pay interest semiannually on
February 1 and August 1 of each year, beginning February 1, 1998. Interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of initial issuance of the
Securities; provided, that, if there is no existing Default in the payment of
interest, and if this Security is authenticated between a record date referred
to on the face hereof and the next succeeding interest payment date, interest
shall accrue from such interest payment date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are the registered Holders of the
Securities at the close of business on the January 15 or July 15 next preceding
the interest payment date. The Company will pay principal, premium, if any, and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal, premium, if any, and interest by its check payable in such money.
The principal of and interest on this Security shall be payable at the
office or agency of the Company maintained for that purpose; PROVIDED, HOWEVER,
that, payment of interest may be made at the option of the Company by (i) check
mailed to the holder at such address as shall appear in the Security Register or
(ii) by transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been received by the
relevant record date.
The foregoing notwithstanding, principal of and premium, if any, and
interest on Securities which are represented by Global Securities held of record
by the Depositary will be payable in same-day funds.
3. REGISTRAR AND AGENTS. Initially, United States Trust Company of New
York will act as Registrar, Paying Agent and agent for service of notices and
demands. The Company or any of its subsidiaries may act as Paying Agent. The
address of United States Trust Company of New York is 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency Division.
4. INDENTURE; LIMITATIONS. The Company issued the Securities under an
Indenture dated as of August 5, 1997 (the "Indenture"), between the Company and
United States Trust Company of New York, as trustee (in such capacity, the
"Trustee"). Capitalized terms herein are used as defined in the Indenture unless
otherwise defined herein. The terms of the Securities include those stated in
the Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in effect on the date of
the Indenture. The Securities are subject to all such terms, and the Holders of
the Securities are referred to the Indenture and said Act for a statement of
them.
The Securities are general unsecured obligations of the Company
limited to $75,000,000 aggregate principal amount. The Indenture imposes certain
limitations on the ability of the Company to, among other things, incur liens,
make payments in respect of its Capital Stock, merge or consolidate with any
other Person and sell, lease, transfer or otherwise dispose of its properties or
assets.
5. OPTIONAL REDEMPTION BY THE COMPANY. The Company may redeem the
Securities, at any time, in whole or from time to time in part, at the election
of the Company, at a Redemption Price equal to the sum of (i) the principal
amount of the Securities being redeemed plus accrued interest thereon to the
Redemption Date and (ii) the Make-Whole Amount, if any, with respect to such
Securities. "Make-Whole Amount" means, in connection with any optional
redemption of any Security, the excess, if any of (i) the aggregate present
value as of the date of such redemption of each dollar of principal being
redeemed and the amount of interest (exclusive of any interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (as defined in the
Indenture) (which rate shall be determined as of the third Business Day
preceding the date such notice of redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
had not been made, over (ii) the aggregate principal amount of the Securities
being redeemed.
6. NOTICE OF REDEMPTION. Notice of redemption will be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at his registered address. Securities in denominations
larger than $1,000 principal amount may be redeemed in part, but only in whole
multiples thereof. On and after the Redemption Date interest will cease to
accrue on Securities or portions thereof called for redemption.
7. DENOMINATIONS, TRANSFER, EXCHANGE. This Security is one of a duly
authorized issue of Securities of the Company designated as its 7.20% Notes due
2007, limited in aggregate principal amount to $75,000,000. The Securities are
issuable in registered form without coupons in denominations of $1,000 principal
amount and integral multiples thereof. A Holder may register the transfer of or
exchange 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 any taxes and fees required by law or permitted by the
Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption or register the transfer of or exchange any
Securities for a period of 15 days before a selection of Securities to be
redeemed.
8. PERSONS DEEMED OWNERS. The registered Holder of a Security may be
treated as its owner for all purposes.
9. UNCLAIMED MONEY. If money for the payment of principal, premium, if
any, or interest on any Securities remains unclaimed for two years, the Trustee
and the Paying Agent will pay the money back to the Company at its written
request. After that, Holders may look only to the Company for payment.
10. DISCHARGE PRIOR TO REDEMPTION OR MATURITY. Except as set forth in
the Indenture, if the Company irrevocably deposits with the Trustee, in trust,
for the benefit of the Holders, cash, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any and interest on the Securities to redemption or
maturity and comply with the other provisions of the Indenture relating thereto,
the Company will be discharged from certain provisions of the Indenture and the
Securities (including the restrictive covenants described in paragraph 4 above,
but excluding its obligation to pay the principal of and interest on the
Securities).
11. AMENDMENT AND WAIVER. Subject to certain exceptions, without
notice to the Holders of the Securities, the Indenture or the Securities may
be amended with the consent of the Holders of at least a majority in principal
amount of the Securities then outstanding and any existing default or compliance
with any provision may be waived with the consent of the Holders of a majority
in principal amount of the Securities then outstanding. Without the consent of
or notice to any Holder of Securities, the Company may amend the Indenture or
the Securities to, among other things, cure any ambiguity, defect or
inconsistency or make any other change that does not adversely affect the rights
of any Securityholder.
12. SUCCESSORS. When a successor assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor will be
released from those obligations.
13. DEFAULTS AND REMEDIES. If an Event of Default, as defined in the
Indenture, occurs and is continuing, the Trustee or the Holders of a majority in
principal amount of Securities may declare all the Securities to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Securities may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in principal
amount of the Securities then outstanding may direct the Trustee in writing in
its exercise of any trust or power with respect to the Securities. The Company
is required to file periodic reports with the Trustee as to the absence of any
Default or Event of Default.
14. TRUSTEE DEALINGS WITH THE COMPANY. United States Trust Company of
New York, the Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with the Company or its
Affiliates, as if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS. No stockholder, director, officer or
incorporator, as such, past, present or future, of the Company or any successor
corporation or trust shall have any liability for any obligation of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a Security
by accepting a Security waives and releases all such liability. This waiver and
release are part of the consideration for the issuance of the Securities.
16. AUTHENTICATION. This Security shall not be valid until the Trustee
or any authenticating agent appointed by the Trustee signs the certificate of
authentication on the other side of this Security.
17. ABBREVIATIONS. Customary abbreviations may be used in the name of
a Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with rights of
survivorship and not as tenants in common), CUST (= Custodian), AND U/G/M/A (=
Uniform Gifts to Minors Act).
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: INTERPOOL,
INC., 000 XXXXXXX XXXX XXXX, XXXXXXXXX, XXX XXXXXX, ATTENTION: INVESTOR
RELATIONS.
